The case for recognising curative petition in Bangladesh

Every litigation must come to an end. Criminal trials are not an exception to this principle. When a person is sentenced to death, the decision too eventually becomes final after it passes certain stages.

Under Bangladesh’s ordinary criminal law, after a Court of Sessions passes a death sentence, the High Court Division (HCD) has to confirm it through a ‘death reference’ under section 374 of the Code of Criminal Procedure, 1898 (CrPC). Again, if the Appellate Division (AD) subsequently upholds the conviction on appeal, and a review petition under Article 105 of the Constitution is also dismissed, the ordinary judicial process comes to an end. However, it may appear later that a party was denied a fair hearing, or an undisclosed conflict gave rise to an apprehension of bias. Under such circumstances, the recognition of a curative petition can help the Supreme Court (SC) of Bangladesh correct an injustice when every other ordinary judicial avenue has been exhausted.

Tap here to add The Daily Star as a trusted source

Curative jurisdiction seeks to reconcile the finality of judgments with the exceptional need to prevent grave injustice. Originally, the doctrine has its roots in Indian case law. It rests on the principle: actus curiae neminem gravabit (‘an act of the court should prejudice no one’). Arguably, it operates against another well-known principle of law: interest reipublicae ut sit finis litium (‘it is in the state’s interest that there be an end to litigation’).

Currently, the concept of curative petition is not formally recognised in Bangladesh. Our Constitution vests the ultimate appellate authority in the AD under Article 103, while Article 105 expressly permits the AD to review its own judgments and orders. Review is therefore the Constitution’s recognised mechanism of judicial self-correction. Although section 561A of CrPC reserves the inherent power of the HCD to prevent abuse of the court process in order to secure the ends of justice, no new appeal can be filed by invoking the section. Nor does the question arise of placing HCD’s decision above the final decision made by AD. Hence, once review is exhausted, there is no further tier of adjudication, even if injustice becomes apparent subsequently.

The Supreme Court of India held that even after dismissal of review, it may exceptionally reconsider a final judgment to prevent miscarriage of justice, particularly where natural justice was violated, or judicial bias undermined the integrity of the decision, e.g., where an affected person was not heard, and where a judge’s action gave rise to a reasonable apprehension of bias.

India addressed such concerns in Rupa Ashok Hurra v Ashok Hurra (2002) case. The Supreme Court of India held that even after dismissal of review, it may exceptionally reconsider a final judgment to prevent miscarriage of justice, particularly where natural justice was violated, or judicial bias undermined the integrity of the decision, e.g., where an affected person was not heard, and where a judge’s action gave rise to a reasonable apprehension of bias. Additionally, the petitioner has to show that the grounds have been raised in the review petition. He/she is also required to obtain certification from a Senior Advocate, undergo preliminary circulation before the senior-most judges, and, where available, the judges involved in the original decision. Curative jurisdiction was, therefore, conceived not as another avenue of appeal, but as an exceptional safeguard against a failure in the integrity of the judicial process.

Similarly, in the case of Navneet Kaur v State (NCT of Delhi) (2014), the sentence given to a death-row prisoner, Devender Pal Singh Bhullar, was ultimately commuted to life imprisonment because of the prolonged delay in deciding his mercy petition and his deteriorating mental condition. The case demonstrated that even after ordinary judicial remedies had been exhausted, exceptional constitutional circumstances surrounding the execution of a death sentence may still justify judicial intervention.

The principle applied in the aforesaid cases holds constitutional resonance in Bangladesh as well. For instance, Article 31 of our Constitution guarantees the protection of law and treatment in accordance with law, Article 32 prohibits deprivation of life or personal liberty except in accordance with law, and Article 35(3) guarantees an accused the right to speedy and public trial by an independent and impartial court.

Again, Article 104 of the Constitution may also be utilised to recognise curative petition as a distinct remedy under our jurisdiction. The provision allows the AD to make orders necessary for doing ‘complete justice’ in any cause or matter pending before it. However, it may be argued that the words ‘pending before it’ restrict the jurisdiction of the AD to entertain curative petitions, and that Article 104 should not be treated as an unrestricted licence to reopen concluded cases after appeal and review have been exhausted.

Finally, a curative jurisdiction should be distinguished from appeal, review, and presidential clemency. If an applicant merely contends that evidence was wrongly assessed, precedents were misunderstood, or the sentence was excessive, such matters fall within the scope of appeal or review. A curative jurisdiction should not become another forum for reconsidering such questions again. Conversely, matters like denial of a legally required hearing, or demonstrable bias, give rise to a curative petition.

In the same way, presidential clemency under Article 49 may alter punishment, or grant a pardon to the convict, but it cannot correct a compromised adjudicative process resulting from bias or denial of proper hearing. In short, clemency answers punishment; curative jurisdiction answers adjudicative failure.

To conclude, the recognition of any post-review jurisdiction rests upon a defensible constitutional foundation. Because, once appeal and review are exhausted, the principle that ‘a litigation must come to an end’ strongly limits any further reconsideration. Nonetheless, where questions arise regarding the transparency and impartiality of the entire procedure, a specific and cautious mechanism such as ‘curative petition’ may be necessary to ensure that the finality of the resolution does not serve as a shield in cases of grave injustice.

The writer is an LLB graduate from Bangladesh University of Professionals.