Writ to Cancel the requirement of certificate by Senior counsel in filing Curative Petition.
Cancel the
requirement of certificate by Senior counsel in filing Curative Petition.
Human
Rights Activist Mursalin Asijat Shaikh from Pusad a remote Tahsil of Yavatmal District filed the Writ Petition in the Supreme Court.[ Writ
Petition Diary No. 21906 of 2020.]
Poor people will not be
able to pay fees of the Senior Counsel and they will be deprived of the
facility of curative petition.
The supreme court
in “Rupa Ashok Hurra Vs. Ashok Hurra & Anr.” reported
as 2002 (4) SCC 388, created new jurisdiction of curative petition
after dismissal of Review petition. But in the said judgment one
condition is laid down that curative petition should be accompanied with the
certificate of Senior counsel that the grounds taken in the Curative Petition
were also taken in Review Petition.
The said condition is
itself against the law laid down by the constitution Bench in Prem Chand Garg’s
case. In Prem Chand Garg Vs. Excise Commissioner, U.P. reported
as AIR 1963 SC 996 it is categorically held that if a rule or
an order imposes a financial liability on the petitioner at the thresh-hold of
his petition and that too for the benefit of the respondent, and non-compliance
with the said rule or order brings to an end the fate of the said petition,
that must be held to constitute an infringement of the fundamental rights guaranteed to the citizens to move Supreme Court.
In Tamilnad
Mercantile Bank Shareholders Welfare Association Vs. S.C. Sekar & Ors
reported as (2009) 2 SCC 784, this
Court declared that an aggrieved person cannot be left without the remedy and
that access to justice is a human right and in certain situations even a
fundamental right.
Constitution Bench in Anita
Kushwaha Vs. Pushap Sudan, 2016 (8) SCC 509 held that:
“Four
main facets that, in our opinion, constitute the essence of access to justice
are :
i) The State must provide an effective
adjudicatory mechanism;
ii)
The mechanism so provided must be reasonably accessible in terms of distance;
iii)
The process of adjudication must be speedy; and
iv)
The litigant’s access to the adjudicatory process must be affordable.
The Petitioner prayed for
deleting said condition from the rules of ‘Handbook on Practice And Procedure and office procedure’ of the Supreme Court.
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