P. N. Eswara Iyer Vs. The Registrar,
Supreme Court of India  INSC 16 (1 February 1980)
FAZALALI, SYED MURTAZA DESAI, D.A.
CITATION: 1980 AIR 808 1980 SCR (2) 889 1980
SCC (4) 680
CITATOR INFO :
R 1983 SC1125 (8) F 1989 SC1298 (9) RF 1990
SC 538 (4)
Supreme Court Rules 1966-O.XL, rules 2 and 3
Scope of- Disposal of review petitions by circulation without oral arguments-If
violative of Art. 14.
Order XL, rule 2(1) of the Supreme Court
Rules (as amended) provides that an application for review shall be by a
petition and shall be filed within thirty days from the date of the judgment or
order sought to be reviewed. It shall set out clearly the grounds for review.
Sub-rule (3) provides that "unless otherwise ordered by the Court an
application for review shall be disposed of by circulation without any oral
arguments but the petitioner may supplement his petition by additional written
In a petition under Article 32 of the
Constitution the petitioners contended that scuttling of oral presentation and
open hearing is subversive of the basic creed that public justice shall be
rendered from the public seat and that secrecy and circulation are negation of
Dismissing the petitions,
HELD: per Krishna Iyer, S. Murtaza Fazal Ali
and Desai, JJ (Pathak and Koshal JJ concurring).
Unchecked review has never been the rule. A
review petition must be supported by proper grounds because otherwise every disappointed
litigant may avenge his defeat by a routine review petition. [895D] The
original rule required a certificate by the advocate to the effect that the
petition was review-worthy.
If it was so certified then a preliminary
oral hearing followed. After such oral argument the court issued notice to the
other side or dismissed the petition. But as it turned out, laxity in
certification and promiscuity in filing review applications crowded the court
with unwanted review petitions and the very solemnity of finality would be
frustrated if such a game were to become popular. [895E-H] The amended rule is
designed to remove the evil of reckless reviews by the introduction of
preliminary judicial screening in circulation replacing counsel's
If the review petition and written
submissions convinced the court prima facie that material error had marred the
justice or legality of the earlier judgment or order, the case would be posted
for oral hearing in court. Now 'certworthiness' is shifted from counsel to
court. [896H] Circulation in the judicial context merely means not in court
through oral arguments but by discussion at judicial conference. Judges, even
under the amended rule, must meet, collectively cerebrate and reach
conclusions. In a review petition the same judges who have once heard oral
arguments and are familiar with 890 the case direct a hearing in court if they
find good grounds. It is not as if all oral advocacy is altogether shut out.
Where oral presentation is not that essential its exclusion is not obnoxious.
What is crucial is the guarantee of the application of an impartial and open
mind to the points presented. If without much injury a certain class of cases
can be disposed of without oral hearing, there is no good reason for not making
such an experiment. If on a close perusal of the paper book the judges find
that there is no merit or statable case, there is no special virtue in
sanctifying the dismissal by an oral ritual. [898E, 899E, 900C] The rule on its
face affords a wider set of grounds for review for orders in civil proceedings
but limits the grounds vis a vis criminal proceedings to errors apparent on the
face of the record. Here "record" means any material which is already
on record or may with the permission of the court be brought on record. [909C]
The substantive power is derived from Article 137 and is as wide for criminal
as for civil proceedings. Even the difference in phraseology in the rule (r.2)
must be read to encompass the same area and not to engraft the artificial
divergence productive of anomaly. If the expression "record" is read
to mean any material even later brought on record, with the leave of the court,
it will embrace subsequent events, new light and other grounds which are found
in O. 47, r. 1, C.P.C. [909G-H] Sow Chandra Kanta and Anr. v. Sheikh Habib
 3 SCR 933; Lala Ram v. Supreme Court of India & Ors  2 SCR 14
Per Pathak and Koshal JJ (concurring).
Oral hearing is not an essential requirement
if on a preliminary examination a review application is found to be devoid of
substance. A review application attempts nothing more than to obtain a
reconsideration of the judgment of the court disposing of the substantive
proceeding. The merits of the controversy having already been examined the re-
examination sought cannot proceed beyond the controversy already disposed of.
[911C-D] If the judges, on screening the review application, hold that there is
no case whatever for review they will reject it. If on the other hand they find
that a good prima facie case for review has been made out, they will give an
oral hearing in the presence of the parties. There may also be cases where even
after they are satisfied that no prima facie case has been made out they
consider it desirable to hear an applicant orally they will afford him an
opportunity of oral hearing and in the event of a prima facie case being made
out they will issue notice to the respondent and oral hearing will follow, in
the presence of the parties. In short the denial of oral hearing is confined to
the preliminary stage only. It is not possible to hold that at that preliminary
stage also the applicant for review is entitled to be heard orally. The merit
of the oral hearing lies in the fact that counsel addressing the court are able
to discern what are the aspects of the controversy on which more light is
needed. The court can utilise an oral hearing in order to express its doubts on
a point and seek clarification thereon from counsel. If there is no doubt
whatever oral hearing becomes a superfluity and at best a mere formality.
[911F-H] A written submission is capable of careful drafting and explicit
expression, and is amenable to such arrangement in its written content that it
pointedly brings to the notice of the reader the true scope and merit of the
891 It is not correct to say that oral
hearing is mandatory in all classes of cases and at every stage of every case.
[912D] [The question under consideration
being the need for an oral hearing in relation to review applications only,
there is no need to express any opinion on whether an oral hearing is an
imperative requirement in the disposal of other kinds of cases brought before
ORIGINAL JURISDICTION: Writ Petition Nos.
151, 187, 238, 458, 1038, 1069 and 1277 of 1979.
(Under Article 32 of the Constitution) R.K.
Garg, S. Balakrishnan and M.K.D. Namboodiri for the Petitioner, in W.P. No.
Soli J. Sorabjee Sol. General, E.C. Agarwala,
R.N. Sachthey and Miss A. Subhashini for the Respondent, in W.P. No. 151/1979.
Petitioner in person-in W.P. No. 1038/79.
P.R. Mridul and H.K. Puri for the Petitioner,
in W.P. No. 187/79.
A.K. Gupta, Vivek Seth, Miss Madhu
Moolchandani and O.P. Rana for the Respondent No. 1, in W.P. 187/79.
Soli J. Sorabjee, Sol. Genl. E.C. Agarwala,
R.N. Sachthey and Miss A. Subhashini for the Respondent No. 2 in W.P. No.
A.K. Ganguli and D.P. Mukherjee for the
Petitioner in W.P. 238/79. A.K. Ganguli and O.P. Rana for the petitioner in
W.P. No. 458/79.
Soli J. Sorabjee, Sol. General, R.N. Sachthey
and Miss A. Subhashini for the Respondent in W.P. Nos. 458 & 238/79.
G.L. Sanghi and Miss Lily Thomas for the
Petitioners in W.P. Nos. 1069 & 1277/79.
Dr. L.M. Singhvi and Sardar Bahadur Saharya
for the intervener.
The Judgment of V.R. Krishna Iyer, S. Murtaza
Fazal Ali and D.A. Desai, JJ. was delivered by Krishna Iyer, J., R.S. Pathak,
J. gave a separate Opinion on behalf of A.D. Koshal, J. and himself.
KRISHNA IYER, J. Tersely expressed, this
bunch of cases challenges the vires of a recent amendment made by the Supreme
Court under Art. 145 in the matter of review petitions whereby the judges will
decide in circulation, without the aid of oral submissions, whether there is
merit in the motion and, in their discretion, choose to hear further arguments
892 Is orality in advocacy-that genius of
Indo-Anglian Justice-an inalienable and ubiquitous presence in the court
process, or does it admit of abbreviated appearance and-more pertinent to the
point here-discretionary eclipse, at least when it has been preceded by a
sufficient oral session ? Secondly is hearing on Bench in public, in contrast
to considering the matter in conferential circulation, the only hall-mark of
judicial justice, absent which the proceeding always violates the norms of
equality implicit in Art. 14 the limits of "reasonableness" bedrocked
in Art. 19, the procedural fairness rooted in Art. 21 ? And, finally, by resort
to operational secrecy, does rationing or burking of oral hearing travesty the
values of our Justice System ? These basic problems of the forensic process, of
pervasive impact and seminal import, fall for consideration in these writ
petitions under Art. 32 of the Constitution.
The charge is that the novel expedient of
substitution of oral arguments by written submissions and orders in circulation
dispensing with public sitting, save where-and that may be rare-the judges in
their discretion choose to hear arguments in court, is a dangerous deviance
from the fundamentals of the Judicial Process. Apprehending maybe, the
futuristic repercussions of a decision on these questions, even though now
restricted to review petitions, in other fields of 'hearing' at a later time,
the Supreme Court Bar Association has intervened and argued to impugn the
amended rule through its President, Dr. L. M. Singhvi, in supplementation of
parties' submissions. We have allowed even other advocates to make brief
contributions, because, when this Court considers issues of moment and
pronounces thereon, the law so declared binds all: and it is ensouled in
democratic propriety that the voice of reason and instruction be received from
every permissible source in the nation, if processed according to cursus
curiae. This participative principle lends people's legitimation to the
judicial process and strengthens the credentials of the rule of law.
The composite question, which settles the
fate of these petitions, emerges this way. Art. 137 provides for review of
judgments or orders of this Court, subject to the provisions of any law made by
Parliament or any rule made under Art.
145. We are here concerned with a rule made
by this Court.
The rule-making power under Art. 145 is
geared to 'regulating generally the practice and procedure of the Court'. In
particular, Art. 145(1) (b) and (e) authorise such 'judicial' legislation in
the shape of rules as to "the procedure for hearing appeals and other
matters pertaining to appeals" and also "as to the conditions subject
to which any judgment pronounced or order made by the Court may be reviewed and
the procedure for such review". Such rules, like any other law, are
subject to the imperatives of Part III 893 and become non est if violative of
the proscriptions and prescriptions of the Constitution vide Premchand Garg's
case. Even the Supreme Court, in the scheme of our Republic, is no imperium in
The substantive power of review and the
procedure for its exercise are essential for any judicial system if unwitting
injustice is to be obviated to the extent pragmatically possible, without being
blinded by any claim to impervious infallibility in the first judgment. Even
judges, more than other mortals, to correct injustice if the error is
discovered within working limits. Thus, the root principle of judicial review
is profound. Judge Learned Hand commended to the judges the great rule of
humility contained in the oft-repeated words of Cromwell:
"I beseech ye in the bowels of Christ,
think that ye may be mistaken" said Oliver Cromwell just before the battle
of Dunbar. These words Judge Hand said he would like to have written "over
the portals of every church, every court-house and at every cross-road in the
nation." (emphasis added) Such is the high-minded tolerance with which
this Court re- examines its own orders to eliminate the happenstance of
injustice unhampered by judicial hubris.
This Court had framed rules for review, right
from the start, but a certain amendment, recently made, has curtailed oral
hearing in court as a matter of course and this measure of discretionary
truncation is attacked as fundamentally offensive to judicial justice of which
this Court is the highest custodian. "If the salt hath lost his savour,
where- with shall it be salted ?" Surely, this Court's procedure should be
the paradigm, nothing short of it. So, the question is whether it is so heathen
to make oral hearing discretionary at the review stage and at the Supreme Court
level that the rule can be condemned as constitutionally apostate ? Another
fatal infirmity was also pointed out as the arguments proceeded, viz., that a
hostile discrimination had been made by r. 2(1) against litigants who moved for
review in criminal proceedings as against those in the civil jurisdiction. He
will relegate it for consideration to a later stage.
The relevant original rules ran thus:
2. (1) An application for review shall be by
a petition, and shall be filed within thirty days from the date of the 894
judgment or order sought to be reviewed. It shall set out clearly the grounds
for review and shall, unless otherwise ordered by the Court, be accompanied by
a certificate from the Advocate who appeared at the hearing of the case for the
party seeking review, or where the party appeared in person, from any advocate
of this Court, that it is supported by proper grounds.
The certificate shall be in the form of a
(2) No application for review in a civil
proceeding shall be entertained unless the party seeking review furnishes to
the Registrar of this Court at the time of filing the petition for review, cash
security to the extent of two thousand rupees for the costs of the opposite
3. An application for review shall be posted
before the Court for preliminary hearing and order as to the issue of notice to
the opposite party. Upon such hearing, the Court may either dismiss the
petition or direct a notice to the opposite party and adjourn the hearing for
such party to be heard. A petition for review shall as far as practicable be
posted before the same Judge or Bench of Judges that delivered the judgment or
order sought to be reviewed.
4. Where on application for review the Court
reverses or modifies its former decision in the case on the ground of mistake
of law or fact, the Court may, if it thinks fit in the interests of justice to
do so, direct the refund to the petitioner of the court-fee paid on the
application in whole or in part, as it may think fit.
The corresponding amended rules read thus:
2. (1) An application for review shall be by
a petition, and shall be filed within thirty days from the date of the judgment
or order sought to be reviewed. It shall set out clearly the grounds for
(2) No change.
3. [Unless otherwise ordered by the Court] an
application for review shall be disposed of by circulation without any oral
arguments, but the petitioner may supplement his petition by additional written
arguments. The Court may either dismiss the petition or direct notice to the
oppo- 895 site party. An application for review shall as far as practicable be
circulated to the same Judge or Bench of Judges that delivered the judgment or
order sought to be reviewed.
4. No change.
5. Where an application for review of any
judgment or order has been made and disposed of, no further application for
review shall be entertained in the same matter.
(newly inserted) The vital difference, vis a
vis the first point, is that now oral hearing is no longer a right of the
petitioner but facultative with the Bench and the 'circulatory' system replaces
the public hearing method. A brief study of the anatomy of the rules will
highlight the points urged.
Dissecting the rules and comparing their
directives we find that unchecked review has never been the rule. It must be
supported by proper grounds. Otherwise, every disappointed litigant may avenge
his defeat by a routine review adventure and thus obstruct the disposal of the
'virgin' dockets waiting in the long queue for preliminary screening or careful
final hearing. It is perfectly reasonable to insist that the existence of
proper grounds for review should be responsibly vouched for before the further
time of the court is taken. So, the original rule required a certificate to
that effect by the advocate who earlier had appeared in the case. Here, counsel
functioned as an officer of the court and, under the mandate of the old r. 2(1)
the Court granted or refused a certificate of review-worthiness. If it was so
certified, then a preliminary oral hearing followed. After such oral argument,
the court issued notice to the other side or dismissed the petition. The system
was fair enough if the certification process worked well and real errors and
apparent mistakes marring the original judgment were the restricted grounds for
review. But as it turned out, laxity in certification and promiscuity in filing
review applications crowded the court with 'unwanted review babies'. The docket
crisis which quaked the calendar deepened, to the detriment of litigative
justice to the deserving who awaited their turn for hearing.
Even otherwise, frivolous motions for review
would ignite the 'gambling' element in litigation with the finality of
judgments even by the highest court, being left in suspense.
If, every vanquished party has a fling at
'review' lucky dip and if, perchance, notice were issued in some cases to the
opponent the latter-and, of course, the former, -would be put to great expense
and anxiety. The very solemnity of finality, so crucial to judicial justice,
would be frustrated if such a game were to become popular. And it did become
popular, as 896 experience showed. The inflow of meritless review petitions,
which were heard and dismissed, interrupted the stream of public justice. This
Court in Sow Chandra Kanta and Anr. v. Sheikh Habib was faced with this problem
and, while dismissing the review petition, observed how the opportunity for
correction of grave errors was being perverted into the purchase of a fresh
appeal to the same court against its own appellate or other judgment on the
same grounds which were earlier rejected. This Court said:
A review of a judgment is a serious step and
reluctant resort to it is proper only where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility. A
mere repetition, through different counsel, of old and over- ruled arguments, a
second trip over ineffectually covered ground or minor mistakes of
inconsequential import are obviously insufficient. The very strict need for
compliance with these factors is the rationale behind the insistence of
counsel's certificate which should not be a routine affair or a habitual step.
It is neither fairness to the court which decided nor awareness of the precious
public time lost what with a huge backlog of dockets waiting in the queue for
disposal, for counsel to issue easy certificates for entertainment of review
and fight over again the same battle which has been fought and lost. The Bench
and the Bar, we are sure, are jointly concerned in the conservation of judicial
time for maximum use. We regret to say that this case is typical of the unfortunate
but frequent phenomenon of repeat performance with the review label as
passport. Nothing which we did not hear them has been heard now except a couple
of rulings on points earlier put forward. Maybe, as counsel now urges and then
pressed, our order refusing special leave was capable of a different course.
The present stage is not a virgin ground but review of an earlier order which
has the normal feature of finality.
These observations were symptomatic of the
'review syndrome' which, therefore, demanded remedying. And the amended rule
purposefully incarnated under such auspices to remove the evil of reckless
reviews by the introduction of preliminary judicial screening in circulation,
replacing counsel's certification with court's scanning exercise-an added but
necessitous judicial burden. If the review petition and written submissions
(for which provision was made) convinced the Court, 897 prima facie, that
material error had marred the justice or legality of the earlier judgment or
order the case would be posted for oral hearing in court. Otherwise not
'Certworthiness'-an American judicial
shorthand for 'certificate-worthiness'-was, by this amendment, shifted from
counsel to court. This, in pith and substance, is the rationale of the amended
Counsel, at one stage, asked whether there
was back-up empirical research to warrant the assumptions in the amendment,
whether facts and figures about the number and nature of wasted 'review' time
of court and a host of other related aspects were available. No such material
is before us now. It is fair to confess that the scientific method of
undertaking research and study into public problems as prelude to legislation
is a 'consummation devoutly to be wished' and lamentably lacking in our
country; and court management, with special reference to maximisation of
judicial time-a matter of great national moment-is a problem the very existence
of which is currently beyond the keen of juristic research. Where 'awareness'
is absent, ad-hocism is inevitable. But here the experiential evidence of the
judges who considered and decided on the amendment and the inference available
from the decisions on review petitions make good the proposition or makes-do
for empirical research.
Be that as it may, we are satisfied that
enough justification exists in the daily experience of this Court to warrant
the change the way it has been done. Even so, constitutional canons cannot be
contravened even by pragmatic compulsions. Paramountcy is paramountcy and
exigency must bow before it. What, then, are the paramount principles of
constitutionality violated by the amended rule? Absence of public hearing and
oral presentation are the vices identified in counsel's arguments.
Two major submissions were made to invalidate
r. 2(1) .
The scuttling of oral presentation and open
hearing is subversive of the basic creed that public justice shall be rendered
from the public seat, not in secret conclave, that hearing becomes 'deaf' if
oral impressiveness is inhibited by the circulation process, more congenial to
the seclusion of bureaucratic cells, fed on files, than to the audio- visual
argumentation heard in the halls of court, which is the insignia of judicial
justice. Secrecy and circulation are the negation of judicial procedure. A review
is a judicial proceeding and its hearing, to fill the bill, must not run away
from the essentials of processual jurisprudence, however allergic some judges
may be to the 'sound system' which is the heart of our forensics. With
allotropic modifications, counsel's arguments stressed this recurrent theme.
898 We must make it perfectly plain, right at
the outset, that audi alterem partem is a basic value of our judicial system.
Hearing the party affected is too deeply embedded in the consciousness of our constitutional
order. The question is about the quality, content and character of 'hearing' in
the special 'review' situation. Incidentally, we may deal with oral hearing and
its importance in the court process, the possibilities of its miniaturisation
and, in certain categories its substitution by written submissions.
We agree that public hearing is of paramount
significance. Justice, in the Indian Republic, is public;
and if judges shun the halls of court, read
papers at home confer in private and issue final fiats without listening to the
bar as the representative of the seekers of justice, the rule of law could well
darken into an arcane trick and back door diktats issued from
'robed'-adjudicators strain the escutcheon of justice. We also agree that oral
advocacy has a non-fungible importance in the forensic process which the most
brilliant brief cannot match and the most alert judge cannot go without. The
intellectual jallywork of intricate legal reasoning and impassioned sculpture
of delicate factual emphasis may often be beyond the craftsmanship of pen and
paper. There is no controversy that disposal by circulation, Secretariat
fashion, cannot become a general judicial technique nor silent notings replace
Bench-Bar dialogues. We must clarify one point. 'Circulation', in the judicial
context, merely means, not in court through oral arguments but by discussion at
judicial conference. Judges, even under the amended rule, must meet,
collectively cerebrate and reach conclusions. Movement of files with notings
cannot make-do. Otherwise, mutual persuasion, reasoned dissent and joint
judgment will be defeated and machinisation of opinion and assertions of views
in absentia will deprive judicial notices of that mental cross- fertilisation
essential for a Bench decision. The learned Solicitor General strongly urged
that he was at one with counsel opposite on this point. We agree.
The key question is different. Does it mean
that by receiving written arguments as provided in the new rule, and reading
and discussing at the conference table, as distinguished from the 'robed'
appearance on the Bench and hearing oral submissions, what is perpetrated is so
arbitrary, unfair and unreasonable a 'Pantomini' as to crescendo into
unconstitutionality ? This phantasmagoric distortion must be dismissed as too
morbid to be regarded seriously-in the matter of review petitions at the
Supreme Court level.
Let us look at the actuality without being
scary. The rule under challenge does not implicate or attract an original
hearing at all. It 899 relates to 'review' situations. Ex hypothesi, an
antecedent judicial hearing and judicial order exist. Indeed, if a full oral
hearing on the Bench has already taken place the dangerousness of secret
disposals dies out. What is asked for is a review or second look at the first
order. Should this second consideration be plenary? Never. The focus must be
limited to obvious, serious errors in the first order.
Indiscriminate second consideration cannot be
purchased by more payment of court fee. We reject the strange plea one of the
advocates put forward that since the petitioner had paid court-fee for review
he had the right to the full panoply of oral hearing ad libitem covering the
Review must be restricted if the hard-pressed
judicial process is not to be a wasting disease. There are many ways of
limiting its scope, content and modality. The confinement to certain special
grounds, as in Order 47 Rule 1, C.P.C., is one way. The requirement of
counsel's reasoned certificate of fitness (Certworthiness) for review is
another. Judicial screening to discover the presence, prima facie, of good
grounds to hear counsel in oral submission is a third. The first is good and
continues. The second was tried and found ineffective and the third is being
Legislative policy is experimental as life
itself is a trial- and-error adventure. What is shocking about this third alternative?
Judges scrutinise-the same judges who have once heard oral arguments and are
familiar with the case-and, if they do not play truant, direct a hearing in
court if they find good grounds. If there is ground, oral hearing follows. It
is not as if all oral advocacy is altogether shut out. Only if preliminary
judicial scrutiny is not able to discern any reason to review is oral exercise
inhibited. The court process is not a circus or opera where the audience can
clamour for encore. When the system is under the severe stress of escalating
case-load, management of Justice Business justifies forbiddance of frivolous
reviews by scrutiny in limine on the written brief.
Justicing too is in need of engineering.
In many jurisdictions oral submissions and
public hearings are disallowed in like circumstances. In England and America
where orality in advocacy has been apotheosised, certain extended stages of
'hearing' in the superior courts have been slimmed or removed. Even disposal of
petitions for leave in judicial conference, without a Bench hearing, has been
This Court, as Sri Garg rightly emphasised,
has assigned special value to public hearing, and courts are not caves nor
cloisters but shrines of justice accessible for public prayer to all the
people. Rulings need not be cited for this basic proposition. But every
judicial exercise need 900 not be a public show. When judges meet in conference
to discuss it need not be televised on the nation's network.
The right to be heard is of the essence but
hearing does not mean more than fair opportunity to present one's point on a
dispute, followed by a fair consideration thereof by fair- minded judges. Let
us not romanticise this process nor stretch it to snap it. Presentation can be
written or oral, depending on the justice of the situation. Where oral
persuasiveness is necessary it is unfair to exclude it and therefore, arbitrary
too. But where oral presentation is not that essential, its exclusion is not
obnoxious. What is crucial in the guarantee of the application of an
instructed, intelligent, impartial and open mind to the points presented. A
blank judge wearied by oral aggression is prone to slumber while an alert mind
probing the 'papered' argument may land on vital aspects. To swear by orality
or to swear at manuscript advocacy is as wrong as judicial allergy to arguments
in court. Oftentimes, it is the judge who will ask for oral argument as it aids
him much. To be left helpless among ponderous paper books without the oral
highlights of counsel, is counterproductive. Extremism fails in law and life.
We agree that the normal rule of the judicial
process is oral hearing and its elimination an unusual exception. We are now on
the vires of a rule relating to review in the highest court. A full-dress
hearing, to the abundant accompaniment of public presence and oral submission,
is over. It is a second probe. Here written arguments are given. The entire
papers are with the judges. The judges themselves are the same persons who have
heard oral presentation earlier. Moreover, it is a plurality of judges, not
only one. Above all, if prima facie grounds are made out a further oral hearing
is directed. Granting basic bona fides in the judges of the highest court it is
impossible to argue that partial foreclosure of oral arguments in court is
either unfair or unreasonable or so vicious an invasion of natural justice as
to be ostracised from our constitutional jurisprudence. It must be remembered
that review is not a second dose of the same arguments once considered and
rejected. The rejection might have been wrong but that cannot be helped.
Dissenting minorities regard the dominant majorities wrong in their judgments
but there is no helping it.
It may not be inept to refer to the critical
distinction, even where review of fundamental rights proceeding is sought,
between an original or virgin hearing and a second look at or review of the
order already passed after a full hearing. In Lala Ram's case this Court
accented on the essential distinction between an original application for the
901 enforcement of fundamental rights and an application to review the order
made therein. It was there observed:
The main purpose of a review petition is not
to enforce a fundamental right, but to reopen an order vitiated by an error on
the face of the record or for such other reasons. But it is said that the
effect of reopening of the earlier order would be to restore his application to
enforce the fundamental right and, therefore, in effect and substance, an
application to review such an order is also an application to enforce the
fundamental right. It may be that this is a consequence of reopening an order,
but the application itself, as we have said, is not to enforce the fundamental
Is there any nexus between the elimination of
oral advocacy and the goal of dispensation of justice ? Counsel urge there is
none. We cannot agree. The goal to be attained is maximisation of judicial time
and celerity of disposal of review petitions. And, despite the heavier burden
thrown on the judges during the hours outside court sittings by agreeing to
read through and discuss the review papers for themselves, there is obvious
acceleration of disposal of review petitions without intrusion into court time.
Equally clearly, the benches are able to spare more time for hearing cases. To
sum up, the advantages of the circulation system linked up with the objects of
saving judge-time in court and prompter dispatch of review petitions are
obvious. To organize review Benches of the same judges who first heard the case
only to last for a few minutes or a little longer, then to disperse and
re-arrange regular Benches, especially when most of the review petitions are
repeat performances in futility, is a judicial circus the court can ill afford.
The rule is rational, the injury is marginal.
The magic of the spoken word, the power of
the Socratic process and the instant clarity of the bar-bench dialogue are too
precious to be parted with although a bad advocate can successfully spoil a
good case if the judges rely only on oral arguments for weaving their decision.
The written brief, before careful judges, can be a surer process of deeper
communication than the 'vanishing cream' of speaking submissions. And a new
skill-preparation of an effective brief, truly brief, highly telling and
tersely instructive- is an art of the pen worth the acquisition especially
when, in practice, there are many gifted lawyers who go with Goldsmith who
'wrote like an angel and talked like poor Paul'. India is neither England nor
America and our forensic technology must be fashioned by our needs and
902 Indeed, in this Court, counsel have begun
to rely heavily, with good reason, on written submissions and oral
'sweeteners'. The Bench can never go it alone. The bar must collaborate and
Nor is there any attempt, in this circulation
rule, to run away from the open. Secret sittings, exclusion of the public and
cabals in conclave are bÍte noire for the judicial process. A review implies an
earlier full hearing and, if warranted, a future further hearing. Every measure
has to be viewed in perspective, not out of focus. The consternation that the
court, by hidden procedures, may undo the 'open' heritage is a chimerical fear
or a disingenuous dread.
In other jurisdictions which our jurists hold
in anglophilic esteem, this practice is current coin. The balancing of oral
advocacy and written presentation is as much a matter of principle as of
pragmatism. The compulsions of realities, without compromise on basics, offer
the sound solution in a given situation. There are no absolutes in a universe
of relativity. The pressure of the case-load on the judges' limited time, the
serious responsibility to bestow the best thought on the great issues of the
country projected on the court's agenda, the deep study and large research
which must lend wisdom to the pronouncements of the Supreme Court which enjoy
awesome finality and the unconscionable backlog of chronic litigation which
converts the expensive end-product through sheer protraction into sour
injustice-all these emphasise the urgency of rationalising and streamlining
court management with a view to saving court time for the most number of cases
with the least sacrifice of quality and turnover. If without much injury, a
certain class of cases can be disposed of without oral hearing; there is no
good reason for not making such an experiment. If, on a close perusal of the
paper-book, the judges find that there is no merit or statable case, there is
no special virtue in sanctifying the dismissal by an oral ritual. The problem
really is to find out which class of cases may, without risk of injustice, be
disposed of without oral presentation. This is the final court of provisional
infallibility, the summit court, which not merely disposes of cases beyond
challenge, but is also the judicial institution entrusted with the
constitutional responsibility of authoritatively declaring the law of the land.
Therefore, if oral hearing will perfect the process it should not be dispensed
with. Even so, where issues of national moment which the Supreme Court alone
can adequately tackle are not involved, and if a considerable oral hearing and
considered order have already been rendered, a review petition may not be so
demanding upon the judge's 'Bench' attention, especially if, on the face of it,
there is nothing new, nothing grave at stake. Even here, if there is some case
calling for examination or suggestive 903 of an earlier error, the court may
well post the case for an oral hearing. (Disposal by circulation is a
calculated risk where no problem or peril is visible.) Oral argument has been
restricted at several stages in the judicial process in many countries. In the
United States the problem of a large number of frivolous petitions for re-
hearing (in our diction, review) filed by counsel provoked the court into
framing restrictive rules of hearing. One of the rules prescribes:
A petition for rehearing is not subject to
oral argument, and will not be granted, unless a justice who concurred in the
judgment or decision desires it, and a majority of the court so determines.
In England, leave to appeal to the House of Lords
is a pattern of proceedings where obligatory oral hearing does not always
exist. The recent practice direction may be usefully referred to here:
As from October 1, 1976 Petitions for leave
to appeal to the House of Lords will be referred to an Appeal Committee
consisting of three Lords of Appeal, who will consider whether the petition
appears to be competent to be received by the House and, if so, whether it
should be referred for an oral hearing.
Where a petition is not considered fit for an
oral hearing, the Clerk of the Parliaments will notify the parties that the
petition is dismissed.
Justice John M. Harlan of the U.S. Supreme
Court wrote, while explaining the need for controlling court work within
manageable proportions, ...... it would be short sighted and unwise not to
recognise that preserving the certiorari system in good health, and in proper
balance with the other work of the Court, are matters that will increasingly
demand thoughtful and imaginative attention. As I have tried to show, the
essence of the problem as things stand today is to guard against wasteful
encroachments upon the Court's time by preventing an increase in, if not
reducing, the volume of improvident applications for certiorari.
(emphasis added) 904 It is significant that
in the U. S. Supreme Court leave to appeal is decided in conference, not in
court and even in regular hearing the maximum time for argument is often
restricted in the highest court. Under r. 28 it is one hour for each side. The
mechanics of controlling argument time is interesting and instructive.
Counsel arguing should keep track of his own
time- when he started and how much he has left. There is large clock in front
of him. A note on the counsel table admonished counsel not to ask the Chief
Justice what time remains.
When counsel has only five minutes left, a
white light on the lectern immediately in front of him goes on. When time has
expired, a red light goes on. The Chief Justice is likely to stop counsel
immediately, seldom allowing him to do more than to finish his sentence. The
red light also marks the time to recess for lunch at two o'clock, and the end
of the day's session at 4.30 p.m.
The rationale of reducing oral submissions
without danger to efficacy or advocacy is explained by George Rossman,
Associate Justice of the Supreme Court of Oregon:
Crowded dockets have forced appellate courts
to curtail the time allotted for oral argument, with the result that some
members of the profession wonder whether courts care for oral argument.. The
practice of today shows that advocacy can be effective even though the period
of delivery is short. Some attorneys can be effective even though the period of
delivery is short.
Some attorneys can do wonders in thirty
minutes when nothing more is available.
The English practice, of course, is
different. Delmar Karlan has correctly set out the situation:
In the United States, oral arguments are
secondary in importance to the briefs, and are rigidly limited in duration. In
the United States Supreme Court, one hour is allowed to each side, but in many
appellate courts, less time that is permitted, frequently no more than fifteen
minutes Or a half-hour for each side. Reading by counsel is frowned upon. The
judges do not wish to hear what they can read for themselves. They expect to
get all the information they need 905 about the judgment below, the evidence
and the authorities relied upon from studying the briefs and record on appeal.
They do not even encourage counsel to discuss in detail the precedents claimed to
govern the decision, preferring to do that job by themselves in the relative
privacy of their chambers, with or without the assistance of law clerks.
In England, where there are no written
briefs, oral arguments are all important. They are never arbitrarily limited in
duration. While some last for only a few minutes, others go on for many days,
even weeks. The only control ordinarily exercised over the time of oral
argument are informal, ad hoc suggestions from the judges.
The methods of the Marble Palace in
Washington D.C. have some relevance though certainly not compulsiveness for us.
John Frank writes:
As the docket of the Court became more
crowded, necessarily the time allowed for argument had to shrink. Under today's
system the time is either a half- hour or an hour for each side, depending on
the complexities of the case. This obviously precludes long introductions or
eloquent perorations. Time is usually rigidly controlled; the legend is that
Chief Justice Hughes once cut off an attorney in the middle of the word
"if". If there are not too many interruptions, the hour is
sufficient; lawyers must learn to be brief.
We assume that judges will be up to the
We have stated enough to establish that
judicial justice is not sabotaged by the eclipse of oral argument in a small
sector of the forensic process. That is all that has been done by the
amendment. A brief comparison between the earlier and the current position will
bring this out.
In the earlier rule a certificate by the
lawyer was a condition precedent for entertainment of the review proceeding. In
the revised rule, no certificate by counsel but certification by the Bench
that, prima facie an infirmity of the kind mentioned in the rule vitiates, the
judgment takes its place. Thereafter in both cases oral advocacy follows. Thus
the only difference is not, as is sometimes assumed, that oral arguments are
for the first time and finally cut out. Even now, oral hearing may be given and
is given, not routinely but if ground is made out to the satisfaction of the
judges who first heard the case (ignoring exceptional situations for the
present). We have stated enough to repel 906 the attack on the vires of the
rule. Nothing arbitrary, nothing arcane, nothing obnoxious, given a sober appraisal.
The possible impression that we are debunking
the value of oral advocacy in open court must be erased. Experience has shown
that, at all levels, the bar, through the spoken word and the written brief,
has aided the process of judicial justice. Justicing is an art even as advocacy
is an art. Happy interaction between the two makes for the functional
fulfilment of the court system. No judicial 'emergency' can jettison the vital
breath of spoken advocacy in an open forum. Indeed, there is no judicial cry
for extinguishment of oral argument altogether. But the time has come for a
proper evaluation of the role of oral argument at the appellate level in the
decisional process. Justice Harlan has insisted that oral argument should play
a leading part. It is not "a traditionally tolerated part of the appellate
process" but a decisively effective instrument of appellate advocacy. He
rightly stresses that there are many judges "who are more receptive to the
spoken than the written word". He hits the nail on the head when he
For my part, there is no substitute, even
within the time limits afforded by the busy calendars of modern appellate
courts, for the Socratic method of procedure in getting at the real heart of an
issue and in finding out where the truth lies.
We wholly endorse the conclusion of that
experienced Judge of the United States Supreme Court when he concludes his
thesis on oral arguments:
Oral argument is exciting and will return
rich dividends if it is done well. And I think it will be a sorry day for the
American bar if the place of the oral argument in our appellate courts is
depreciated and oral advocacy becomes looked upon as a Performa exercise which,
because of tradition or because of the insistence of his client, a lawyer has
to go through.
The importance of oral advocacy has been the
subject of many articles by learned writers. As Frederick Bernays Wiener writes
in the Harvard Law Review:
Appellate judges, virtually without
exception, say that a case should never be submitted without oral argument. A
good many are on record in print to the same effect, and 907 add that they feel
a sense of genuine regret whenever the clerk announces that a case is being
submitted on briefs alone. These expressions reflect the fact the task of judgment
is infinitely harder when counsel is not present to be questioned regarding his
exact position or the limits of a principle he has argued in the brief.
We concur with the view expressed by American
Judges on oral advocacy In the Supreme Court, flexibility is especially
essential Chief Justice Hughes in 1928 characterised the argument before the
Supreme Court as "oral discussions". The then Professor Frankfurter
stated in 1933, "The atmosphere of the Court is uncongenial to oratory and
the restrictions imposed on counsel tend to deflate rhetoric. But true
argument-the exploration of issues, particularly through sharp questioning from
the bench-continues to be one of the liveliest traditions of the Court."
Thus, among the methods of persuasion, the power of the spoken word cannot be
sacrificed without paying too high a price in the quality of justice especially
in the Supreme Court litigation. Maybe, that the brief is valuable; indeed, a
well prepared brief gives the detailed story of the case;
the oral argument gives the high spots. The
supreme success of oral argument and the grave risk of jettisoning it from the
repertoire of persuasive arts in the judicial process consists in George
The oral argument can portray the case as a human
experience which engulfed the parties but which they could not solve. Thus, the
oral argument can help to keep the law human and adapted to the needs of life.
It typifies the Bar at its best.
We may sum up that the value of oral
submissions need not be under-rated nor of written briefs over-rated. A blend
of both is the best. It is apt to repeat the words of Judge Brian Mckenna.
The fault is that the rules of our procedure
which by their discouragement of written argument make possible extensively protracted
bearings in open court.
Those responsible might think more of
changing them. In civil cases a written argument supplemented by a short oral
discussion, would sometimes save a great deal of time.
908 The judicial process is in crisis not
because there is a flood of cases flowing into the courts. In a developing
country with an awakened people and democratic rights, it is inevitable that
the litigative Ganga may swell in its stream, but as justice Warren Burger
In the final third of the century we are
still trying to operate the courts with fundamentally the same basic methods,
the same procedures and the same machinery, Roscoe Pound said were not good
enough in 1906. In the super-market age we are trying to operate the courts
with cracker-barrel corner grocer methods and equipment-vintage 1900.
We have to introduce management techniques
and sensitive skills in the administration of justice if its present
pathological conditions are to receive therapeutic attention. The Rule
regarding the disposal of review petitions by circulatory conference,
supplemented by oral hearing in appropriate cases, is one small step in the
right direction. Indeed, by modernising our procedure we are furthering social
justice for which the litigant community is waiting.
We have set out the parameters of judicial
procedure vis-a-vis original hearings and review hearings having due regard to
the realities of forensic life. In the dynamics of hearing orality does play a
role at the first round, but at the second round in the same court is partly
After all, romance with oral hearing must
terminate at some point. Nor can it be made a "sacred cow" of the
judicial process. Comparative law lends confidence and from that angle we may
refer to Halsbury (Vol. 10, para 761) where disposal, without oral hearing, of
petitions to leave to appeal to the House of Lords is mentioned. Likewise,
American Jurisprudence (Vol. 5 para 979 especially footnote 13) endorses a
Sri Mridul pressed upon us that this
judge-made legislation at the highest level was so plainly violative of Art.
14-an objection not spelt out in any writ petition before us that, without
seeking refuge under the rule of practice that a point not raised in the writ
petition may not be allowed to be urged, the judges must invalidate their own
handiwork. Surely, Justice and Truth are never afraid of exposure nor bothered
about prestige. Certainly, drafting legislation is not an easy art and judges
are not artists beyond their orbit. Even otherwise, Homer nods. Therefore, if
we find our rules void we must declare so and we will.
The omission of the ground of discrimination
in the pleadings may often forbid the argument because the other side may be
prejudiced or the necessary facts may not be on record. But here 909 no such
disability exists. A technical objection should not throw out a suitor from the
plea for justice. After all, the courts belong to the people, as Jerome Frank
once said. And litigants are legal patients suffering from injustices seeking
healing for their wounds. Would you tell a sufferer in hospital that because he
disclosed a certain symptom very late therefore he would be discharged without
treatment for the sin of delayed disclosure ? Humanism, which, at bottom
sustains justice, cannot refuse relief unless, by entertaining the plea,
another may sustain injury. We have permitted the contention and proceed to
The rule, on its face, affords a wider set of
grounds for review for orders in civil proceedings, but limits the ground
vis-a-vis criminal proceedings to 'errors apparent on the face of the record'.
If at all, the concern of the law to avoid judicial error should be heightened
when life or liberty is in peril since civil penalties are often less
traumatic. So, it is reasonable to assume that the framers of the rules could
not have intended a restrictive review over criminal orders or judgments. It is
likely to be the other way about. Supposing an accused is sentenced to death by
the Supreme Court and the 'deceased' shows up in court and the court discovers
the tragic treachery of the recorded testimony. Is the Court helpless to review
and set aside the sentence of hanging? We think not. The power to review is in
Art. 137 and it is equally wide in all proceedings. The rule merely canalises
the flow from the reservoir of power. The stream cannot stifle the source.
Moreover, the dynamics of interpretation depend on the demand of the context
and the lexical limits of the text. Here 'record' means any material which is
already on record or may, with the permission of the court, be brought on
record. If justice summons the judges to allow a vital material in, it becomes
part of the record, and if apparent error is there, correction becomes
The purpose is plain; the language is elastic
and interpretation of a necessary power must naturally be expansive. The
substantive power is derived from Art. 137 and is as wide for criminal as for
civil proceedings. Even the difference in phraseology in the rule (Order 40
Rule 2) must, therefore, be read to encompass the same area and not to engraft
an artificial divergence productive of anomaly.
If the expression 'record' is read to mean,
in its semantic sweep, any material even later brought on record, with the
leave of the court, it will embrace subsequent events, new light and other
grounds which we find in Order 47 Rule 1 C.
P. C. We see no insuperable difficulty in
equating the area in civil and criminal proceedings when review power is
invoked from the same source.
910 True, the review power vis-a-vis criminal
matters was raised only in the course of the debate at the Bar. But when the
whole case is before us we must surely deal comprehensively with every aspect
argued and not piecemeal with truncated parts. That will be avoidance of our
obligation. We have, therefore, cleared the ground as the question is of
moment, of frequent occurrence and was mooted in the course of the hearing.
This pronouncement on review jurisdiction in criminal proceedings sets at rest
a possible controversy and is as much binding on this Court itself (unless
over-ruled) as on litigants. That is the discipline of the law of precedents
and the import of Art. 141.
As we conclude, we wish to set the sights
aright vis-a-vis oral hearings in judicial proceedings. To put superstitious
faith in oral submissions or unlimited argumentation as the sole means of
presentation and persuasion and to debunk the potency of well drawn-up
manuscript representations may be condemned as absurd. True, our judicial
culture nourishes oral advocacy and public hearing since secret cerebrations
and cabal deliberations are ordinarily anathema. Speaking generally, oral
advocacy is a decisive art in promoting justice. The Bench cannot dispense with
the Bar. In our system advocacy becomes functional when present viva voce and
is enfeebled if presented in muted print. We do not claim that orality can be
given a permanent holiday. Such an attitude is an over- reaction to argumentum
ad nauseum. But we must importantly underscore that while lawyer's advocacy
cannot be made to judicial measure especially if judges are impatient, there is
a strong case for processing argumentation by rationalisation, streamlining,
abbreviation and in, special situations, elimination. Review proceedings in the
Supreme Court belongs to the last category. There is no rigidity about forensic
strategies and the court must retain a flexible power in regard to limiting the
time of oral arguments or, in exceptional cases, eliminating orality altogether,
the paramount principle being fair justice.
Therefore, it is quite on the cards that
where no injury to justice will be all, orality may suffer partial eclipse in
the shape of time-limitation or substitution by written submission even in
categories other than review proceedings.
All that we mean to indicate is that the mode
of 'hearing', whether it should be oral or written or both, whether it should
be full-length or rationed, must depend on myriad factors and future
developments. Judges of the Supreme Court must be trusted in this regard and
the Bar will ordinarily be associated when decisions affecting processual
justice are taken. We thus see no disparity given flexibility in decoding the
meaning of meanings.
We see no force in the challenges and do hope
that the Bar will make its contribution to making experiments in modernization
and humanization of the Justice System and court culture.
911 PATHAK, J. We are in general agreement
with our brother V. R. Krishna Iyer on the points directly in controversy in
this writ petition, but we consider it desirable to say a few words on certain
aspects concerning the scope of Rule 3 of Order XL of the Supreme Court Rules,
At the outset, we may state that as we are
considering the question of the need for an oral hearing in relation to a
review application only, we refrain from expressing any opinion on the point
whether an oral hearing is an imperative requirement in the disposal of other
kinds of cases brought before the Court. That is a point to which, we think, we
should address ourselves only when it directly arises.
In regard to a review application we are
clear that an oral hearing is not an essential requirement if on a preliminary
examination the review application is found to be devoid of substance. A review
application is an attempt to obtain a reconsideration of the judgment of the
court disposing of the substantive proceeding. It attempts nothing more. The
merits of the controversy have already been examined by the Court and, in view
of the ordinary scope of the power of review, the re-examination sought cannot
proceed beyond the controversy already disposed of. It is substantially the
same ground traversed again, either entirely or in part. However, the Rule
takes care to provide for oral arguments should the Court consider that
That necessity may arise in either of two
cases. On the review application being placed before the judges, they will
consider it together with any additional written arguments filed by the
petitioner in supplementation of the review application. If the judges hold on
that screening of the review application that there is no case whatever for
review, they will reject the review application. On the contrary, they may find
that a good prima facie case for review has been made out, and so they will
direct notice to issue to the respondent, and upon that an oral hearing will
take place in the presence of the parties. That is one occasion on which an
oral hearing is necessary. If the judges are not convinced that a prima facie
case has been made out by the review application, but are also not satisfied
that there is no merit whatever in it, and are of opinion that in order to come
to a definite opinion prima facie on the merits of the review application it is
desirable to hear the applicant orally they will notify him accordingly and
afford an opportunity of oral hearing. On such oral hearing, the judges may
dismiss the review application if finally satisfied that there is no prima
facie case for review, but in the event of a prima facie case being made out
they will issues notice to the respondent and an oral hearing will follow in
the presence of the parties. It is apparent that the denial of oral argument is
confined to the preliminary stage 912 only, when the review application is
placed before the judges and, as it were, they screen it for the purpose of
determining whether there is reason to proceed further in the matter or whether
it merits outright rejection. It is not possible to hold on principle that at
that preliminary stage also, the applicant for review is entitled to be heard
orally. The merit of an oral hearing lies in this that counsel addressing the
court are able to discern what are the aspects of the controversy on which more
light is needed. The Court likewise can utilise an oral hearing in order to
express its doubts on a point and seek clarification thereon from counsel. But
if there is on doubt whatever that the review application is totally without
substance, an oral hearing becomes a superfluity and, at best, a mere
A written submission is capable of careful
drafting and explicit expression, and is amenable to such arrangement in its
written content that it pointedly brings to the notice of the reader the true
scope and merit of the submission. We do not believe that a written submission
in a review application cannot do adequate justice in the matter of setting
forth the case of the litigant. If there is need for an oral hearing it is for
the reason mentioned earlier, that counsel come to know of the doubts in the
mind of the Court and the court has an opportunity of having its doubts
resolved. It is this feature of an oral hearing which gives to it its primary
value and relevance. But that an oral hearing is mandatory in all classes of cases
and at every stage of every case is a proposition to which we find ourselves
unable to accede.
The writ petition is dismissed, but without
any order as to costs.
P.B.R. Petitions dismissed.