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Report No. 79

III. Modifications Considered

6.16. System of oral arguments to be retained.-

As already mentioned1 the members both of the Bench and the Bar in India have so far been accustomed to the system of oral arguments. After giving the matter our earnest consideration, we are of the opinion that it would not be desirable to give up the system of oral arguments. What moifications, if any, are needed, in this system would be discussed by us later,2 but by and large we feel that we shall not be justified in dislocating the existing appellate system by giving up the method of oral arguments and replacing it by that of written briefs. There are some practical difficulties and weighty considerations which should not be lost sight of while taking a decision in this matter.

Unlike in India, judges in the United States have law clerks who are generally brilliant law graduates from universities like Harvard or Yale. These clerks study the whole brief and render assistance to the judges in knowing about the different aspects of fact and law in each case. The judges in the United States Supreme Court sit in open court for not more than 8 or 10 days in a month. The rest of the days are spent by them in studying briefs and preparing judgments. The United States Supreme Court normally is in session from the first Monday in October until the end of June the following year. Generally the first two weeks of each month are set apart for hearing cases argued or y, and the last two weeks are spent discussing the cases and writing opinions1.

1. Paras. 6.2 and 6.3, supra.

2. Para. 6.18, infra.

3. Lewis and Others Introduction to the Courts and Judicial Process, (Prentice Hall) (1978), p. 91.

6.17. No oral submissions are made in the United States Supreme Court at the time of admission of appeals-a stage broadly corresponding to what constitutes in India a preliminary hearing. It is obvious that if judges have to spend considerable time in studying lengthy and elaborate written briefs, there would have to be a curtailment of the number of days on which the court holds public sittings. Looking to the conditions which are prevalent in India, we are of the opinion that such a course would be wholly undesirable.

6.18. View taken in the 14th Report.-

We may mention at this stage that the Law Commission presided over by Shri Sctalvad did not favour the adoption of thenAmerican system. It was observed by that Commission in the 14th Report1-

"8 it will be realised that the system operating in the United States proceeds on three fundamental hypotheses. It postulates:

(i) A competent Bar which should be able to prepare and submit an exhaustive and fully documented brief;

(ii) Judges who would be able to comprehend the full hearings of the points involved in an appeal by a mere perusal of the briefs;

(iii) Expert qualified assistants to the Judges who would make research into the questions arising so as to assist the Judges to get thoroughly seized of the briefs filed.

9. We may, perhaps, with some hesitation accept that the first requisite would be available at the Bar of the Supreme Court and the High Courts. It would be difficult to say the same with regard to the second. Our Judges are trained to gather facts and perceive the relevant points of law from fairly full oral arguments. Indeed, they, from time to time, resolve doubts both as to inferences of facts and validity of legal contentions by questions put to counsel.

As to the third, its introduction into the working of the judicial system in our country will be an entirely novel feature. It involves the question whether we "would not be in many cases substituting the efficient Legal Assistants for the Judges. Lawyers in the United States have not infrequently a feeling that cases are disposed of by the Legal Assistants and not by the Judges.

10. What is more, the United States system involves the practice of granting what is called free time to the Judges to peruse the briefs, the Judges working in Court half the time, remaining half being devoted to study and disposal of briefs. It also means the increased cost of the employment of a number of very capable well paid legal assistants. Having regard to the essential difference in the jurisdiction and powers of our Courts and the entirely different conditions in which they function, is the adoption of the American system by us at all practicable?"

The Commission ultimately rejected the suggestion for adoption of the American system.

1. 14th Report, Vol. 1.

6.19. Concise note of arguments to be filed and read-Recommendation.-

At the same time, we are not unmindful of the fact that oral arguments quite often take much more time than is warranted by the facts of the case. In our opinion, considerable saving in the time taken can be effected if we have a system of a concise note of arguments to be presented in advance before the commencement of oral arguments. This would also bring about a certain amount of precision and orderliness, and eliminate desultory submissions. In our opinion, it will be of assistance to the court and a matter of satisfaction to the counsel and the litigants if, in every first civil appeal before the High Court and writ petition other than petition for habeas corpus, a concise note of arguments is filed in court by the parties, and read and studied by the judge, before the commencement of the hearing of the case.

The note should contain, in separately numbered paragraphs, the material facts and all propositions of fact and law that are sought to be raised by the parties before the court, with specific authorities in support thereof noted separately under each lead. In order that the note may be of real assistance to the litigants and the court, it should be drawn up with care and exactitude. Oral arguments should, unless otherwise permitted by the court, be confined to the propositions that are set out in the note. These notes should be exchanged by opposing counsel at least one week before the commencement of the oral arguments. So far as writ petitions are concerned, we shall deal with the matter subsequently also.1

1. Para. 16.15, infra.

6.20. View in 14th Report.-

We may note that the matter was discussed in the 14th Report of the Law Commission1 which did not favour either the introduction of written argument2 or the filing of a statement of cases in appeals. It appears to us, however, that so far as the need for filing a statement of case is concerned having regard to the magnitude of arrears, which, since then, have piled up and call for clearance, a somewhat different approach to the matter is desirable. That is why we are recommending3 modification in that regard.

1. 14th Report (Reform of Judicial Administration), Vol. 1.

2. Para. 6.18, supra.

3. Para. 6.19, supra.

6.21. Shah Committee.-

Looking to the magnitude of the problem, we are inclined to agree, in principle, with the conclusion reached by the High Courts Arrears Committee presided over by Mr. Justice Shah.1 The Committee, while arriving at its conclusion, said:-

"97. It is uniformly complained that lengthy arguments are addressed in many cases on matters which are only of incidental importance ant there is no attempt to concentrate upon the essentials of the dispute between the parties to the litigation. Sometimes passages from evidence are read out in extenso, and decisions are read verbatim from the commencement to the final order. Citation of decision from obscure sources is also a common occurrence.

To obviate all this and to compel the counsel of both sides to concentrate upon the essentials of the dispute, we recommend that unless otherwise ordered by the court, in every appeal or petition to be heard before the High Court, the Advocates for the parties would draw up a concise statement setting out briefly the facts giving rise to the dispute, the points at issue, the propositions of law of fact to be canvassed and the authorities relied upon for each proposition, and the relief claimed. These statements should be exchanged between the advocates and filed in court well in advance of the hearing and the judges should not ordinarily permit the advocate to travel outside such; statement or to cite authorities, not included herein.

It may be note that the High Courts Arrears Committee of 1949 observed that a full statement of the case on law and fact should be filed by the appellant along with the Memorandum of appeal, in all second appeals and in all civil appeals to the High Court a concise statement of the case with relevant law and authority which will in all essential features be presented to the court at the time of the final arguments should be exchanged between the parties and filed in Court, a short time before the hearing actually begins on the lines of the statement of the case in the Privy Council.

The Law Commission did not recommend acceptance of that suggestion but merely recommended the exchange between counsel of lists of authorities they propose to cite in order to prevent surprise and to ensure speedy assistance to the court. In our view, if the statements are properly drawn up and the Advocates are not permitted to travel outside except for compelling reasons, the length of arguments would be considerably reduced".

1. High Courts Arrears Committee Report, (1972), pp. 72-73, para. 97.

6.22. Reading in advance.-

We may observe that the filing of concise note1 of arguments would prove helpful and result in curtailing the time of the court hearing, only if the judge concerned reads beforehand the said concise note of arguments. Otherwise, the preparation of a note wo d prove a mere exercise in futility. There is, in the words of an American jurst,2 in the whole field of procedure as futile as an appellate court solemnly listening to the arguments of counsel without having read and analysed the briefs that counsel have gone-or should have gone-to great pains to prepare.

1. Para. 6.19, supra.

2. Vanderbilt Challenge of Law Reform, 1955, p. 71.

6.23. Oral arguments not to be dispensed with.-

To avoid any possible misconceptions, we would make it clear that it is not suggested that we should, in this country, adopt the American system of "written briefs". But it would be worth while making an experiment aimed a at real reduction in the time taken in the appellate court and therefore a real reduction in costs, without at all fettering the right of counsel to full oral argument of their cases on propositions set out in a concise note.

We do not contemplate doing away with oral arguments. What we contemplate is a method whereby the time taken in oral arguments may, to a certain extent, be reduced and oral arguments could be made more purposeful. A concise note of the arguments filed in the court and received in advance by the counsel would, in our view, go a long way towards achieving this object.

6.24. No time limit on arguments.-

We are also averse to putting a time limit on arguments. The time required for oral argument in each case would depend upon the nature of the case, the questions of fact and law involved in it, the volume of evidence and the number of legal propositions advanced. To prescribe a time limit on arguments would not only cause discontent, but might also result in miscarriage of justice in some cases. Every case is unique and is entitled to the time and individual attention necessary for a fair hearing, considering all the circumstances of the case.

If the presiding judge has read the judgment of the trial court and perused the concise note of arguments in advance, he would be able to regulate the arguments and avoid any desultoriness therein. In this context, we may refer to the observations of the High Courts Arrears Committee presided over by Mr. Justice Shah:1

"98. We are averse to the suggestion made by some Judges and the Members of the Bar that a time limit should be set for arguments before the High Court, as is the practice in the Supreme Court of the United States of America. The Law Commission has in its Report elaborately examined the system in vogue in the Supreme Court of the United States of America and has shown how it is unsuitable to the conditions here.

99. The procedure prevailing in the Supreme Court of the United States of America is entirely different from that in vogue in our High Courts. The practice adopted in the Supreme Court of the United States of America cannot be transplanted here. At the same time we are conscious of the fact that lengthy arguments waste a good deal of time of the Court."

1. High Courts Arrears Committee Report, (1972), pp. 72-73, para. 98-99.

6.25. Scheme to be tried in the High Courts in certain proceedings in the first instance.-

For the present the scheme recommended by us1 regarding concise note of arguments may be tried in the High Courts in regard to regular first appeals and petitions under Article 226 of the Constitution other than those seeking habeas corpus. If this scheme is found successful, it can be extended to regular second appeals and revisions in the High Courts and also to the Lower Civil Appellate Courts.2

1. Para. 6.19, supra.

2. See also para. 18.15, infra.

6.26. Need for working the scheme in proper spirit.-

We may finally state that the scheme recommended by us will be successful only if the Bar and the bench work it in its true spirit.



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