Report No. 124
4.11. The Law Commission is of the firm opinion that this partnership principle of sharing joint responsibility would be practicable and feasible and would have the inbuilt potentiality to avoid friction and confrontation.
4.12. One of ugliest features of the procedure for hearing of matters in the High Courts and the Supreme Court is a reverential regard for oral arguments. The Law Commission, after having recalled that the oral arguments in the Supreme Court of the United States are rigidly limited in duration, usually not extending beyond half an hour, a note was taken of the fact that even though no written briefs are presented before the House of Lords in advance, oral arguments hardly last an average of 3 days and occasionally up to 20 days and is a primary external influence on the court's conclusion.1
The Commission ultimately recommended that a system of a concise note of arguments be presented by the parties in advance before the commencement of oral arguments and oral arguments should, unless otherwise permitted by the court, be confined to the propositions that are set out in the note which note must be exchanged by the opposing counsel at least one week before the commencement of the oral arguments.2 The Commission expressed its aversion to putting a time limit on oral arguments.3
1. LCI, 79th Report (1979), paras. 6.6, 6.7 and 6.8.
2. Id., para. 6.19.
3. Id., para. 6.24.
4.13. The Seventy-ninth Report was published in 1979. To evaluate the effectiveness of the approach therein delineated, it would be advantageous to refer to two cases prior to 1979 and, thereafter, to cull out the recommendation and evaluate its effect, to refer to two cases subsequent to 1979.
4.14. The Government of India issued an Ordinance, called The Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, which was promulgated on July 19, 1969. The Ordinance was replaced by an Act, styled as The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969. One R.C. Cooper challenged the constitutional validity of the Ordinance and the Act before a Bench of 11 Judges.1 The hearing lasted for 37 days. The hearing commenced on July 22, 1969, and ended on January 7, 1970. At the relevant time, the Judge strength of the Supreme Court was 12, including the Chief Justice of India.
1. R.C. Cooper v. Union of India, (1970) 1 SCC 248.
4.15. One Kesavananda Bharati challenged the constitutional validity of 24th, 25th and 29th Amendments of the Constitution.1 A Bench of 13 Judges, including the Chief Justice, heard the case. At the relevant time, the Judge strength of the Supreme Court was 14, including the Chief Justice, but two Justices. Mr. Justice C.A. Valdialingam and Mr. Justice I.D. Dua, were appointed as ad hoc Judges. The hearing commenced on October 31, 1972, and ended on March 23, 1973. The hearing lasted for 68 days. The judgment was pronounced on April 24, 1973, and on the next day, Chief Justice Sikri retired.
1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
4.16. Looking to the Judge strength, during the period the aforementioned two cases were heard, no other work save routine admissions could be taken by the court. At any rate, not a single final hearing matter could be attended to. These incontrovertible glaring facts were before the Commission when it opined that curtailment of oral arguments cannot be countenanced.
4.17. Subsequent to the report and after its observations and recommendations were published which, among other things, included exchange of notes of arguments in advance and precise adherence to the points raised in the notes, two more cases came to be argued before the Supreme Court of India. One A.K. Roy, a Marxist member of the Parliament, who was detained under National Security Ordinance of 1980, questioned the constitutional validity of the Ordinance as also the subsequent Act replacing the Ordinance.1
The hearing in the case commenced before a Bench of five Judges on 9th December, 1980 and ended on 30th April, 1981. The Court was closed for summer vacation from the end of first week of May 1981 to third week of July 1981. On the reopening of the court, a 7 Judge Bench commenced hearing in S.P. Gupta v. Union of India, 1981 Suppl SCC 87., questioning the constitutional validity of a circular letter issued by the then Minister of Law and Justice on March 18, 1981.2 Another batch of petitions involving the transfer of Mr. Justice K.B.N. Singh from Patna to Madras was heard along with this petition.
A third petition by one Mr. S.N. Kumar, questioning the failure of the Government to renew his term as Additional Judge, was also heard along with this petition. Hearing of the batch of petitions commenced on 4th August, 1981, and lasted till about the 16th November, 1981, when the Judges composing the Bench had to stop sitting in the Court to prepare their judgments as one of the Judges composing the Bench was about to retire on the 1st Jan., 1982. Four Judges were common to both the Benches.
The net result is that the four Justices who participated in two cases spent the whole year in hearing two cases only and oral arguments in both the cases were unending. This is the aftermath of the view of the Law Commission for not curtailing oral arguments.
1. A.K. Roy v. Union of India, (1982) 1 SCC 271.
2. S.P. Gupta v. Union of India, 1981 Suppl SCC 87.
4.18. Every suggestion for curbing the tendency of long winding oral arguments has in fact produced the exactly opposite effect. Court's failure to curb it acquired high visibility. Consequently, the Law Commission, examining the functioning of the Supreme Court, focussed its attention on the question of oral and written arguments in the higher courts. It issued a questionnaire and submitted a report on April 26, 1984.1 It posed to itself the following three questions:
"Will it facilitate disposal of a greater number of cases if oral arguments are restricted to half an hour on each side?
Will the procedural requirement making it obligatory on counsel to file written briefs, cut down oral arguments?
Should some appeals be disposed of without hearing oral arguments?"
In its recommendation, it was observed that 'the matter may be left to the good sense of the Judge who can, after consulting counsel, fix time beforehand keeping in mind the nature of the case and the issues to be argued'.2 It also declined to recommend introducing 'a compulsory requirement of filing written arguments in all cases at least for the present'. The situation remained as it was prior to the report; and the situation is going out of hand. Therefore, it is time to seriously review the primacy accorded to oral arguments in hearing of cases in Supreme Court and High Courts.
1. LCI, 99th Report on Oral and Written Arguments in the High Courts , (1984).
4.19. There is a second ugly feature of the unending oral arguments. It is universally known that counsel charges daily fees for appearance in the court. The cost of litigation mounts in direct proportion to the length of oral arguments. It is not for a moment suggested that counsel deliberately indulges into long, winding, unending oral arguments for the graph of daily fees to rise. But it cannot be ignored that oral arguments directly contribute to the mounting cost of litigation and the daily fees have reached astronomical figures evidenced from the whispers in the corridors of profession.
4.20. If one combines the fall out of oral arguments, namely, criminal waste of court's time and mounting cost of litigation, howsoever reverential an approach one may have to the oral arguments in Indian system of administration of justice, it is time to curb and control the length of oral arguments. It would be difficult to totally dispense with the same forthwith. A rational approach will permit effective curtailment of oral arguments. It will have the added advantage of accuracy and precision in making submissions.