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Report No. 99

2.7. Shri Seervai's reply.-

Much more elaborate is the reply of Shri H.M Seervai. Limitations of space do not permit us to quote it in full. But the most important points made by him are, we believe, reflected in the following portions, which we have extracted1 verbatim from his reply. (For convenience, we have put the relevant passages in lettered paragraphs):-

(a) In the Court, for a large number of years, oral arguments took place. Judges made their own notes and written arguments were not permitted. No doubt, the filing of a statement of the case for the Appellant and the Respondent was the rule in those days, and it apprised the Court of the case of the parties. This procedure secured close attention on the part of Judges for, in making their notes, they had to record the submission and their own reaction to it. In last few years, a practice has grown up of dispensing with the statement of the case in most cases, accompanied by a suggestion that notes of argument on either side may be put in.

The statement of the case was abrogated because it was said that counsel did not know how to draw such statement, and that with rare exceptions, the statements of the case were useless. I find it difficult to believe that counsel who are unable to draw a statement of the case-which consists of a concise statement of facts, the grounds for the decision in the court or courts below, and submissions of law or fact to show why the decision is wrong-would be capable of submitting a written argument which involves greater skill and labour than the statement of the case.

(b) The written note is supposed to cover the whole case. A note of argument for the Appellant is in one sense easy to prepare for, he has to open and if he so minded, can set out his case in full. But when the case is argued in court, even for limited periods of time, the argument gets modified, qualified or enlarged, as a result of the questions from the Bench or in some cases, objections from the other side. The preparation of a written argument for the Respondent puts Counsel to intolerable strain, because they have to argue in Court for four and a half hours as soon as Counsel for the Appellant sits down and all the while they must prepare and be ready with the written notes stating their argument fully.

(c) Between a written argument and an oral argument, however brief, there is a vast difference. Not only does this procedure lead to delay both in the conduct of the case because few judges have the time to read notes as they are handed in, and also to delay in the delivery of the judgment, but it also, involves grave injustice to the appellant. Secondly, it seems to me that it is an outrage to stop responsible Counsel from presenting a relevant argument on the ground of lack of time. This power is, it is said, intended to prevent repetition. Nothing is easier than to tell Counsel that his point has been noted and need not be repeated.

(d) It is said that in the Supreme Court of U.S.A., there is a time limit of half an hour for oral argument on each side. If the system can work in the United States, why can it not work in, India? The answer is two-fold. The mode of working of the U.S. Supreme Court is entirely different from the mode of work of our Supreme Court. The Judges sit for only 4 days in a week for a fortnight for hearing arguments. For the next fortnight they do not sit in Court at all. They are provided with research assistants; judicial conferences are held where all the judges are present where applications for certiorari and the judgment to be delivered are discussed. Written briefs are filed by big law corporations with immense research facilities, including computerised service, available repetition.

(e) In my opinion, to secure speedy disposal, reasonably early judgments and for improving the quality of judgments, the earlier practice should be restored. Written arguments should not be allowed, the judges should make their own notes, and firmly not, courteously prevent repetition.

1. Law Commission Collection No. 21/29 to 21/33, Law Commission File, S. No. 146 (Shri Seervai).

Oral and Written Arguments in the Higher Courts Back

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