P. N. ESWARA IYER v. THE REGISTRAR, SUPREME COURT OF INDIA

Citation: [1980] 2 S.C.R. 889

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, S. MURTAZA FAZAL ALI, D.A. DESAI, R.S. PATHAK, A.D. KOSHAL

Case summary

Tersely expressed, this bunch of cases challenges the vires of a recent amendment made by the Supreme Court under Art. After such oral argument the court issued notice to the other side or_ dismissed the petition.

Judgment text

11119 P. N. ESWARA IYER. A v. TilE REGISTRAR, SUPREME COURT OF INDIA February 1, 1980 [V. R. KRISHNA IYER, S.. MURTAZA FAZAL ALI, D. A. DESAI, B R. S. PATHAK AND A. D. KOSHAL, JJ. ] Supreme Court Rules 1966-0. XL, rules 2 and 3 Scope of-Disposal of review 'etitions by circulation withDllt oral arguments-If violative of Art. 14. r ,f 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 c 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 a-rguments but the petitioner may supplement his petition by additional written arguments". In a petition under Article 32 of the Constitution the petitioners contended D t:h.

at scuttling of oral presentation Qnd open hearing is subversive of the basic creed that public justice shall be rendered from the public seat Ol1d that secrecy 8lld circulation are negation of judicial justice. Dismissing the petitions, HELD : per Krishna Iyer, S. Murtaza Fazal Ali and Desai, JJ (Pathak and Kosltal JJ concurring). E Unchecked review has never been the rule·. A review petition must be supported by proper grounds because otherwise every disappointed litigant' may ave. ge 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 hear.. F ing 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 pro•iscuity in filing review applications crowded the court with unwanted review petitions and the very solemnity of finality would bo fruslralcd if such a garlle were to become popular. [895E-H] The amended rule is designed to remove the evil of reckless reviews by the G futroduction of preliminary judicial screening in circulation replacing counsel's certification. If the review petition and written submissions convinced the court prima facie that material error bad marred the justice or legality of the oarlier. judgment or order,. the case would be posted for oral hearing in court. Now 'certworthiness' is shifted from coU11Bel to court. [896H] Circulation in the judicial context merely means not in court through oral argu- B ments but by· discussion at judicial conference. Judges, even under the an1ended rule, must meet, collectively cere9rate and reach conclusions.

In a review petition the same judges \'i'hO have once heard oral arguments and are familiar with the case direct a hearing in court if they find good grounds. It is not as if all oml advocacy is altogether shut out. Where oral presentation is not that essen· tial 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 withont 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 jl ) 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 dgidly controlled; the legend is that Chief Justice Hughes once cut off an attorney in the middle of the word "it". If there are not too niany interruptions, the hour is sufficient; lawyers must learn to be brief. We assume that judges will be up to the additional strain.

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 some times assumed, that oral arguments are for the first time and finally cut out. Even now, oral hearing J 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 II (I) John P. Krank, Marble Reh. ce-The Supreme Covn in Americrn Life 1958 Edn p, 92. the attack on the vires of the rule. Nothing arbitrary, nothing arcane, i, 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 spoke1~ than the written word". He hits the nail on the head when he states : For my part, there is no substi1ute, 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. (I) We wholly endorse the conclusion of that experienced Judge of the United States Supreme Court when he concludes his thesis on oral 2 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 proforma exercise which, because of tradition or because of the insistence of his client, a lawyer has to go f 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 (l) Cornell Law Qly. Vol. 41 1955-56, p. 7. (2) Ibid p, 11. (3) Vol. 62, 1948, p. 59, ESWARA IYER v. THE REGISTRAR (Krishna Iyer, J. ) 907 add that they feel a sense of genuine regret whenever the A clerk announces that a case is being submitted on briefs alone. These expressions reflect the fact the task of jucJg..

ment is infinitely harder when counsel is not present to be questioned regarding his exact position or the limits of a principle he has an;. ued in the brie!. We concm 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 I. he Supreme 'Court as "oral discussions··. The then Professor Frankfurter stated in 1933, "The atmosphere of the Court is uncongenial to oratory an·d the res.. trictions 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 pawer 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 hi! ;i:t spots. The supreme success of oral argument and the grave risk of jettisoning it from the repert-0ire of persuasive arts in the judicial process consists in George Rossman·s observation :(2) 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 discourageinent of written argument make possible extensively protracted bearings in open court. Those res- I ponsible 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. (1) Supreme Court Practice (supra) p. 316. (2) American Bar Association Journal (supra) p. 676. [1980] 2 S. C. R. The judicial process is in crisis not ·because there is a flood of (,"ases flowing into the courts. In a developing country with an awakened people and democratic rights, it is inevitable that the Jitigative Ganga i' may swell in its stream, but as justice Warren Burger wrote: 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 ski!

Js 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 I) 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 expendable. 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 espe. cially footnote 13) endorses a similar procedure. Sri Mfidul 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 t the rule of practice that a paint not raised in the writ petition may not ·G be allowed to be urged, the ju4ges must invalidate their own handiwork. Surely, Justice and Truth are never afraid of exposure nor bothered about prestige. Certainly, drafting legi~lation is not an easy art and judges are not artists beyond their orbit. Even otherwise, I Homer nods. Therefore, if we find our rules void we must declare I 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 ESWARA IYER v. THE REGISTRAR (Krishna Iyer, J. ) 909 no such disability exists. A technical objection shonld not throw out a suitor from the plea for justice. After all, the courts belong to the people, as Jerome Frank once said. And Etigants 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 lat. ;i 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 sustam injury. We have permitted the contention and proceed to consider it.

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 sen- • tenced 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 -0f 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 necessitous. 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 I \ 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 n area in civil and criminal proceedings when review power is invoked from the same source. 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 m;d the import of Art. 141. ' ) As we conclude, we wish to set the sights aright vis-a-vis oral hear- -,,l_ ings in judicial proceedings. To put superstitious faith in oral submis- ' sions 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 func- . ,tional 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 argun1entun1 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 powa in regard to limitin~ 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 substi1ution by written submission even in categories other than review proceedings. Ali that we mean to indi- 1 cate 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 n.

yriad factors and future developments. Judges of the Supreme Court must be trusted in thi~ regard and the Bar will ordinarily be associated when decisions affecting processual justice are taken. We thus ' see nc disparity given flexibility in decoding the meaning of meanings. I ,\! it' We see no. for? e in the ch~llenges an. d do h? pe that th~ B~r will '::> make its contnbutwn to makmg expenments m modermzahon ~nd humanization of the Justice System and court culture. ESWARA 'YER v. THE REGISTRAR (Pathak, J. ) 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, 1966.

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 dispo. ;al 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 attempt~ 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 '. necessary. 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 isl 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 opporiunity 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 isisue 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 4-138SCI/80 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 fQr review is entitled to be heard orally. The merit of an oral hearing lies in this that counsel address- J1 • ing the court are able to discern what are the aspects of the contr<>versy 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 cowu;el. But if there is on doubt whatever that the review appication 1' totally without substance, an oral hearin! becomes a superfluity and, at best, a mere formality.

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 justiee 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 acc'ede. The writ petition is dismissed, but without any order as to costs. P. B. R. Petitions dismissed.