TMI Blog1980 (2) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... hope that the Bar will make its contribution to making experiments in modernization and humanization of the Justice System and court culture. - Writ Petition Nos. 151, 187, 238, 458, 1038, 1069 and 1277 of 1979 - - - Dated:- 1-2-1980 - KRISHNAIYER, V.R., FAZALALI, SYED MURTA-ZA, DESAI, D.A., PATHAK, R.S. AND KOSHAL, A.D., JJ. For the Petitioner : R.K. Garg, S. Balakrishnan and M.K.D. Namboodiri, P.R. Mridul and H.K. Puri, A.K. Ganguli and D.P. Mukherjee, O.P. Rana, G.L. Sanghi and Miss Lily Thomas For the Respondent : Soli J. Sorabjee Sol. General, E.C. Agarwala, R.N. Sachthey and Miss A. Subhashini, A.K. Gupta, Vivek Seth, Miss Madhu Moolchandani and O.P. Rana, Soli J. Sorabjee, Sol. Genl. E.C. Agarwala, R.N. Sachthey and Miss A. Subhashini , Soli J. Sorabjee, Sol. General, R.N. Sachthey and Miss A. Subhashini JUDGMENT 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 imperio. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the opposite party. 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 review. (2) No change. 3. [Unless otherwise ordered by the Court] an application for review shall be disposed of by circulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 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 vic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch-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 Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 in vogue. 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 right. 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 despatch of review petitions are obvious. To organize review Benches o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot reducing, the volume of improvident applications for certiorari. (emphasis added) 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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 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 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 ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rossman's observation: The oral argument can portray the case as a human experience which engulfed the parties but which they could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 979 especially footnote 13) endorses a similar procedure. 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulty in equating the 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 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 secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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