Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19
PETITIONER:
P. N. ESWARA IYER
Vs.
RESPONDENT:
THE REGISTRAR, SUPREME COURT OF INDIA
DATE OF JUDGMENT01/02/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA
DESAI, D.A.
PATHAK, R.S.
KOSHAL, A.D.
CITATION:
1980 AIR 808 1980 SCR (2) 889
1980 SCC (4) 680
CITATOR INFO :
R 1983 SC1125 (8)
F 1989 SC1298 (9)
RF 1990 SC 538 (4)
ACT:
Supreme Court Rules 1966-O.XL, rules 2 and 3 Scope of-
Disposal of review petitions by circulation without oral
arguments-If violative of Art. 14.
HEADNOTE:
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 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 arguments but the petitioner may supplement
his petition by additional written arguments".
In a petition under Article 32 of the Constitution the
petitioners contended that scuttling of oral presentation
and open hearing is subversive of the basic creed that
public justice shall be rendered from the public seat and
that secrecy and circulation are negation of judicial
justice.
Dismissing the petitions,
^
HELD: per Krishna Iyer, S. Murtaza Fazal Ali and Desai,
JJ (Pathak and Koshal JJ concurring).
Unchecked review has never been the rule. A review
petition must be supported by proper grounds because
otherwise every disappointed litigant may avenge 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 hearing
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 promiscuity in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19
filing review applications crowded the court with unwanted
review petitions and the very solemnity of finality would be
frustrated if such a game were to become popular. [895E-H]
The amended rule is designed to remove the evil of
reckless reviews by the introduction 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 had marred the justice
or legality of the earlier judgment or order, the case would
be posted for oral hearing in court. Now ’certworthiness’ is
shifted from counsel to court. [896H]
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. In a review
petition the same judges who have once heard oral arguments
and are familiar with
890
the case direct a hearing in court if they find good
grounds. It is not as if all oral advocacy is altogether
shut out. Where oral presentation is not that essential 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 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. [898E, 899E,
900C]
The rule on its face affords a wider set of grounds for
review for orders in civil proceedings but limits the
grounds vis a vis criminal proceedings to errors apparent on
the face of the record. Here "record" means any material
which is already on record or may with the permission of the
court be brought on record. [909C]
The substantive power is derived from Article 137 and
is as wide for criminal as for civil proceedings. Even the
difference in phraseology in the rule (r.2) must be read to
encompass the same area and not to engraft the artificial
divergence productive of anomaly. If the expression "record"
is read to mean any material even later brought on record,
with the leave of the court, it will embrace subsequent
events, new light and other grounds which are found in O.
47, r. 1, C.P.C. [909G-H]
Sow Chandra Kanta and Anr. v. Sheikh Habib [1975] 3 SCR
933; Lala Ram v. Supreme Court of India & Ors [1967] 2 SCR
14 referred to.
Per Pathak and Koshal JJ (concurring).
Oral hearing is not an essential requirement if on a
preliminary examination a review application is found to be
devoid of substance. A review application attempts nothing
more than to obtain a reconsideration of the judgment of the
court disposing of the substantive proceeding. The merits of
the controversy having already been examined the re-
examination sought cannot proceed beyond the controversy
already disposed of. [911C-D]
If the judges, on screening the review application,
hold that there is no case whatever for review they will
reject it. If on the other hand they find that a good prima
facie case for review has been made out, they will give an
oral hearing in the presence of the parties. There may also
be cases where even after they are satisfied that no prima
facie case has been made out they consider it desirable to
hear an applicant orally they will afford him an opportunity
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19
of oral hearing and in the event of a prima facie case being
made out they will issue notice to the respondent and oral
hearing will follow, in the presence of the parties. In
short the denial of oral hearing is confined to the
preliminary stage only. It is not possible to hold that at
that preliminary stage also the applicant for review is
entitled to be heard orally. The merit of the oral hearing
lies in the fact that counsel addressing the court are able
to discern what are the aspects of the controversy on which
more light is needed. The court can utilise an oral hearing
in order to express its doubts on a point and seek
clarification thereon from counsel. If there is no doubt
whatever oral hearing becomes a superfluity and at best a
mere formality. [911F-H]
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.
891
It is not correct to say that oral hearing is mandatory
in all classes of cases and at every stage of every case.
[912D]
[The question under consideration being the need
for an oral hearing in relation to review
applications only, there is no need to express any
opinion on whether an oral hearing is an
imperative requirement in the disposal of other
kinds of cases brought before the Court.]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 151, 187,
238, 458, 1038, 1069 and 1277 of 1979.
(Under Article 32 of the Constitution)
R.K. Garg, S. Balakrishnan and M.K.D. Namboodiri for
the Petitioner, in W.P. No. 151/79.
Soli J. Sorabjee Sol. General, E.C. Agarwala, R.N.
Sachthey and Miss A. Subhashini for the Respondent, in W.P.
No. 151/1979.
Petitioner in person-in W.P. No. 1038/79.
P.R. Mridul and H.K. Puri for the Petitioner, in W.P.
No. 187/79.
A.K. Gupta, Vivek Seth, Miss Madhu Moolchandani and
O.P. Rana for the Respondent No. 1, in W.P. 187/79.
Soli J. Sorabjee, Sol. Genl. E.C. Agarwala, R.N.
Sachthey and Miss A. Subhashini for the Respondent No. 2 in
W.P. No. 187/79.
A.K. Ganguli and D.P. Mukherjee for the Petitioner in
W.P. 238/79.
A.K. Ganguli and O.P. Rana for the petitioner in W.P.
No. 458/79.
Soli J. Sorabjee, Sol. General, R.N. Sachthey and Miss
A. Subhashini for the Respondent in W.P. Nos. 458 & 238/79.
G.L. Sanghi and Miss Lily Thomas for the Petitioners in
W.P. Nos. 1069 & 1277/79.
Dr. L.M. Singhvi and Sardar Bahadur Saharya for the
intervener.
The Judgment of V.R. Krishna Iyer, S. Murtaza Fazal Ali
and D.A. Desai, JJ. was delivered by Krishna Iyer, J., R.S.
Pathak, J. gave a separate Opinion on behalf of A.D. Koshal,
J. and himself.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19
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
further arguments in court.
892
Is orality in advocacy-that genius of Indo-Anglian
Justice-an inalienable and ubiquitous presence in the court
process, or does it admit of abbreviated appearance and-more
pertinent to the point here-discretionary eclipse, at least
when it has been preceded by a sufficient oral session ?
Secondly is hearing on Bench in public, in contrast to
considering the matter in conferential circulation, the only
hall-mark of judicial justice, absent which the proceeding
always violates the norms of equality implicit in Art. 14
the limits of "reasonableness" bedrocked in Art. 19, the
procedural fairness rooted in Art. 21 ? And, finally, by
resort to operational secrecy, does rationing or burking of
oral hearing travesty the values of our Justice System ?
These basic problems of the forensic process, of
pervasive impact and seminal import, fall for consideration
in these writ petitions under Art. 32 of the Constitution.
The charge is that the novel expedient of substitution of
oral arguments by written submissions and orders in
circulation dispensing with public sitting, save where-and
that may be rare-the judges in their discretion choose to
hear arguments in court, is a dangerous deviance from the
fundamentals of the Judicial Process. Apprehending maybe,
the futuristic repercussions of a decision on these
questions, even though now restricted to review petitions,
in other fields of ’hearing’ at a later time, the Supreme
Court Bar Association has intervened and argued to impugn
the amended rule through its President, Dr. L. M. Singhvi,
in supplementation of parties’ submissions. We have allowed
even other advocates to make brief contributions, because,
when this Court considers issues of moment and pronounces
thereon, the law so declared binds all: and it is ensouled
in democratic propriety that the voice of reason and
instruction be received from every permissible source in the
nation, if processed according to cursus curiae. This
participative principle lends people’s legitimation to the
judicial process and strengthens the credentials of the rule
of law.
The composite question, which settles the fate of these
petitions, emerges this way. Art. 137 provides for review of
judgments or orders of this Court, subject to the provisions
of any law made by Parliament or any rule made under Art.
145. We are here concerned with 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
893
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19
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 profound. Judge Learned Hand
commended to the judges the great rule of humility contained
in the oft-repeated words of Cromwell:
"I beseech ye in the bowels of Christ, think that
ye may be mistaken" said Oliver Cromwell just before
the battle of Dunbar. These words Judge Hand said he
would like to have written "over the portals of every
church, every court-house and at every cross-road in
the nation."
(emphasis added)
Such is the high-minded tolerance with which this Court re-
examines its own orders to eliminate the happenstance of
injustice unhampered by judicial hubris.
This Court had framed rules for review, right from the
start, but a certain amendment, recently made, has curtailed
oral hearing in court as a matter of course and this measure
of discretionary truncation is attacked as fundamentally
offensive to judicial justice of which this Court is the
highest custodian. "If the salt hath lost his savour, where-
with shall it be salted ?" Surely, this Court’s procedure
should be the paradigm, nothing short of it. So, the
question is whether it is so heathen to make oral hearing
discretionary at the review stage and at the Supreme Court
level that the rule can be condemned as constitutionally
apostate ? Another fatal infirmity was also pointed out as
the arguments proceeded, viz., that a hostile discrimination
had been made by r. 2(1) against litigants who moved for
review in criminal proceedings as against those in the civil
jurisdiction. He will relegate it for consideration to a
later stage.
The relevant original rules ran thus:
2. (1) An application for review shall be by a
petition, and shall be filed within thirty days from
the date of the
894
judgment or order sought to be reviewed. It shall set
out clearly the grounds for review and shall, unless
otherwise ordered by the Court, be accompanied by a
certificate from the Advocate who appeared at the
hearing of the case for the party seeking review, or
where the party appeared in person, from any advocate
of this Court, that it is supported by proper grounds.
The certificate shall be in the form of a reasoned
opinion.
(2) No application for review in a civil
proceeding shall be entertained unless the party
seeking review furnishes to the Registrar of this Court
at the time of filing the petition for review, cash
security to the extent of two thousand rupees for the
costs 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19
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 without any oral arguments, but the
petitioner may supplement his petition by additional
written arguments. The Court may either dismiss the
petition or direct notice to the oppo-
895
site party. An application for review shall as far as
practicable be circulated to the same Judge or Bench of
Judges that delivered the judgment or order sought to
be reviewed.
4. No change.
5. Where an application for review of any judgment
or order has been made and disposed of, no further
application for review shall be entertained in the same
matter.
(newly inserted)
The vital difference, vis a vis the first point, is that now
oral hearing is no longer a right of the petitioner but
facultative with the Bench and the ’circulatory’ system
replaces the public hearing method. A brief study of the
anatomy of the rules will highlight the points urged.
Dissecting the rules and comparing their directives we
find that unchecked review has never been the rule. It must
be supported by proper grounds. Otherwise, every
disappointed litigant may avenge his defeat by a routine
review adventure and thus obstruct the disposal of the
’virgin’ dockets waiting in the long queue for preliminary
screening or careful final hearing. It is perfectly
reasonable to insist that the existence of proper grounds
for review should be responsibly vouched for before the
further time of the court is taken. So, the original rule
required a certificate to that effect by the advocate who
earlier had appeared in the case. Here, counsel functioned
as an officer of the court and, under the mandate of the old
r. 2(1) the Court granted or refused a certificate of
review-worthiness. If it was so certified, then a
preliminary oral hearing followed. After such oral argument,
the court issued notice to the other side or dismissed the
petition. The system was fair enough if the certification
process worked well and real errors and apparent mistakes
marring the original judgment were the restricted grounds
for review. But as it turned out, laxity in certification
and promiscuity in filing review applications crowded the
court with ’unwanted review babies’. The docket crisis which
quaked the calendar deepened, to the detriment of litigative
justice to the deserving who awaited their turn for hearing.
Even otherwise, frivolous motions for review would ignite
the ’gambling’ element in litigation 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19
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
896
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 different counsel, of old and over-
ruled arguments, a second trip over ineffectually
covered ground or minor mistakes of inconsequential
import are obviously insufficient. The very strict need
for compliance with these factors is the rationale
behind the insistence of counsel’s certificate which
should not be a routine affair or a habitual step. It
is neither fairness to the court which decided nor
awareness of the precious public time lost what with a
huge backlog of dockets waiting in the queue for
disposal, for counsel to issue easy certificates for
entertainment of review and fight over again the same
battle which has been fought and lost. The Bench and
the Bar, we are sure, are jointly concerned in the
conservation of judicial time for maximum use. We
regret to say that this case is typical of the
unfortunate but frequent phenomenon of repeat
performance with the review label as passport. Nothing
which we did not hear them has been heard now except a
couple of rulings on points earlier put forward. Maybe,
as counsel now urges and then pressed, our order
refusing special leave was capable of a different
course. The present stage is not a virgin ground but
review of an earlier order which has the normal feature
of finality.
These observations were symptomatic of the ’review syndrome’
which, therefore, demanded remedying. And the amended rule
purposefully incarnated under such auspices to remove the
evil of reckless reviews by the introduction of preliminary
judicial screening in circulation, replacing counsel’s
certification with court’s scanning exercise-an added but
necessitous judicial burden. If the review petition and
written submissions (for which provision was made) convinced
the Court,
897
prima facie, that material error had marred the justice or
legality of the earlier judgment or order the case would be
posted for oral hearing in court. Otherwise, not.
’Certworthiness’-an American judicial shorthand for
’certificate-worthiness’-was, by this amendment, shifted
from counsel to court. This, in pith and substance, is the
rationale of the amended rule.
Counsel, at one stage, asked whether there was back-up
empirical research to warrant the assumptions in the
amendment, whether facts and figures about the number and
nature of wasted ’review’ time of court and a host of other
related aspects were available. No such material is before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19
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
vices identified in counsel’s arguments.
Two major submissions were made to invalidate r. 2(1) .
The scuttling of oral presentation and open hearing is
subversive of the basic creed that public justice shall be
rendered from the public seat, not in secret conclave, that
hearing becomes ’deaf’ if oral impressiveness is inhibited
by the circulation process, more congenial to the seclusion
of bureaucratic cells, fed on files, than to the audio-
visual argumentation heard in the halls of court, which is
the insignia of judicial justice. Secrecy and circulation
are the negation of judicial procedure. A review is a
judicial proceeding and its hearing, to fill the bill, must
not run away from the essentials of processual
jurisprudence, however allergic some judges may be to the
’sound system’ which is the heart of our forensics. With
allotropic modifications, counsel’s arguments stressed this
recurrent theme.
898
We must make it perfectly plain, right at the outset,
that audi alterem partem is a basic value of our judicial
system. Hearing the party affected is too deeply embedded in
the consciousness of our constitutional order. The question
is about the quality, content and character of ’hearing’ in
the special ’review’ situation. Incidentally, we may deal
with oral hearing and its importance in the court process,
the possibilities of its miniaturisation and, in certain
categories its substitution by written submissions.
We agree that public hearing is of paramount
significance. Justice, in the Indian Republic, is public;
and if judges shun the halls of court, read papers at home
confer in private and issue final fiats without listening to
the bar as the representative of the seekers of justice, the
rule of law could well darken into an arcane trick and back
door diktats issued from ’robed’-adjudicators strain the
escutcheon of justice. We also agree that oral advocacy has
a non-fungible importance in the forensic process which the
most brilliant brief cannot match and the most alert judge
cannot go without. The intellectual jallywork of intricate
legal reasoning and impassioned sculpture of delicate
factual emphasis may often be beyond the craftsmanship of
pen and paper. There is no controversy that disposal by
circulation, Secretariat fashion, cannot become a general
judicial technique nor silent notings replace Bench-Bar
dialogues. We must clarify one point. ’Circulation’, in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19
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 Supreme
Court level.
Let us look at the actuality without being scary. The
rule under challenge does not implicate or attract an
original hearing at all. It
899
relates to ’review’ situations. Ex hypothesi, an antecedent
judicial hearing and judicial order exist. Indeed, if a full
oral hearing on the Bench has already taken place the
dangerousness of secret disposals dies out. What is asked
for is a review or second look at the first order. Should
this second consideration be plenary ? Never. The focus must
be limited to obvious, serious errors in the first order.
Indiscriminate second consideration cannot be purchased by
more payment of court fee. We reject the strange plea one of
the advocates put forward that since the petitioner had paid
court-fee for review he had the right to the full panoply of
oral hearing ad libitem covering the whole range.
Review must be restricted if the hard-pressed judicial
process is not to be a wasting disease. There are many ways
of limiting its scope, content and modality. The confinement
to certain special grounds, as in Order 47 Rule 1, C.P.C.,
is one way. The requirement of counsel’s reasoned
certificate of fitness (Certworthiness) for review is
another. Judicial screening to discover the presence, prima
facie, of good grounds to hear counsel in oral submission is
a third. The first is good and continues. The second was
tried and found ineffective and the third is being tried.
Legislative policy is experimental as life itself is a
trial- and-error adventure. What is shocking about this
third alternative ? Judges scrutinise-the same judges who
have once heard oral arguments and are familiar with the
case-and, if they do not play truant, direct a hearing in
court if they find good grounds. If there is ground, oral
hearing follows. It is not as if all oral advocacy is
altogether shut out. Only if preliminary judicial scrutiny
is not able to discern any reason to review is oral exercise
inhibited. The court process is not a circus or opera where
the audience can clamour for encore. When the system is
under the severe stress of escalating case-load, management
of Justice Business justifies forbiddance of frivolous
reviews by scrutiny in limine on the written brief.
Justicing too is in need of engineering.
In many jurisdictions oral submissions and public
hearings are disallowed in like circumstances. In England
and America where orality in advocacy has been apotheosised,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19
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
900
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
crucial in the guarantee of the application of an
instructed, intelligent, impartial and open mind to the
points presented. A blank judge wearied by oral aggression
is prone to slumber while an alert mind probing the
’papered’ argument may land on vital aspects. To swear by
orality or to swear at manuscript advocacy is as wrong as
judicial allergy to arguments in court. Oftentimes, it is
the judge who will ask for oral argument as it aids him
much. To be left helpless among ponderous paper books
without the oral highlights of counsel, is counter
productive. Extremism fails in law and life.
We agree that the normal rule of the judicial process
is oral hearing and its elimination an unusual exception. We
are now on the vires of a rule relating to review in the
highest court. A full-dress hearing, to the abundant
accompaniment of public presence and oral submission, is
over. It is a second probe. Here written arguments are
given. The entire papers are with the judges. The judges
themselves are the same persons who have heard oral
presentation earlier. Moreover, it is a plurality of judges,
not only one. Above all, if prima facie grounds are made out
a further oral hearing is directed. Granting basic bona
fides in the judges of the highest court it is impossible to
argue that partial foreclosure of oral arguments in court is
either unfair or unreasonable or so vicious an invasion of
natural justice as to be ostracised from our constitutional
jurisprudence. It must be remembered that review is not a
second dose of the same arguments once considered and
rejected. The rejection might have been wrong but that
cannot be helped. Dissenting minorities regard the dominant
majorities wrong in their judgments but there is no helping
it.
It may not be inept to refer to the critical
distinction, even where review of fundamental rights
proceeding is sought, between an original or virgin hearing
and a second look at or review of the order already passed
after a full hearing. In Lala Ram’s case this Court accented
on the essential distinction between an original application
for the
901
enforcement of fundamental rights and an application to
review the order made therein. It was there observed:
The main purpose of a review petition is not to
enforce a fundamental right, but to reopen an order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19
vitiated by an error on the face of the record or for
such other reasons. But 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 of the same judges who first heard
the case only to last for a few minutes or a little longer,
then to disperse and re-arrange regular Benches, especially
when most of the review petitions are repeat performances in
futility, is a judicial circus the court can ill afford. The
rule is rational, the injury is marginal.
The magic of the spoken word, the power of the Socratic
process and the instant clarity of the bar-bench dialogue
are too precious to be parted with although a bad advocate
can successfully spoil a good case if the judges rely only
on oral arguments for weaving their decision. The written
brief, before careful judges, can be a surer process of
deeper communication than the ’vanishing cream’ of speaking
submissions. And a new skill-preparation of an effective
brief, truly brief, highly telling and tersely instructive-
is an art of the pen worth the acquisition especially when,
in practice, there are many gifted lawyers who go with
Goldsmith who ’wrote like an angel and talked like poor
Paul’. India is neither England nor America and our forensic
technology must be fashioned by our needs and resources.
902
Indeed, in this Court, counsel have begun to rely heavily,
with good reason, on written submissions and oral
’sweeteners’. The Bench can never go it alone. The bar must
collaborate and catalyse.
Nor is there any attempt, in this circulation rule, to
run away from the open. Secret sittings, exclusion of the
public and cabals in conclave are bete noire for the
judicial process. A review implies an earlier full hearing
and, if warranted, a future further hearing. Every measure
has to be viewed in perspective, not out of focus. The
consternation that the court, by hidden procedures, may undo
the ’open’ heritage is a chimerical fear or a disingenuous
dread.
In other jurisdictions which our jurists hold in
anglophilic esteem, this practice is current coin. The
balancing of oral advocacy and written presentation is as
much a matter of principle as of pragmatism. The compulsions
of realities, without compromise on basics, offer the sound
solution in a given situation. There are no absolutes in a
universe of relativity. The pressure of the case-load on the
judges’ limited time, the serious responsibility to bestow
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19
the best thought on the great issues of the country
projected on the court’s agenda, the deep 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 will perfect the process it should not be
dispensed with. Even so, where issues of national moment
which the Supreme Court alone can adequately tackle are not
involved, and if a considerable oral hearing and considered
order have already been rendered, a review petition may not
be so demanding upon the judge’s ’Bench’ attention,
especially if, on the face of it, there is nothing new,
nothing grave at stake. Even here, if there is some case
calling for examination or suggestive
903
of an earlier error, the court may well post the case for an
oral hearing. (Disposal by circulation is a calculated risk
where no problem or peril is visible.)
Oral argument has been restricted at several stages in
the judicial process in many countries. In the United States
the problem of a large number of frivolous petitions for re-
hearing (in our diction, review) filed by counsel provoked
the court into framing restrictive rules of hearing. One of
the rules prescribes:
A petition for rehearing is not subject to oral
argument, and will not be granted, unless a justice who
concurred in the judgment or decision desires it, and a
majority of the court so determines.
In England, leave to appeal to the House of Lords is a
pattern of proceedings where obligatory oral hearing does
not always exist. The recent practice direction may be
usefully referred to here:
As from October 1, 1976 Petitions for leave to
appeal to the House of Lords will be referred to an
Appeal Committee consisting of three Lords of Appeal,
who will consider whether the petition appears to be
competent to be received by the House and, if so,
whether it should be referred for an oral hearing.
Where a petition is not considered fit for an oral
hearing, the Clerk of the Parliaments will notify the
parties that the petition is dismissed.
Justice John M. Harlan of the U.S. Supreme Court wrote,
while explaining the need for controlling court work within
manageable proportions,
...... it would be short sighted and unwise not to
recognise that preserving the certiorari system in good
health, and in proper balance with the other work of
the Court, are matters that will increasingly demand
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19
thoughtful and imaginative attention. As I have tried
to show, the essence of the problem as things stand
today is to guard against wasteful encroachments upon
the Court’s time by preventing an increase in, if not
reducing, the volume of improvident applications for
certiorari.
(emphasis added)
904
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:
Crowded dockets have forced appellate courts to
curtail the time allotted for oral argument, with the
result that some members of the profession wonder
whether courts care for oral argument.. The practice of
today shows that advocacy can be effective even though
the period of delivery is short. Some attorneys can be
effective even though the period of delivery is short.
Some attorneys can do wonders in thirty minutes when
nothing more is available.
The English practice, of course, is different. Delmar Karlan
has correctly set out the situation:
In the United States, oral arguments are secondary
in importance to the briefs, and are rigidly limited in
duration. In the United States Supreme Court, one hour
is allowed to each side, but in many appellate courts,
less time that is permitted, frequently no more than
fifteen minutes Or a half-hour for each side. Reading
by counsel is frowned upon. The judges do not wish to
hear what they can read for themselves. They expect to
get all the information they need
905
about the judgment below, the evidence and the
authorities 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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19
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
rigidly controlled; the legend is that Chief Justice
Hughes once cut off an attorney in the middle of the
word "if". If there are not too many 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 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
906
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 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 spoken than the
written word". He hits the nail on the head when he states:
For my part, there is no substitute, 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.
We wholly endorse the conclusion of that experienced Judge
of the United States Supreme Court when he concludes his
thesis on oral 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19
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 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
907
add that they feel a sense of genuine regret whenever
the clerk announces that a case is being submitted on
briefs alone. These expressions reflect the fact the
task of judgment is infinitely harder when counsel is
not present to be questioned regarding his exact
position or the limits of a principle he has argued in
the brief.
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 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 discouragement of written argument make
possible extensively protracted bearings in open court.
Those responsible 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.
908
The judicial process is in crisis not because there is a
flood of cases flowing into the courts. In a developing
country with an awakened people and democratic rights, it is
inevitable that the litigative Ganga 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19
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
skills 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 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 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
909
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 because he disclosed a certain symptom very
late 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 sustain 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 sentenced 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19
sentence of 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 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 area
in civil and criminal proceedings when review power is
invoked from the same source.
910
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 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
functional 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 argumentum 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 power in regard to limiting 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19
the shape of time-limitation or substitution by written
submission even in categories other than review proceedings.
All that we mean to indicate 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 myriad
factors and future developments. Judges of the Supreme Court
must be trusted in this regard and the Bar will ordinarily
be associated when decisions affecting processual justice
are taken. We thus see no disparity given flexibility in
decoding the meaning of meanings.
We see no force in the challenges and do hope that the
Bar will make its contribution to making experiments in
modernization and humanization of the Justice System and
court culture.
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 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 screening of the
review application that there is no case what ever 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 is 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 opportunity 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 issues notice to the
respondent and an oral hearing will follow in the presence
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19
of the parties. It is apparent that the denial of oral
argument is confined to the preliminary stage
912
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 for review is entitled to be heard
orally. The merit of an oral hearing lies in this that
counsel addressing the court are able to discern what are
the aspects of the controversy 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 counsel. But if there is on doubt
whatever that the review application is totally without
substance, an oral hearing 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 justice 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 accede.
The writ petition is dismissed, but without any order
as to costs.
P.B.R. Petitions dismissed.
913