r , f

P. N. ESW ARA IYER. 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.

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 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).

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 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 arguments 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

' j

A 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<lper book the judges find that there is no merit or statable case, n there is no special virtue in sanctifying the dismissal by an oral ritual.

[898E, 899E, 900CJ

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. fiere "record" means any material which is already on record or n1ay with the permission of the court be brought on record.

[909C]

The substanti\'e power is defived front l\.rticle. J 37 and is as \vide for crimi~ nal as for civil proceedings. Even the difference in phraseology in the rule (r. 2) must be reJd to encompass the same area and uot to engraft the artifi~ cial divergence prolluctive of anomaly.

If the expression record" is read to moon any material cvt!n later brought on record, \Vith the leave of the court. it will embrace subsequent events, ne\V light and other grounds which are found in 0. 47, r. I, C.P.C. [909G-H]

Sow Chandra Kanta and Anr. v. Sheik 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 requirment if on a preliminary examination a review application is found to be devoid of suCstance. .i\. 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 :'ought c~.nnot 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 F good pririza jacie 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 prinia facie case has been made out they consider it desirable to boor an applicant orally they will afford him an opportunity of oral hearing and in the event of a prima jacie case being made out they will issue notice to the respondent and oral hearing , Nill 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 hear ing lies in the fact that Counsel addressing the court are able to discern what are the aspects of the controversy on which n1ore light is needed. The court can utilise an oral hearing in order to express its doubts on a point end seek clarification thereon from counsel. If there is no doubt whatever oral heariBg becomes a superfiuity and at best a mere formality. [911F-Hl ~Ir' A written submission is capable of careful drafting and explicit expression.

/ \md 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.

f •

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 hefiling 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.]

ORIGINAL JuR1sDICTJON : 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. Nambpodiri for the Petitioner, in W.P. No. 151/79.

Soll 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 /

~ A. K. Gupta, Vivek Seth, Miss Madhu Moolchandani and 0. P.

R11na for the Respondent No. Lin W.P. 187/79.

Soli !. 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.

E- 238/79.

A. K. Ganguli and 0. P. Rana for the petitioner in W.P. No. 458/ 79.

Soli J. Sorabjee, Sol. General, R. N. Sachthey and Miss A. Sub- . hashini for the Respondent in W.P. Nos. 458 & 238/79.

G. L. Sang hi and Miss Lily Thomas for the Petitioners in \V.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 G a separate OpiniCJ:ll 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 petitions whereby the judges will decide in circulation, without the aid of oral submissions, whetl1e~ R there is merit in the motion and, in their discretion, choose to hear , farther arguments in court . .+

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--<liscretionary 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 proceduraJ. fairness rooted in Art. 21 ? And, finally, by resort to operational , secrecy, does rationing or barking of oral hearing travesty the values of our Justice S:ystem?

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 expedi!mt

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 teview 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 tQ 'regulating generally the practice and procedure of the Court'. In particular, Art. 145(1) (bJ 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

cand become non est if violative of the proscriptions and prescrip- A ' tions of the Constitution vide Premchand Garg's case(I). Even the Supt"eme 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 ob- B

vial~ to the extent pragmatically possible, without being blinded b:11 any claim to impervious infallibility in the first judgment.! Even judges, more than other mortals, to correct injustice if the ei:ror is discovered within working limits. Thus, the root principle of judicial review is profoond.

Judge Learned Hand co=ended to the judges the great rule of humility co_ntained in the oft-repeated words of Cromwell : C

"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 courthouse and at every cross-road in the nation."(') D

(emphasis added)

Such is the high-minded tolerance with which this Court re-examine& its own orders to eliminate the happenstance of in justice unhampered by judicial hubris.

This Court had framed rules for review, right from the start, but a E certain amendment, recently made, has curtailed oral hearing in court as a matter of course and thi_s measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian. ''lf the salt hath lost hiS savour, wherewith 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 F 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 faJal 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 G , jt 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

(I) Prem Chand Garg v. Excise Commissioner U. P., Allahabad (1963] Suppl.

(I) 885. .

(2) The Spirit of Liberty by Learned Hand, p. >)<iv.

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 th!l case for the party seeking review, or where the party appeareu 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 the ground of mistake of law or fact, the Court may, if it thinks fit in the interLsts 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 : I

: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. (1)

(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-

(1) Sub. by GSR 387 dated 13-3-1978 and came into force on 18-3-78.

(2) Added by GSR 1024 dated 9-8-78 and came into force on 19-8-78.

site party. An application for review shall as far as prac- A ticable 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 appli- B cation 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 rigb• 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 bis 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 bad 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 faigative justice to the deserving who awaited their turn for hearing. Even otherwise, frivolous motions for review would ignite the

'gallrbling' element in litigation with the finality of judgments even by the highest court, being left in suspense.

If, every vanquished party bas a fling at 'review' lncky 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.

Tue 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

3-138SCI/80

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 : (2 )

A review of a judgment is a serious step and reluctant resort to it is proper only where a glari:lg omission or patent mistake or like grave error has crept in earlier by judicial fallib:lity.

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 dispooal, for counsel to issue easy certificates for entert:llnment of review and fight over again the same battle which has been fought and Jost. 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 pasport. 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 b_ut 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 purposefnlly 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,

(!) [1975] 3 S.C.R. 933.

(2) Ibid pp, 933-934.

ESWARA !YER v. THE REGISTRAR (Krishna Iyer, J.) 897

prima fade, that material error had marred the justice or legality A of the earlier judgment or order the case would be posted for oral hearing in court. Otherwise, not. 'Certworthiness'--an American judicial shorthand for 'certi:ficate-worthiuess'-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 ; issumptions in the amendment, whether facts and figures about the number and nature of wasted 'review' time

B .

of court and a host of other related aspects were available. 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 oI 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 pa.ramountcv 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 snbversive of the basic creed that public justice shall be rendered from the pnblic seat, not in secret conclave, that hearing becomes 'deaf' if oral impressivec

ness is inhibited by the circulation process, more congenial to the G 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 circnlation 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' H which is the heart of our forensics.

With allotropic modifications, counsel's arguments stressed this recurrent theme.

 A 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 aiffected 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 pro- B cess, 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 teyond 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 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

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 courtfee.

We reject the strange plea one of the advocates put forward that since the petitioner h, td 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 rea$oned certificate of fitness (Certworthiness) for review is another._ Judicial screening to discover the presence, prima fade, 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 trialand-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,

dirct a hearing in court if they find good grounds. If there is ground, oral bearing 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, 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 bearing, bs 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

A f not be a public show. When judges meet in conference to discuss it

c-c 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 poiint 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 .

B 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, intelli-. '.l gent, impartial and open mind to the points presented.

A blank judge C wearied by oral aggression is prone to slumber while an alert mind 1 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 counterproductive.

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. TI1e 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 (ides 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 econd look at or review of the order already passed after a full hearing. In Lala Rmn's case(') this Court accented H on the essential distinction between an original application for the

enforcement of fundamental rights and an application to review the A order made therein. It was there observed : (1)

The main purpose of a review petition is not to enforce a fundamental right, but to reopen an order 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 01 er is also an application to enforce the fu:idamental 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 tor bearing 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 end th~ instant clarity of the bar-bench dialogue are too precious to be parted with although a bad advocate can successfully spoil a good case i[ 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.

(I) Ibid at 17.

A Indeed, in this Court, counsel have begun to rely heavily, with good reason, on written submissions aud 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 proces:.

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.

C St In other jurisdictions which our jurists hold in ang!ophilic 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 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 mange ment 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 prese1tation.

This is the final court of provisional infallibility, the summit court, which not merely disposes of cases beyond challenge, but is also the G 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 bearing 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

I r :-

of an ea1lkr 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. (') C

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 Com- D mittee consisting of three Lords of Appeal, who will conside: whether the petition appears to be competent to be received by the House and, if so, whether it should be r.- ferred 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 ex• plaining the need for controlling court work within manageable proportions, (8) ..... .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 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)

(1) Supreme Court Practice by Stern & Gressman 1950 Ec!n. p, 321.

(2) (1979) 1 W.L.R. 497.

(3) Hart and Wechsler, the Fedcrn\ Courts and The Federal System, 2nd Edn. pp. 1605-1607.

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 i6 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 tci ask the Chief Justice what time remains.

When counsel has only five minntes left, a whi<te 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.

D The rationale of redncing 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

(I) Supreme Court Practice (supra) p. 303.

(2) American Bar Association Journal Jan. 1959, Vol. 45, No .. 1 p, 676.

(3) 1962 Vol. 78 L. Q. R. 371 at 379-380.

' >

ESWARA !YER v. THE REGISTRAR (Krishna Iyer, J.) • 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.

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 bet- F ween 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 G 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 II

(I) John P. Krank, Marble Reh.ce-The Supreme Covn in Americrn Life 1958 Edn p, 92.

A 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, B 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 C 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 arguments : (2 )

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 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,

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 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 and 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 Rossmans 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 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.

(1) Supreme Court Practice (supra) p. 316.

(2) American Bar Association Journal (supra) p. 676.

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 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 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 the rule of practice that a paint not raised in the writ petition may not 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 legilation 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

I \

no such disability exists.

A technical objection shonld not throw out A 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 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 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. 13 7 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.

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 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 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 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 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.

H ,\!it' We see no. for?e in the chllenges an.d do h?pe that th~ Br will

'::> make its contnbutwn to makmg expenments m modermzahon nd

humanization of the Justice System and court culture.

' ) ' -,, l_

' I

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 addressing 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.

f

P. N. ESW ARA IYER

TilE REGISTRAR, SUPREME COURT OF INDIA

February 1, 1980

S .. MURTAZA FAZAL ALI

D. A. DESAI

R. S. PATHAK

A. D. KOSHAL, JJ.

Supreme Court Rules 1966

Art. 14

Supreme Court Rules

Article 32

C.P.C

1975] 3 SCR 933

[1967] 2 SCR 14

Per Pathak

Koshal

Article 32

S. Balakrishnan

M. K. D. Nambpodiri

Soll J. Sorabjee

E. C. Agarwala

R. N. Sachthey

A. Subhashini

P. R. Mridul

H. K. Puri

A. K. Gupta

Vivek Seth

Madhu Moolchandani

Soli !. Sorabjee

A. K. Ganguli

P. Mukherjee

0. P. Rana

Soli J. Sorabjee

A. Sub- . hashini

G. L. Sang

Lily Thomas

L. M. Singhvi

Sardar Bahadur Saharya

V. R. Krishna Iyer

D. A. Desai

R. S. Pathak

A. D. Koshal

KRISHNA IYER

Supreme Court

Art. 145

Art. 14

Art. 19

Art. 21

Art. 32

Supreme Court Bar Association

L. M. Singhvi

Art. 137

Parliament

Art. 145

Art. 145

Art. 145(1)

Premchand Garg

Cromwell

Oliver Cromwell

Dunbar

[1975] 3 S.C.R. 933

Order 47 Rule 1

C.P.C

England

America

Garg

Lala Rmn

Goldsmith

India

United States

October 1, 1976

John M. Harlan

U.S. Supreme Court

Stern

Gressman

Hart

Wechsler

U. S. Supreme Court

George Rossman

Supreme Court of Oregon

Delmar Karlan

United States Supreme Court

Washington D.C.

John Frank

Hughes

John P. Krank

Harlan

Frederick Bernays Wiener

Harvard Law Review

Frankfurter

George Rossmans

Brian Mckenna

American Bar Association Journal

Warren Burger

Roscoe Pound

Mfidul

Art. 14

Homer

Jerome Frank

Art. 137

Art. 13

Order 40 Rule 2

Order 47 Rule 1

Art. 141

ESWARA 'YER

PATHAK

V. R. Krishna Iyer


JOLLY GEORGE VERGHESE & ANR. v.

THE BANK OF COCHIN

February 4, 1980

[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.]

Code of Civil Procedure-Section 51, Ordet 21, rule 37-Scope of-' Debtor, if could be imprisoned for failure to pay his deb,/lmprisonment M•hen could be ordered.

The appellants were the judgment.debtors while the respondent-bank Wes the decreeholder. In eixecution of the decree a warrant for arrest and detention in civil prison was issued to the appellants under section 51 and order 21, rule 37 of the Code of Civil Procedure. On an earlier occa.sion there had been a simi Jar warrant for arrest in execution of the same decree. The decree-holders also proceeded against the properties of the judgment-debtors and in consequence all their immovable properties had been attached for the purpose of sale in dis charge of the decree-debts. A receiver was appointed by the cxecntion court to manage the properties under attachment. Even so, the court had issued a warrant for the arrest of the judgment-debtors became on an earlier occasion a similar warrant bad already been issued without any in.estigation as regards. the cnrrcnt ability of the judgment-debtors to clear off the debts or their mala-fide refusal, if any, to discharge the debts.

On the question whether under such circumstances personal freedom of the judgment-debtors can be held to ransom until repayment of the debt.

Allowing the appeal,

HELD : 1. The words in section 51 which hurt are "or has had since the '} ,, date of the decree the means to pay the amount of the decree." Superficially ""'-- read this implies that if at any time after the passing of en old decree the judg

ment-debtor had come by some resources and had not discharged the decree he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position, apart from being inhuman i.. going by the stendards of Article 11 of the International Covenant on Civil and ]J Political Rights and Article 21.

A simple default to discharge is not enough.

There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively current moons to -\ pay the decree or a substantial part of it. The provision emphasises the need i to establish not mere omission to pay but an attitude of refusal on demand

verging on dishonest disowning of the obligation under the decree. Considera tions of the debtor's other pressing needs Ond straitened circumstances will play

~ prominently. [922E-GJ

2. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding. the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and ',- Article Sl(c) of the Constitution obligates the State to "foster respect for

international law am.d treaty obligations in the dealings of organised peoples with one another". Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter. [918A-Bl '1

3. Quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of th• Covenant because then no detention is permissible under section 51 of the Code of Civil Procedure. [9210] •

4. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. To cast a person in prison because, of his poverty and comequent inability to meet his contractual liability is appalling. To be poor is no crime and to "recover" debts by the procedure of putting one in prison is flagrantly violative of Article 21 unless there is proof of the minimal fairness of bis wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant But this is precisely the interpretation put on the proviso to section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision as interpreted. [922A-Dl

CrvlL APPELLATE JURISDICTION : Civil Appeal No. 1991 of 1979.

Appeal by special leave from the Judgment and Order dated 9-7-1979 of the Kerala High Court in C.R.P. No. 1741 of 1979.

M. M. Abdul Khader and K. M. K. Nair for the Appellants.

K. M. Iyer and V. J. Franci~ for the) Respondent.

The Judgment of the Court was delivered by ,..

KRISHNA IYER. J.-This litigation has secured special leave~)..·

from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised pre-occupation has forsaken the civil debtor whose personal liberty is imperilled by the judicial process it&elf, thann to 1. 51 (Proviso) and O. 21, r. 37, Civil Procedure Code.

Here is an appeal by judgment-debtors-- the appellants-whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank-the respondent, which ha~ ripened into a decree and has not yet been discharged.

Is such deprivation of liberty illegal?

From the perspective of international Jaw the questiQn posed is whether it is right to enforce a contractual liability by imprisoning ./

• •

, J. G. VERGHESE v. BANK OF COClllN (Krishna Iyer,!.) 915

a debtor in the teeth of Art. 11 of the International Covenant on A Civil and Political Rights. The Article reads: No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. (Emphasis added)

An apercu of Art. 21 of the Conslitutiou suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged tds contractual liability in the face of the constitutional protection of He and liberty as expounded and expanded by a chain of rulings o[ this Court beginning with Maneka Gandhi's case.(') Article 21 mads:

21. Protection of life and personal liberty.-No person shall be deprived of his life or :personal lib<:rty except according to procedure established by law.

A third, though humdrum, question is as to whether, in this case, s. 51 has been complied with in its enlightened signification.

Thls turns on the humane meaning of the provision .

Some minimal facts may bear a brief J!arration sufficient to bring the two problems we have indicated, although we must candidly state that the Specal Leave Petition is innocent of these two issues

and the arguments at the bar have avoided virgin adventures. Even E so, the points have been raised and counsel have helped with their submissions. We therefore, proceed to decide.

The facts. The judgment-del:Jtors (appellants) suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs. 2.5 lakhs, the respondent-bani:: being the decree-holder.

There are two other

(I' money decrees against the appellants (in O.S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs. 7 lakhs. In execution of the decree in question (O.S. 57 of 1972) a warrant for arrest and detention in the civil prison was issued to the appellants under s. 51 and 0.21, r. 37 of the Civil Procedure Code on 22-6-1979. Earlier, there had been a similar warrant for arrest in G execution of the same decree.

Besides this process, the decreeholders had proceeded against the properties of the judgment.-debtors and in consequence, all these immo¥able properties had been at\ached for the purpose of sale in discharge of the decree debts.

It is averred that the execution court has also appointed a Receiver for the management of the properties under attachment. In short, B

(1) Maneka Gm1dh iv. Union of India, [1978] l S.C.C. 248.

the enjoyment or even the power to alienate the properties by the judgment-debtors has been forbidden by the court direction keeping them under attachment and appointing a Receiver to manage !hem.

Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion, a similar warrant had been already issued. The High Court, in a short order, has summarily dismi; sed the revision filed by the judgment-debtors against the order oi arrest.

We see no investigation having been made by the executing court regarding the c1ment ability of the judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts.

The question is whether under such circumstances the personal freedom of the judgment-debtors can be held in ransom until repayment of the debt, and if s. 51 read with 0. 21, r. 37, C.P.C. does warrant such a step, whether the provision of law is constitutional. tested on the touchstone of fair procedure under Art. 21 and in conformity with the inherent dignity of the human person in the light of Art. 11 of the International Covenant on avil and Political Rights.

A modem Shylock is shackled by law's humane hand-cuffs.

At this stage, we may notice the two provisions .. Section 51 runs thus:

51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

( a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison; ·) ( d) by appointing a receiver; or

( e) in such other manner as the nature of the relief granted may require.

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

( a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the in, stitution of the suit in which the A decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of , bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the deem:, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

( c) that the decree is for a sum for which !lie judgrnentdebtor was bound in a fiduciary capacity to account.

Explanation.-In the calculation of the means of the judgmentdebtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

(Emphasis added)

We may here read also order 21 Rule 37 :

37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention il'l the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specfiied in the notice and show cause why he should not be committed to the civil primi:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

Right at the beginning, we may take up the bearing of Art. 11 H on the law that is to be applied by an Indian Court whn there is a specific provision in the Civil Procedure Code, authorising detention

for non-payment of a decree debt.

The Covenant bans imprisonment merely for not discharging a decree debt.

Unless there be iome other vice or mens rea apart from failure to foot the decree, nternational law frowns on holding the debtor's person in civil prison, as hostage by the court.

India is now a signatory to this Covenant and Art. 51 ( c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another".

Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A. H. Robertson in "Human Rightsin National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.(1)

From the national point of view the national , rules alone count. ...... With regard to interpretation, however, it is a principle generally recognised in nationaj legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations.

The position has been spelt out correctly in a Kerala ruling(') on the same point.

In that case, a judgment-debtor was sought to be detained under 0. 21, r. 37 C.P.C. although he was seventy and had E spent away on his illness the means he once had to pay off tl1e decree.

The observations there made are apposite and may bear excerption :

The last argument which consumed most of the time of the long arguments of. learned counsel for the appellant is that the International Covenants on Civil and Political :r Rights are part of the law of the land and have to be respe<*- ed by the Municipal Courts. Article 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment-debtors.

The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a by-product of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." This revolutionary change in the regard for the human person is spanned by the possible shock that a resuscitated Shylock

would suffer if a modern Daniel were to come to judgment

(I) p. 13.

(2) Xavier v. Canara Bank Ltd., 1969 KLT 927 at 931, 933.

when the former asks the pound of flesh from Antonio's bosom according to the tenor of the bond, by flatly refusing the mayhem on the debtor, because the inability of an impecunious obligee shall not imperil his liberty or person under the new dispensation proclaimed by the Universal Declaration of Human Rights. Viewed in this progressive perspective we may examine whether there is any conflict between s. 51 CPC and Article 11 of the International Covenants quoted above. As already indicated by me, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfil the obligation. Section 51 also declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits actS of bad faith, he incurs the liability to imprisonment under s. 51 of the Code, but this does not violate the mandate of Article 11. However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative\ of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. .....

The judgment dealt with the effect of international law and the enforceability of such Jaw at the instance of individuals within the State, arid <>bserved:

The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actnal legislation is undertaken.

I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned! has adopted the covenants and ratified the operational protocol. The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member-States; but apart from such deep reverence, remedial action

at the instance of an aggrieved individual is beyond the area of judicial anthority.

While considering the international impact of international covenants on municipal Jaw, the decision concluded :

Indeed the construction I have adopted of s. 51, CPC has the flavour of Article 11 of the Human Rights Covenants.

Counsel for the appellant insisted that law and justice must be on speaking terms-by justice he meant, in the present case1 that a debtor unable to pay must not be getained in civil prison.

But my interpretation does put law and justice on speaking terms. Ccunsel for the respondent did argue that International Law is the vanishing point of jurisprudence is itself vanishing in a world where humanity is moving steadily, though slowly, towards a world order, led by that intensely active, although yet ineffectual body, the United Nations Organisation.

Its resolutions and covenants mirror the conscience of mank4id and insominate, within the member States, progressive legislation; but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts under these international covenants.

While dealing with the impact of the Dicean rule of Jaw on pCJi; itive law, Hood Phillips wrote--and this is all that the Covenant means now for Indian courts administering mnnicipal Jaw Cl

The significance of this kind of doctrine for the English lawyer is that it finds expression in three ways. First. it influences legislators. The substantive law at any given time may approximate to the "rule of Jaw'', but this oniy at the will of Parliament. Secondly, its principles provide canons of interpretation which express the individualistic attitude of English courts and of those courts which have followed the English tradition.

They give an indication of how the Jaw will be applied and legislation interpreted.

English courts lean in favour of the liberty of the citizen, especially of his person : they interpret strictly statutes which purport to diminish that liberty, and presume that Parliament does not intend to restrict private rights in the absence of dear words to the contrary.

(1) O. Hood Phillips' Constitutional and Administrathc lc:'v 6th Edn.

p.40.

The positive commitment of the States Parties ignites legislative A action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India.

Indeed, the Central Law Commission, in its Fifty Fourth Report, did cognise the Covenant, while dealing with s. 51 C.P.C. : (1)

The question to be considered is, whether this mode of B execution should be retained on the statute book, particularly in view of the provision in the International Covenant on Civil and Political Rights prohibiting imprisonment for a mere non-performance of contract.

Tue Law Commission, in its unanimous report, quoted the key passages C from the Kera/a ruling referred to above and endorsed its ratio. 'We

agree with this view' said the Law Commission and adopting that meaning as the correct one did not recommend further change on this facet of the Section. It is important to notice that, interpretationally speaking, the Law Commission accepted the dynamics of the changed circumstances of the debtor : (') I>

However, if he once had the means but now has not, -or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment.

This is reiterated by the Commission :

Imprisonment is not to be ordered merely because, like Shylock, the creditor says : (8)

"I crave the law, the penalty and forfeit of my bond."

The law does recognise the principle that "Mercy is rea- F sonable in the time of affliction, as clouds of rain in the time of drought." ( 4 )

We concur with the Law Commission in its construction of s. 51 C.P.C. It follows that quondam afiluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Art. 11 of the Covenant, because then no detention G is permissible under s. 51, C.P.C.

Equally meaningful is the import of Art. 21 of the Constitution in ; ntext of imprisonment for non-payment of debts.

The high

(l) p, 38.

(2) ibid p, 41.

(3) Merchant of Venice, Act, 4, Scene l.

(4) Ecclesiasticus, 35 20.

value of human dignity and the worth of the human person en.shrined in Art. 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.

Maneka Gandhi's case(1) as developed further in Sunil Batra v. Delhi Administration('), Sita Ram & Ors. v. State of U.P.( 3) and Sunil Batra v. Delhi Administration(') lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and con&equent inability to meet his contractual liability is appalling.

To be poor, in this land of daridra Narayana, is no crime and to 'recover' debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

Unreasonableness and unfairness in such a procedure is inferable from Art. 11 of the Covepant.

But this is precisely the interpretation we have put on the Proviso to s. 51 C.P.C. and the lethal blow of Art. 21 can'not strike down the provision, as now interpreted.

The words which hurt are "or has had since the date of the decree, the means to pay th~ amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had , not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless.

This is not a sound position apart from being inhuman going by the standards of Art. 11 (of the Covenant) and Art. 21 (of the Constitution). The .simple default to discharge is not enough.

There must b~ some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it.

The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.

Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently.

We would have, by this construction, sauced Jaw with justice, harmonised s. 51 with the Covenant and the Constitution.

The question may squarely arise some day as to whether the Proviso to s. 51 read with 0. 21, r. 37 is in excess of the Constitutional

(I) [1978] I S.C.R. 248.

(2) [1978] 4 s.c.c. 494.

(3) [19791 2 S.C.R. 1085.

(4) [1980] 2 S.C.R. 557.

mandate in Art. 21 and bad in part.

In the present case since we A are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.

In the present case the debtors are in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding has become obsolete in view of later happenings; Sri Krishnamurthi Iyer for the respondent fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re-adjudicate on the present means of the debtors vis a vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets.

The court will take note of other honest and urgent pressures o'n their assets, since that is the exercise expected of the court under the proviso to s. 51. An earlier adjudication will bind if relevant circumstances have not materially changed.

We set aside the judgment under appeal and direct the executing court to deciile de novo the means of the judgment-debtors to discharge the decree in the light of the interpretation we have given.

P.B.R.

Appeal allowed.

JOLLY GEORGE VERGHESE & ANR

THE BANK OF COCHIN

February 4, 1980

V. R. KRISHNA IYER

R. S. PATHAK, JJ.

Code of Civil Procedure

Section 51

section 51

order 21, rule 37

the Code of Civil Procedure

section 51

Article 11

Article 21

India

Article 11

section 51

the Code of Civil Procedure

Article 21

Articles 14 and 19

Article 21

Article 11

section 51

C.P.C

Article 21

M. M. Abdul Khader

K. M. K. Nair

K. M. Iyer

V. J. Franci~

KRISHNA IYER

Civil Procedure Code

Art. 11

Art. 21

Maneka Gandhi

Article 21

s. 51

S. 92

S. 57

s. 51 and 0

Maneka Gm1dh

s. 51 read with 0

C.P.C

Art. 21

Art. 11

Section 51

order 21 Rule 37

Art. 11

Art. 51

A. H. Robertson

Kerala

C.P.C

Article 11

Shylock

Antonio

s. 51

CPC

Article 11

Section 51

s. 51

Article 11

Article 11

s. 51

CPC

Article 11

United Nations Organisation

Hood Phillips

Parliament

Central Law Commission

s. 51

C.P.C

Article 11

s. 51

C.P.C

Art. 11

s. 51

C.P.C

Art. 21

Merchant of Venice

Art. 21

Arts. 14 and 19

Art. 21

Art. 11

s. 51

C.P.C

Art. 21

Art. 11

Art. 21

s. 51

s. 51 read with 0

[1980] 2 S.C.R. 557

Art. 21

Krishnamurthi Iyer

s. 51