# f P. N. ESW ARA IYER v. TilE REGISTRAR, SUPREME COURT OF INDIA

- **Citation:** [1980] 2 S.C.R. 889
- **Court:** Supreme Court of India
- **Decided:** 1980-02-01
- **Bench:** V. R. Krishna Iyer, S .. Murtaza Fazal Ali, D. A. Desai, B R. S. Pathak, A. D. Koshal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-p-n-esw-ara-iyer-v-tile-registrar-supreme-court-of-india-7940
- **Pages:** 24

## Headnote

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".
c
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).
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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..
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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
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890
SUPREME COURT REPORTS
[1980] 2 S.C.R. •
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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,
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there is no special virtue in sanctifying the dismissal by an oral ritual.
[898E, 899E, 900CJ
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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

## Text

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,f
P. N. ESW ARA IYER.
v.
TilE REGISTRAR, SUPREME COURT OF INDIA
February 1, 1980
11119
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[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".
c
In a petition under Article 32 of the Constitution the petitioners contended
D
t:h.at scuttling of oral presentation Qnd open hearing is subversive of the basic
creed that public justice shall be rendered from the public seat Ol1d that secrecy
8lld circulation are negation of judicial justice.
Dismissing the petitions,
HELD : per Krishna Iyer, S. Murtaza Fazal Ali and Desai, JJ (Pathak and
Kosltal JJ concurring).
E
Unchecked review has never been the rule·. A review petition must be supported by proper grounds because otherwise every disappointed
litigant' may
ave.ge his defeat by a routine review petition. [895D]
The original rule required a certificate by the advocate to the effect that the
petition was review-worthy. If it was so certified then a preliminary oral hear..
F
ing followed.
After such oral argument the court issued notice to the other
side or_ dismissed the petition. But as it turned out, laxity in certification and
pro•iscuity in filing review applications crowded the court with unwanted review petitions and the very solemnity of finality would bo fruslralcd if such a
garlle were to become popular. [895E-H]
The amended rule is designed to remove the evil of reckless reviews by the
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
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890
SUPREME COURT REPORTS
[1980] 2 S.C.R. •
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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
c
D
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]
l
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 requir~ment 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
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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.
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ESWARA IYER v. THE REGISTRAR (Krishna Iyer,!.)
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 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 /
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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.
E238/79.
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.
F
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
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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~
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there is merit in the motion and, in their discretion, choose to hear
,
farther arguments in court .
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SUPREME COURT REPORTS
[1980] 2 s.c.R.
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
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ESWARA IYER v. THE REGISTRAR (Krishna Iyer,!.)
893
cand become non est if violative of the proscriptions and prescripA
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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
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,imperio.
) •
The substantive power of review and the procedure for its exercise
are essential for any judicial system if unwitting injustice is to be obB
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 :
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"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."(')
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(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
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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
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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
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,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.
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(I) 885.
.
·(2) The Spirit of Liberty by Learned Hand, p. >)<iv.
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894
SUPREME COURT REPORTS
[1980] 2 S.C.R.
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.
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ESWA'.RA IYER v. THE REGISTRAR (Krishna Iyer, !.)
8 95
site party. An application for review shall as far as pracA
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 appliB
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
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SUPREME COURT REPORTS
[1980] 2 S.C.R,
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 pas~port. 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.
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ESWARA !YER v. THE REGISTRAR (Krishna Iyer, J.)
897
prima fade, that material error had marred the justice or legality
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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
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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
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ness is inhibited by the circulation process, more congenial to the
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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'
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which is the heart of our forensics.
With allotropic modifications,
counsel's arguments stressed this recurrent theme.
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SUPREME COURT REPORTS
[1980] 2 s.c.R.
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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 proB
cess, the possibilities of its miniaturisation and, in certain categories
its substitution by written submissions.
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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
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ESWARA IYER v. THE REGISTRAR (Krishna Iyer, J.)
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 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,
dirc~t 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, b~s 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
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SUPREME COURT REPORTS
[1980] 2 S.C.R.
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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 .
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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-.
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gent, impartial and open mind to the points presented.
A blank judge
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wearied by oral aggression is prone to slumber while an alert mind
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probing the 'papered' argument may land on vital aspects.
To swear
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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
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(l) Lala Ram v. Supreme Court of India & Ors., [1967] 2 S.C.R. 14.
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ESWARA IYER v. THE REGISTRAR (Krishna Iyer, J.)
90 I
enforcement of fundamental rights and an application to review the
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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.
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[1980] 2 s.c.R. •
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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.
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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
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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 man~ge
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
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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
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ESWARA IYER v. THE REGISTRAR (Krishna Iyer,!.)
903
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
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In England, leave to appeal to the House of Lords is a pattern of proceedings where obligatory oral hearing does not always exist.