TaxTMI 
TaxTMI 
1980 (2) TMI 258
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.... their discretion, choose to hear further 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-discretionary eclipse, at least when it has been preceded by a sufficient oral session ? Secondly is hearing on Bench in public, in contrast to considering the matter in conferential circulation, the only hall-mark of judicial justice, absent which the proceeding always violates the norms of equality implicit in Art. 14 the limits of "reasonableness" bedrocked in Art. 19, the procedural fairness rooted in Art. 21 ? And, finally, by resort to operational secrecy, does rationing or burking of oral hearing travesty the values of our Justice System ? These basic problems of the forensic process, of pervasive impact and seminal import, fall for consideration in these writ petitions under Art. 32 of the Constitution. The charge is that the novel expedient of substitution of oral arguments by written submissions and orders in circulation dispensing with public sitting, save where-and that may be rare-the judges in their discretion....
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....iple of judicial review is profound. Judge Learned Hand commended to the judges the great rule of humility contained in the oft-repeated words of Cromwell: "I beseech ye in the bowels of Christ, think that ye may be mistaken" said Oliver Cromwell just before the battle of Dunbar. These words Judge Hand said he would like to have written "over the portals of every church, every court-house and at every cross-road in the nation." (emphasis added) Such is the high-minded tolerance with which this Court re- examines its own orders to eliminate the happenstance of injustice unhampered by judicial hubris. This Court had framed rules for review, right from the start, but a certain amendment, recently made, has curtailed oral hearing in court as a matter of course and this measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian. "If the salt hath lost his savour, where- with shall it be salted ?" Surely, this Court's procedure should be the paradigm, nothing short of it. So, the question is whether it is so heathen to make oral heari....
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....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 opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. 4. No change. 5. Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same matter. (newly inserted) The vital difference, vis a vis the first point, is that now oral hearing is no longer a right of the petitioner but facultative with the Bench and the 'circulatory' system replaces the public hearing method. A brief study of the anatomy of the rules will highlight the points urged. Dissecting the rules and comparing their directives we find that unchecked review has never been the rule. It must be supported by proper grounds. Otherwise, every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of the 'virgin' d....
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....mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over- ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear them has been heard now except a couple of rulings on points earlier put forward. Maybe, as counsel now urges and then pressed, our order refusing special le....
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....ity violated by the amended rule ? Absence of public hearing and oral presentation are the vices identified in counsel's arguments. Two major submissions were made to invalidate r. 2(1) . The scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat, not in secret conclave, that hearing becomes 'deaf' if oral impressiveness is inhibited by the circulation process, more congenial to the seclusion of bureaucratic cells, fed on files, than to the audio- visual argumentation heard in the halls of court, which is the insignia of judicial justice. Secrecy and circulation are the negation of judicial procedure. A review is a judicial proceeding and its hearing, to fill the bill, must not run away from the essentials of processual jurisprudence, however allergic some judges may be to the 'sound system' which is the heart of our forensics. With allotropic modifications, counsel's arguments stressed this recurrent theme. We must make it perfectly plain, right at the outset, that audi alterem partem is a basic value of our judicial system. Hearing the party affected is too deeply embedd....
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....issed 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 court fee. We reject the strange plea one of the advocates put forward that since the petitioner had paid court-fee for review he had the right to the full panoply of oral hearing ad libitem covering the whole range. Review must be restricted if the hard-pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47 Rule 1, C.P.C., is one way.....
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....oral presentation is not that essential, its exclusion is not obnoxious. What is crucial in the guarantee of the application of an instructed, intelligent, impartial and open mind to the points presented. A blank judge wearied by oral aggression is prone to slumber while an alert mind probing the 'papered' argument may land on vital aspects. To swear by orality or to swear at manuscript advocacy is as wrong as judicial allergy to arguments in court. Oftentimes, it is the judge who will ask for oral argument as it aids him much. To be left helpless among ponderous paper books without the oral highlights of counsel, is counter productive. Extremism fails in law and life. We agree that the normal rule of the judicial process is oral hearing and its elimination an unusual exception. We are now on the vires of a rule relating to review in the highest court. A full-dress hearing, to the abundant accompaniment of public presence and oral submission, is over. It is a second probe. Here written arguments are given. The entire papers are with the judges. The judges themselves are the same persons who have heard oral presentation earlier. Moreover, it is a plurality of judges, not onl....
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....rompter despatch of review petitions are obvious. To organize review Benches of the same judges who first heard the case only to last for a few minutes or a little longer, then to disperse and re-arrange regular Benches, especially when most of the review petitions are repeat performances in futility, is a judicial circus the court can ill afford. The rule is rational, the injury is marginal. The magic of the spoken word, the power of the Socratic process and the instant clarity of the bar-bench dialogue are too precious to be parted with although a bad advocate can successfully spoil a good case if the judges rely only on oral arguments for weaving their decision. The written brief, before careful judges, can be a surer process of deeper communication than the 'vanishing cream' of speaking submissions. And a new skill-preparation of an effective brief, truly brief, highly telling and tersely instructive- is an art of the pen worth the acquisition especially when, in practice, there are many gifted lawyers who go with Goldsmith who 'wrote like an angel and talked like poor Paul'. India is neither England nor America and our forensic technology must be fashioned by ....
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....itatively declaring the law of the land. Therefore, if oral hearing will perfect the process it should not be dispensed with. Even so, where issues of national moment which the Supreme Court alone can adequately tackle are not involved, and if a considerable oral hearing and considered order have already been rendered, a review petition may not be so demanding upon the judge's 'Bench' attention, especially if, on the face of it, there is nothing new, nothing grave at stake. Even here, if there is some case calling for examination or suggestive of an earlier error, the court may well post the case for an oral hearing. (Disposal by circulation is a calculated risk where no problem or peril is visible.) Oral argument has been restricted at several stages in the judicial process in many countries. In the United States the problem of a large number of frivolous petitions for re- hearing (in our diction, review) filed by counsel provoked the court into framing restrictive rules of hearing. One of the rules prescribes: A petition for rehearing is not subject to oral argument, and will not be granted, unless a justice who concurred in the judgment or decision desires it, and ....
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.... 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 about the judgment below, the evidence and the authorities relied upon from studying the briefs and record on appeal. They do not....
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....n that we are debunking the value of oral advocacy in open court must be erased. Experience has shown that, at all levels, the bar, through the spoken word and the written brief, has aided the process of judicial justice. Justicing is an art even as advocacy is an art. Happy interaction between the two makes for the functional fulfilment of the court system. No judicial 'emergency' can jettison the vital breath of spoken advocacy in an open forum. Indeed, there is no judicial cry for extinguishment of oral argument altogether. But the time has come for a proper evaluation of the role of oral argument at the appellate level in the decisional process. Justice Harlan has insisted that oral argument should play a leading part. It is not "a traditionally tolerated part of the appellate process" but a decisively effective instrument of appellate advocacy. He rightly stresses that there are many judges "who are more receptive to the spoken than the written word". He hits the nail on the head when he states: For my part, there is no substitute, even within the time limits afforded by the busy calendars of modern appellate courts, for the Socratic method of procedure in getting at t....
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....es but which they could not solve. Thus, the oral argument can help to keep the law human and adapted to the needs of life. It typifies the Bar at its best. We may sum up that the value of oral submissions need not be under-rated nor of written briefs over-rated. A blend of both is the best. It is apt to repeat the words of Judge Brian Mckenna. The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted bearings in open court. Those responsible might think more of changing them. In civil cases a written argument supplemented by a short oral discussion, would sometimes save a great deal of time. The judicial process is in crisis not because there is a flood of cases flowing into the courts. In a developing country with an awakened people and democratic rights, it is inevitable that the litigative Ganga may swell in its stream, but as justice Warren Burger wrote: In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the super-market age we are trying to....
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....ospital that because he disclosed a certain symptom very late therefore he would be discharged without treatment for the sin of delayed disclosure ? Humanism, which, at bottom sustains justice, cannot refuse relief unless, by entertaining the plea, another may sustain injury. We have permitted the contention and proceed to consider it. The rule, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to 'errors apparent on the face of the record'. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the 'deceased' shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the Court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Art. 137 and it is equ....
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....ce secret cerebrations and cabal deliberations are ordinarily anathema. Speaking generally, oral advocacy is a decisive art in promoting justice. The Bench cannot dispense with the Bar. In our system advocacy becomes functional when present viva voce and is enfeebled if presented in muted print. We do not claim that orality can be given a permanent holiday. Such an attitude is an over- reaction to argumentum ad nauseum. But we must importantly underscore that while lawyer's advocacy cannot be made to judicial measure especially if judges are impatient, there is a strong case for processing argumentation by rationalisation, streamlining, abbreviation and in, special situations, elimination. Review proceedings in the Supreme Court belongs to the last category. There is no rigidity about forensic strategies and the court must retain a flexible power in regard to limiting the time of oral arguments or, in exceptional cases, eliminating orality altogether, the paramount principle being fair justice. Therefore, it is quite on the cards that where no injury to justice will be all, orality may suffer partial eclipse in the shape of time-limitation or substitution by written submission ....
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....ening 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 is necessary. If the judges are not convinced that a prima facie case has been made out by the review application, but are also not satisfied that there is no merit whatever in it, and are of opinion that in order to come to a definite opinion prima facie on the merits of the review application it is desirable to hear the applicant orally they will notify him accordingly and afford an opportunity of oral hearing. On such oral hearing, the judges may dismiss the review application if finally satisfied that there is no prima facie case for review, but in the event of a prima facie case being made out they will issues notice to the respondent and an oral hearing will follow in the presence of the parties. It is apparent that the denial of oral argument is confined to the preliminary stage only, when the....