tition Nos 151 187 238 458 1038 1069 and 1277 of 1979
Under Article 32 of the Constitution RK Garg section Balakrishnan and MKD Namboodiri for the Petitioner in WP No 15179
Soli J Sorabjee Sol
General EC Agarwala RN Sachthey and Miss A Subhashini for the Respondent in WP No 1511979
Petitioner in person in WP No 103879
PR Mridul and HK Puri for the Petitioner in WP No 18779
AK Gupta Vivek Seth Miss Madhu Moolchandani and OP Rana for the Respondent No 1 in WP 18779
Soli J Sorabjee Sol
EC Agarwala RN Sachthey and Miss A Subhashini for the Respondent No 2 in WP No 18779
AK Ganguli and DP Mukherjee for the Petitioner in WP 23879
AK Ganguli and OP Rana for the petitioner in WP No 45879
Soli J Sorabjee Sol
General RN Sachthey and Miss A Subhashini for the Respondent in WP Nos 458  23879
GL Sanghi and Miss Lily Thomas for the Petitioners in WP Nos
1069  127779
Dr LM Singhvi and Sardar Bahadur Saharya for the intervener
The Judgment of VR Krishna Iyer section Murtaza Fazal Ali and DA Desai JJ was delivered by Krishna Iyer J RS Pathak J gave a separate Opinion on behalf of AD 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 article 145 in the matter of review petitions whereby the judges will decide in circulation without the aid of oral submissions whether there is merit in the motion and in their discretion choose to hear further arguments in court
892 Is orality in advocacy that genius of Indo Anglian Justice an inalienable and ubiquitous presence in the court process or does it admit of abbreviated appearance and more pertinent to the point here discretionary eclipse at least when it has been preceded by a sufficient oral session  Secondly is hearing on Bench in public in contrast to considering the matter in conferential circulation the only hall mark of judicial justice absent which the proceeding always violates the norms of equality implicit in article 14 the limits of reasonableness bedrocked in article 19 the procedural fairness rooted in article 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 article 32 of the Constitution
The charge is that the novel expedient of substitution of oral arguments by written submissions and orders in circulation dispensing with public sitting save where and that may be rare the judges in their discretion choose to hear arguments in court is a dangerous deviance from the fundamentals of the Judicial Process
Apprehending maybe the futuristic repercussions of a decision on these questions even though now restricted to review petitions in other fields of hearing  at a later time the Supreme Court Bar Association has intervened and argued to impugn the amended rule through its President Dr L M Singhvi in supplementation of parties  submissions
We have allowed even other advocates to make brief contributions because when this Court considers issues of moment and pronounces thereon the law so declared binds all and it is ensouled in democratic propriety that the voice of reason and instruction be received from every permissible source in the nation if processed according to cursus curiae
This participative principle lends people s legitimation to the judicial process and strengthens the credentials of the rule of law
The composite question which settles the fate of these petitions emerges this way
article 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 article 145
We are here concerned with a rule made by this Court
The rule making power under article 145 is geared to regulating generally the practice and procedure of the Court 
In particular article 1451 b and e authorise such judicial  legislation in the shape of rules as to the procedure for hearing appeals and other matters pertaining to appeals and also as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review
Such rules like any other law are subject to the imperatives of Part III 893 and become non est if violative of the proscriptions and prescriptions of the Constitution vide Premchand Garg s case
Even the Supreme Court in the scheme of our Republic is no imperium in imperio
The substantive power of review and the procedure for its exercise are essential for any judicial system if unwitting injustice is to be obviated to the extent pragmatically possible without being blinded by any claim to impervious infallibility in the first judgment
Even judges more than other mortals to correct injustice if the error is discovered within working limits
Thus the root principle of judicial review is profound
Judge Learned Hand commended to the judges the great rule of humility contained in the oft repeated words of Cromwell I beseech ye in the bowels of Christ think that ye may be mistaken said Oliver Cromwell just before the battle of Dunbar
These words Judge Hand said he would like to have written over the portals of every church every court house and at every cross road in the nation emphasis added Such is the high minded tolerance with which this Court re examines its own orders to eliminate the happenstance of injustice unhampered by judicial hubris
This Court had framed rules for review right from the start but a certain amendment recently made has curtailed oral hearing in court as a matter of course and this measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian
If the salt hath lost his savour where with shall it be salted  Surely this Court s procedure should be the paradigm nothing short of it
So the question is whether it is so heathen to make oral hearing discretionary at the review stage and at the Supreme Court level that the rule can be condemned as constitutionally apostate  Another fatal infirmity was also pointed out as the arguments proceeded viz that a hostile discrimination had been made by r 21 against litigants who moved for review in criminal proceedings as against those in the civil jurisdiction
He will relegate it for consideration to a later stage
The relevant original rules ran thus 2
1 An application for review shall be by a petition and shall be filed within thirty days from the date of the 894 judgment or order sought to be reviewed
It shall set out clearly the grounds for review and shall unless otherwise ordered by the Court be accompanied by a certificate from the Advocate who appeared at the hearing of the case for the party seeking review or where the party appeared in person from any advocate of this Court that it is supported by proper grounds
The certificate shall be in the form of a reasoned opinion
2 No application for review in a civil proceeding shall be entertained unless the party seeking review furnishes to the Registrar of this Court at the time of filing the petition for review cash security to the extent of two thousand rupees for the costs of the opposite party
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
Where on application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact the Court may if it thinks fit in the interests of justice to do so direct the refund to the petitioner of the court fee paid on the application in whole or in part as it may think fit
The corresponding amended rules read thus 2
1 An application for review shall be by a petition and shall be filed within thirty days from the date of the judgment or order sought to be reviewed
It shall set out clearly the grounds for review
2 No change
Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments
The Court may either dismiss the petition or direct notice to the oppo 895 site party
An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed
No change
Where an application for review of any judgment or order has been made and disposed of no further application for review shall be entertained in the same matter
newly inserted The vital difference vis a vis the first point is that now oral hearing is no longer a right of the petitioner but facultative with the Bench and the circulatory  system replaces the public hearing method
A brief study of the anatomy of the rules will highlight the points urged
Dissecting the rules and comparing their directives we find that unchecked review has never been the rule
It must be supported by proper grounds
Otherwise every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of the virgin  dockets waiting in the long queue for preliminary screening or careful final hearing
It is perfectly reasonable to insist that the existence of proper grounds for review should be responsibly vouched for before the further time of the court is taken
So the original rule required a certificate to that effect by the advocate who earlier had appeared in the case
Here counsel functioned as an officer of the court and under the mandate of the old r 21 the Court granted or refused a certificate of review worthiness
If it was so certified then a preliminary oral hearing followed
After such oral argument the court issued notice to the other side or dismissed the petition
The system was fair enough if the certification process worked well and real errors and apparent mistakes marring the original judgment were the restricted grounds for review
But as it turned out laxity in certification and promiscuity in filing review applications crowded the court with unwanted review babies 
The docket crisis which quaked the calendar deepened to the detriment of litigative justice to the deserving who awaited their turn for hearing
Even otherwise frivolous motions for review would ignite the gambling  element in litigation with the finality of judgments even by the highest court being left in suspense
If every vanquished party has a fling at review  lucky dip and if perchance notice were issued in some cases to the opponent the latter and of course the former would be put to great expense and anxiety
The very solemnity of finality so crucial to judicial justice would be frustrated if such a game were to become popular
And it did become popular as 896 experience showed
The inflow of meritless review petitions which were heard and dismissed interrupted the stream of public justice
This Court in Sow Chandra Kanta and Anr
vs Sheikh Habib was faced with this problem and while dismissing the review petition observed how the opportunity for correction of grave errors was being perverted into the purchase of a fresh appeal to the same court against its own appellate or other judgment on the same grounds which were earlier rejected
This Court said A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility
A mere repetition through different counsel of old and over ruled arguments a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient
The very strict need for compliance with these factors is the rationale behind the insistence of counsel s certificate which should not be a routine affair or a habitual step
It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost
The Bench and the Bar we are sure are jointly concerned in the conservation of judicial time for maximum use
We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport
Nothing which we did not hear them has been heard now except a couple of rulings on points earlier put forward
Maybe as counsel now urges and then pressed our order refusing special leave was capable of a different course
The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality
These observations were symptomatic of the review syndrome  which therefore demanded remedying
And the amended rule purposefully incarnated under such auspices to remove the evil of reckless reviews by the introduction of preliminary judicial screening in circulation replacing counsel s certification with court s scanning exercise an added but necessitous judicial burden
If the review petition and written submissions for which provision was made convinced the Court 897 prima facie that material error had marred the justice or legality of the earlier judgment or order the case would be posted for oral hearing in court
Otherwise not Certworthiness  an American judicial shorthand for certificate worthiness  was by this amendment shifted from counsel to court
This in pith and substance is the rationale of the amended rule
Counsel at one stage asked whether there was back up empirical research to warrant the assumptions in the amendment whether facts and figures about the number and nature of wasted review  time of court and a host of other related aspects were available
No such material is before us now
It is fair to confess that the scientific method of undertaking research and study into public problems as prelude to legislation is a consummation devoutly to be wished  and lamentably lacking in our country and court management with special reference to maximisation of judicial time a matter of great national moment is a problem the very existence of which is currently beyond the keen of juristic research
Where awareness  is absent ad hocism is inevitable
But here the experiential evidence of the judges who considered and decided on the amendment and the inference available from the decisions on review petitions make good the proposition or makes do for empirical research
Be that as it may we are satisfied that enough justification exists in the daily experience of this Court to warrant the change the way it has been done
Even so constitutional canons cannot be contravened even by pragmatic compulsions
Paramountcy is paramountcy and exigency must bow before it
What then are the paramount principles of constitutionality violated by the amended rule  Absence of public hearing and oral presentation are the vices identified in counsel s arguments
Two major submissions were made to invalidate r 21 
The scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat not in secret conclave that hearing becomes deaf  if oral impressiveness is inhibited by the circulation process more congenial to the seclusion of bureaucratic cells fed on files than to the audio visual argumentation heard in the halls of court which is the insignia of judicial justice
Secrecy and circulation are the negation of judicial procedure
A review is a judicial proceeding and its hearing to fill the bill must not run away from the essentials of processual jurisprudence however allergic some judges may be to the sound system  which is the heart of our forensics
With allotropic modifications counsel s arguments stressed this recurrent theme
898 We must make it perfectly plain right at the outset that audi alterem partem is a basic value of our judicial system
Hearing the party affected is too deeply embedded in the consciousness of our constitutional order
The question is about the quality content and character of hearing  in the special review  situation
Incidentally we may deal with oral hearing and its importance in the court process the possibilities of its miniaturisation and in certain categories its substitution by written submissions
We agree that public hearing is of paramount significance
Justice in the Indian Republic is public and if judges shun the halls of court read papers at home confer in private and issue final fiats without listening to the bar as the representative of the seekers of justice the rule of law could well darken into an arcane trick and back door diktats issued from robed  adjudicators strain the escutcheon of justice
We also agree that oral advocacy has a non fungible importance in the forensic process which the most brilliant brief cannot match and the most alert judge cannot go without
The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper
There is no controversy that disposal by circulation Secretariat fashion cannot become a general judicial technique nor silent notings replace Bench Bar dialogues
We must clarify one point Circulation  in the judicial context merely means not in court through oral arguments but by discussion at judicial conference
Judges even under the amended rule must meet collectively cerebrate and reach conclusions
Movement of files with notings cannot make do
Otherwise mutual persuasion reasoned dissent and joint judgment will be defeated and machinisation of opinion and assertions of views in absentia will deprive judicial notices of that mental cross fertilisation essential for a Bench decision
The learned Solicitor General strongly urged that he was at one with counsel opposite on this point
We agree
The key question is different
Does it mean that by receiving written arguments as provided in the new rule and reading and discussing at the conference table as distinguished from the robed  appearance on the Bench and hearing oral submissions what is perpetrated is so arbitrary unfair and unreasonable a Pantomini  as to crescendo into unconstitutionality  This phantasmagoric distortion must be dismissed as too morbid to be regarded seriously in the matter of review petitions at the Supreme Court level
Let us look at the actuality without being scary
The rule under challenge does not implicate or attract an original hearing at all
It 899 relates to review  situations
Ex hypothesi an antecedent judicial hearing and judicial order exist
Indeed if a full oral hearing on the Bench has already taken place the dangerousness of secret disposals dies out
What is asked for is a review or second look at the first order
Should this second consideration be plenary  Never
The focus must be limited to obvious serious errors in the first order
Indiscriminate second consideration cannot be purchased by more payment of court fee
We reject the strange plea one of the advocates put forward that since the petitioner had paid court fee for review he had the right to the full panoply of oral hearing ad libitem covering the whole range
Review must be restricted if the hard pressed judicial process is not to be a wasting disease
There are many ways of limiting its scope content and modality
The confinement to certain special grounds as in Order 47 Rule 1 CPC is one way
The requirement of counsel s reasoned certificate of fitness Certworthiness for review is another
Judicial screening to discover the presence prima facie of good grounds to hear counsel in oral submission is a third
The first is good and continues
The second was tried and found ineffective and the third is being tried
Legislative policy is experimental as life itself is a trial and error adventure
What is shocking about this third alternative  Judges scrutinise the same judges who have once heard oral arguments and are familiar with the case and if they do not play truant direct a hearing in court if they find good grounds
If there is ground oral hearing follows
It is not as if all oral advocacy is altogether shut out
Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited
The court process is not a circus or opera where the audience can clamour for encore
When the system is under the severe stress of escalating case load management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief
Justicing too is in need of engineering
In many jurisdictions oral submissions and public hearings are disallowed in like circumstances
In England and America where orality in advocacy has been apotheosised certain extended stages of hearing  in the superior courts have been slimmed or removed
Even disposal of petitions for leave in judicial conference without a Bench hearing has been in vogue
This Court as Sri Garg rightly emphasised has assigned special value to public hearing and courts are not caves nor cloisters but shrines of justice accessible for public prayer to all the people
Rulings need not be cited for this basic proposition
But every judicial exercise need 900 not be a public show
When judges meet in conference to discuss it need not be televised on the nation s network
The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one s point on a dispute followed by a fair consideration thereof by fair minded judges
Let us not romanticise this process nor stretch it to snap it
Presentation can be written or oral depending on the justice of the situation
Where oral persuasiveness is necessary it is unfair to exclude it and therefore arbitrary too
But where oral presentation is not that essential its exclusion is not obnoxious
What is crucial in the guarantee of the application of an instructed intelligent impartial and open mind to the points presented
A blank judge wearied by oral aggression is prone to slumber while an alert mind probing the papered  argument may land on vital aspects
To swear by orality or to swear at manuscript advocacy is as wrong as judicial allergy to arguments in court
Oftentimes it is the judge who will ask for oral argument as it aids him much
To be left helpless among ponderous paper books without the oral highlights of counsel is counter productive
Extremism fails in law and life
We agree that the normal rule of the judicial process is oral hearing and its elimination an unusual exception
We are now on the vires of a rule relating to review in the highest court
A full dress hearing to the abundant accompaniment of public presence and oral submission is over
It is a second probe
Here written arguments are given
The entire papers are with the judges
The judges themselves are the same persons who have heard oral presentation earlier
Moreover it is a plurality of judges not only one
Above all if prima facie grounds are made out a further oral hearing is directed
Granting basic bona fides in the judges of the highest court it is impossible to argue that partial foreclosure of oral arguments in court is either unfair or unreasonable or so vicious an invasion of natural justice as to be ostracised from our constitutional jurisprudence
It must be remembered that review is not a second dose of the same arguments once considered and rejected
The rejection might have been wrong but that cannot be helped
Dissenting minorities regard the dominant majorities wrong in their judgments but there is no helping it
It may not be inept to refer to the critical distinction even where review of fundamental rights proceeding is sought between an original or virgin hearing and a second look at or review of the order already passed after a full hearing
In Lala Ram s case this Court accented on the essential distinction between an original application for the 901 enforcement of fundamental rights and an application to review the order made therein
It was there observed The main purpose of a review petition is not to enforce a fundamental right but to reopen an order vitiated by an error on the face of the record or for such other reasons
But it is said that the effect of reopening of the earlier order would be to restore his application to enforce the fundamental right and therefore in effect and substance an application to review such an order is also an application to enforce the fundamental right
It may be that this is a consequence of reopening an order but the application itself as we have said is not to enforce the fundamental right
Is there any nexus between the elimination of oral advocacy and the goal of dispensation of justice  Counsel urge there is none
We cannot agree
The goal to be attained is maximisation of judicial time and celerity of disposal of review petitions
And despite the heavier burden thrown on the judges during the hours outside court sittings by agreeing to read through and discuss the review papers for themselves there is obvious acceleration of disposal of review petitions without intrusion into court time
Equally clearly the benches are able to spare more time for hearing cases
To sum up the advantages of the circulation system linked up with the objects of saving judge time in court and prompter despatch of review petitions are obvious
To organize review Benches of the same judges who first heard the case only to last for a few minutes or a little longer then to disperse and re arrange regular Benches especially when most of the review petitions are repeat performances in futility is a judicial circus the court can ill afford
The rule is rational the injury is marginal
The magic of the spoken word the power of the Socratic process and the instant clarity of the bar bench dialogue are too precious to be parted with although a bad advocate can successfully spoil a good case if the judges rely only on oral arguments for weaving their decision
The written brief before careful judges can be a surer process of deeper communication than the vanishing cream  of speaking submissions
And a new skill preparation of an effective brief truly brief highly telling and tersely instructive is an art of the pen worth the acquisition especially when in practice there are many gifted lawyers who go with Goldsmith who wrote like an angel and talked like poor Paul 
India is neither England nor America and our forensic technology must be fashioned by our needs and resources
902 Indeed in this Court counsel have begun to rely heavily with good reason on written submissions and oral sweeteners 
The Bench can never go it alone
The bar must collaborate and catalyse
Nor is there any attempt in this circulation rule to run away from the open
Secret sittings exclusion of the public and cabals in conclave are bete noire for the judicial process
A review implies an earlier full hearing and if warranted a future further hearing
Every measure has to be viewed in perspective not out of focus
The consternation that the court by hidden procedures may undo the open  heritage is a chimerical fear or a disingenuous dread
In other jurisdictions which our jurists hold in anglophilic esteem this practice is current coin
The balancing of oral advocacy and written presentation is as much a matter of principle as of pragmatism
The compulsions of realities without compromise on basics offer the sound solution in a given situation
There are no absolutes in a universe of relativity
The pressure of the case load on the judges  limited time the serious responsibility to bestow the best thought on the great issues of the country projected on the court s agenda the deep study and large research which must lend wisdom to the pronouncements of the Supreme Court which enjoy awesome finality and the unconscionable backlog of chronic litigation which converts the expensive end product through sheer protraction into sour injustice all these emphasise the urgency of rationalising and streamlining court management with a view to saving court time for the most number of cases with the least sacrifice of quality and turnover
If without much injury a certain class of cases can be disposed of without oral hearing there is no good reason for not making such an experiment
If on a close perusal of the paper book the judges find that there is no merit or statable case there is no special virtue in sanctifying the dismissal by an oral ritual
The problem really is to find out which class of cases may without risk of injustice be disposed of without oral presentation
This is the final court of provisional infallibility the summit court which not merely disposes of cases beyond challenge but is also the judicial institution entrusted with the constitutional responsibility of authoritatively declaring the law of the land
Therefore if oral hearing will perfect the process it should not be dispensed with
Even so where issues of national moment which the Supreme Court alone can adequately tackle are not involved and if a considerable oral hearing and considered order have already been rendered a review petition may not be so demanding upon the judge s Bench  attention especially if on the face of it there is nothing new nothing grave at stake
Even here if there is some case calling for examination or suggestive 903 of an earlier error the court may well post the case for an oral hearing
Disposal by circulation is a calculated risk where no problem or peril is visible Oral argument has been restricted at several stages in the judicial process in many countries
In the United States the problem of a large number of frivolous petitions for re hearing in our diction review filed by counsel provoked the court into framing restrictive rules of hearing
One of the rules prescribes A petition for rehearing is not subject to oral argument and will not be granted unless a justice who concurred in the judgment or decision desires it and a majority of the court so determines
In England leave to appeal to the House of Lords is a pattern of proceedings where obligatory oral hearing does not always exist
The recent practice direction may be usefully referred to here As from October 1 1976 Petitions for leave to appeal to the House of Lords will be referred to an Appeal Committee consisting of three Lords of Appeal who will consider whether the petition appears to be competent to be received by the House and if so whether it should be referred for an oral hearing
Where a petition is not considered fit for an oral hearing the Clerk of the Parliaments will notify the parties that the petition is dismissed
Justice John M Harlan of the US Supreme Court wrote while explaining the need for controlling court work within manageable proportions  it would be short sighted and unwise not to recognise that preserving the certiorari system in good health and in proper balance with the other work of the Court are matters that will increasingly demand thoughtful and imaginative attention
As I have tried to show the essence of the problem as things stand today is to guard against wasteful encroachments upon the Court s time by preventing an increase in if not reducing the volume of improvident applications for certiorari
emphasis added 904 It is significant that in the U section Supreme Court leave to appeal is decided in conference not in court and even in regular hearing the maximum time for argument is often restricted in the highest court
Under r 28 it is one hour for each side
The mechanics of controlling argument time is interesting and instructive
Counsel arguing should keep track of his own time when he started and how much he has left
There is large clock in front of him
A note on the counsel table admonished counsel not to ask the Chief Justice what time remains
When counsel has only five minutes left a white light on the lectern immediately in front of him goes on
When time has expired a red light goes on
The Chief Justice is likely to stop counsel immediately seldom allowing him to do more than to finish his sentence
The red light also marks the time to recess for lunch at two o clock and the end of the day s session at 430 pm
The rationale of reducing oral submissions without danger to efficacy or advocacy is explained by George Rossman Associate Justice of the Supreme Court of Oregon Crowded dockets have forced appellate courts to curtail the time allotted for oral argument with the result that some members of the profession wonder whether courts care for oral argument
The practice of today shows that advocacy can be effective even though the period of delivery is short
Some attorneys can be effective even though the period of delivery is short
Some attorneys can do wonders in thirty minutes when nothing more is available
The English practice of course is different
Delmar Karlan has correctly set out the situation In the United States oral arguments are secondary in importance to the briefs and are rigidly limited in duration
In the United States Supreme Court one hour is allowed to each side but in many appellate courts less time that is permitted frequently no more than fifteen minutes Or a half hour for each side
Reading by counsel is frowned upon
The judges do not wish to hear what they can read for themselves
They expect to get all the information they need 905 about the judgment below the evidence and the authorities relied upon from studying the briefs and record on appeal
They do not even encourage counsel to discuss in detail the precedents claimed to govern the decision preferring to do that job by themselves in the relative privacy of their chambers with or without the assistance of law clerks
In England where there are no written briefs oral arguments are all important
They are never arbitrarily limited in duration
While some last for only a few minutes others go on for many days even weeks
The only control ordinarily exercised over the time of oral argument are informal ad hoc suggestions from the judges
The methods of the Marble Palace in Washington DC have some relevance though certainly not compulsiveness for us
John Frank writes As the docket of the Court became more crowded necessarily the time allowed for argument had to shrink
Under today s system the time is either a half hour or an hour for each side depending on the complexities of the case
This obviously precludes long introductions or eloquent perorations
Time is usually rigidly controlled the legend is that Chief Justice Hughes once cut off an attorney in the middle of the word if
If there are not too many interruptions the hour is sufficient lawyers must learn to be brief
We assume that judges will be up to the additional strain
We have stated enough to establish that judicial justice is not sabotaged by the eclipse of oral argument in a small sector of the forensic process
That is all that has been done by the amendment
A brief comparison between the earlier and the current position will bring this out
In the earlier rule a certificate by the lawyer was a condition precedent for entertainment of the review proceeding
In the revised rule no certificate by counsel but certification by the Bench that prima facie an infirmity of the kind mentioned in the rule vitiates the judgment takes its place
Thereafter in both cases oral advocacy follows
Thus the only difference is not as is some times assumed that oral arguments are for the first time and finally cut out
Even now oral hearing may be given and is given not routinely but if ground is made out to the satisfaction of the judges who first heard the case ignoring exceptional situations for the present
We have stated enough to repel 906 the attack on the vires of the rule
Nothing arbitrary nothing arcane nothing obnoxious given a sober appraisal
The possible impression that we are debunking the value of oral advocacy in open court must be erased
Experience has shown that at all levels the bar through the spoken word and the written brief has aided the process of judicial justice
Justicing is an art even as advocacy is an article Happy interaction between the two makes for the functional fulfilment of the court system
No judicial emergency  can jettison the vital breath of spoken advocacy in an open forum
Indeed there is no judicial cry for extinguishment of oral argument altogether
But the time has come for a proper evaluation of the role of oral argument at the appellate level in the decisional process
Justice Harlan has insisted that oral argument should play a leading part
It is not a traditionally tolerated part of the appellate process but a decisively effective instrument of appellate advocacy
He rightly stresses that there are many judges who are more receptive to the spoken than the written word
He hits the nail on the head when he states For my part there is no substitute even within the time limits afforded by the busy calendars of modern appellate courts for the Socratic method of procedure in getting at the real heart of an issue and in finding out where the truth lies
We wholly endorse the conclusion of that experienced Judge of the United States Supreme Court when he concludes his thesis on oral arguments Oral argument is exciting and will return rich dividends if it is done well
And I think it will be a sorry day for the American bar if the place of the oral argument in our appellate courts is depreciated and oral advocacy becomes looked upon as a proforma exercise which because of tradition or because of the insistence of his client a lawyer has to go through
The importance of oral advocacy has been the subject of many articles by learned writers
As Frederick Bernays Wiener writes in the Harvard Law Review Appellate judges virtually without exception say that a case should never be submitted without oral argument
A good many are on record in print to the same effect and 907 add that they feel a sense of genuine regret whenever the clerk announces that a case is being submitted on briefs alone
These expressions reflect the fact the task of judgment is infinitely harder when counsel is not present to be questioned regarding his exact position or the limits of a principle he has argued in the brief
We concur with the view expressed by American Judges on oral advocacy In the Supreme Court flexibility is especially essential Chief Justice Hughes in 1928 characterised the argument before the Supreme Court as oral discussions
The then Professor Frankfurter stated in 1933 The atmosphere of the Court is uncongenial to oratory and the restrictions imposed on counsel tend to deflate rhetoric
But true argument the exploration of issues particularly through sharp questioning from the bench continues to be one of the liveliest traditions of the Court Thus among the methods of persuasion the power of the spoken word cannot be sacrificed without paying too high a price in the quality of justice especially in the Supreme Court litigation
Maybe that the brief is valuable indeed a well prepared brief gives the detailed story of the case the oral argument gives the high spots
The supreme success of oral argument and the grave risk of jettisoning it from the repertoire of persuasive arts in the judicial process consists in George Rossman s observation The oral argument can portray the case as a human experience which engulfed the parties but which they could not solve
Thus the oral argument can help to keep the law human and adapted to the needs of life
It typifies the Bar at its best
We may sum up that the value of oral submissions need not be under rated nor of written briefs over rated
A blend of both is the best
It is apt to repeat the words of Judge Brian Mckenna
The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted bearings in open court
Those responsible might think more of changing them
In civil cases a written argument supplemented by a short oral discussion would sometimes save a great deal of time
908 The judicial process is in crisis not because there is a flood of cases flowing into the courts
In a developing country with an awakened people and democratic rights it is inevitable that the litigative Ganga may swell in its stream but as justice Warren Burger wrote In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods the same procedures and the same machinery Roscoe Pound said were not good enough in 1906
In the super market age we are trying to operate the courts with cracker barrel corner grocer methods and equipment vintage 1900
We have to introduce management techniques and sensitive skills in the administration of justice if its present pathological conditions are to receive therapeutic attention
The Rule regarding the disposal of review petitions by circulatory conference supplemented by oral hearing in appropriate cases is one small step in the right direction
Indeed by modernising our procedure we are furthering social justice for which the litigant community is waiting
We have set out the parameters of judicial procedure vis a vis original hearings and review hearings having due regard to the realities of forensic life
In the dynamics of hearing orality does play a role at the first round but at the second round in the same court is partly expendable
After all romance with oral hearing must terminate at some point
Nor can it be made a sacred cow of the judicial process
Comparative law lends confidence and from that angle we may refer to Halsbury Vol 10 para 761 where disposal without oral hearing of petitions to leave to appeal to the House of Lords is mentioned
Likewise American Jurisprudence Vol 5 para 979 especially footnote 13 endorses a similar procedure
Sri Mridul pressed upon us that this judge made legislation at the highest level was so plainly violative of article 14 an objection not spelt out in any writ petition before us that without seeking refuge under the rule of practice that a point not raised in the writ petition may not be allowed to be urged the judges must invalidate their own handiwork
Surely Justice and Truth are never afraid of exposure nor bothered about prestige
Certainly drafting legislation is not an easy art and judges are not artists beyond their orbit
Even otherwise Homer nods
Therefore if we find our rules void we must declare so and we will
The omission of the ground of discrimination in the pleadings may often forbid the argument because the other side may be prejudiced or the necessary facts may not be on record
But here 909 no such disability exists
A technical objection should not throw out a suitor from the plea for justice
After all the courts belong to the people as Jerome Frank once said
And litigants are legal patients suffering from injustices seeking healing for their wounds
Would you tell a sufferer in hospital that because he disclosed a certain symptom very late therefore he would be discharged without treatment for the sin of delayed disclosure  Humanism which at bottom sustains justice cannot refuse relief unless by entertaining the plea another may sustain injury
We have permitted the contention and proceed to consider it
The rule on its face affords a wider set of grounds for review for orders in civil proceedings but limits the ground vis a vis criminal proceedings to errors apparent on the face of the record 
If at all the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic
So it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments
It is likely to be the other way about
Supposing an accused is sentenced to death by the Supreme Court and the deceased  shows up in court and the court discovers the tragic treachery of the recorded testimony
Is the Court helpless to review and set aside the sentence of hanging We think not
The power to review is in article 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 article 137 and is as wide for criminal as for civil proceedings
Even the difference in phraseology in the rule Order 40 Rule 2 must therefore be read to encompass the same area and not to engraft an artificial divergence productive of anomaly
If the expression record  is read to mean in its semantic sweep any material even later brought on record with the leave of the court it will embrace subsequent events new light and other grounds which we find in Order 47 Rule 1 C P C
We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source
910 True the review power vis a vis criminal matters was raised only in the course of the debate at the Bar
But when the whole case is before us we must surely deal comprehensively with every aspect argued and not piecemeal with truncated parts
That will be avoidance of our obligation
We have therefore cleared the ground as the question is of moment of frequent occurrence and was mooted in the course of the hearing
This pronouncement on review jurisdiction in criminal proceedings sets at rest a possible controversy and is as much binding on this Court itself unless over ruled as on litigants
That is the discipline of the law of precedents and the import of article 141
As we conclude we wish to set the sights aright vis a vis oral hearings in judicial proceedings
To put superstitious faith in oral submissions or unlimited argumentation as the sole means of presentation and persuasion and to debunk the potency of well drawn up manuscript representations may be condemned as absurd
True our judicial culture nourishes oral advocacy and public hearing since secret cerebrations and cabal deliberations are ordinarily anathema
Speaking generally oral advocacy is a decisive art in promoting justice
The Bench cannot dispense with the Bar
In our system advocacy becomes functional when present viva voce and is enfeebled if presented in muted print
We do not claim that orality can be given a permanent holiday
Such an attitude is an over reaction to argumentum ad nauseum
But we must importantly underscore that while lawyer s advocacy cannot be made to judicial measure especially if judges are impatient there is a strong case for processing argumentation by rationalisation streamlining abbreviation and in special situations elimination
Review proceedings in the Supreme Court belongs to the last category
There is no rigidity about forensic strategies and the court must retain a flexible power in regard to limiting the time of oral arguments or in exceptional cases eliminating orality altogether the paramount principle being fair justice
Therefore it is quite on the cards that where no injury to justice will be all orality may suffer partial eclipse in the shape of time limitation or substitution by written submission even in categories other than review proceedings
All that we mean to indicate is that the mode of hearing  whether it should be oral or written or both whether it should be full length or rationed must depend on myriad factors and future developments
Judges of the Supreme Court must be trusted in this regard and the Bar will ordinarily be associated when decisions affecting processual justice are taken
We thus see no disparity given flexibility in decoding the meaning of meanings
We see no force in the challenges and do hope that the Bar will make its contribution to making experiments in modernization and humanization of the Justice System and court culture
911 PATHAK J We are in general agreement with our brother V R Krishna Iyer on the points directly in controversy in this writ petition but we consider it desirable to say a few words on certain aspects concerning the scope of Rule 3 of Order XL of the Supreme Court Rules 1966
At the outset we may state that as we are considering the question of the need for an oral hearing in relation to a review application only we refrain from expressing any opinion on the point whether an oral hearing is an imperative requirement in the disposal of other kinds of cases brought before the Court
That is a point to which we think we should address ourselves only when it directly arises
In regard to a review application we are clear that an oral hearing is not an essential requirement if on a preliminary examination the review application is found to be devoid of substance
A review application is an attempt to obtain a reconsideration of the judgment of the court disposing of the substantive proceeding
It attempts nothing more
The merits of the controversy have already been examined by the Court and in view of the ordinary scope of the power of review the re examination sought cannot proceed beyond the controversy already disposed of
It is substantially the same ground traversed again either entirely or in part
However the Rule takes care to provide for oral arguments should the Court consider that necessary
That necessity may arise in either of two cases
On the review application being placed before the judges they will consider it together with any additional written arguments filed by the petitioner in supplementation of the review application
If the judges hold on that screening of the review application that there is no case what ever for review they will reject the review application
On the contrary they may find that a good prima facie case for review has been made out and so they will direct notice to issue to the respondent and upon that an oral hearing will take place in the presence of the parties
That is one occasion on which an oral hearing is necessary
If the judges are not convinced that a prima facie case has been made out by the review application but are also not satisfied that there is no merit whatever in it and are of opinion that in order to come to a definite opinion prima facie on the merits of the review application it is desirable to hear the applicant orally they will notify him accordingly and afford an opportunity of oral hearing
On such oral hearing the judges may dismiss the review application if finally satisfied that there is no prima facie case for review but in the event of a prima facie case being made out they will issues notice to the respondent and an oral hearing will follow in the presence of the parties
It is apparent that the denial of oral argument is confined to the preliminary stage 912 only when the review application is placed before the judges and as it were they screen it for the purpose of determining whether there is reason to proceed further in the matter or whether it merits outright rejection
It is not possible to hold on principle that at that preliminary stage also the applicant for review is entitled to be heard orally
The merit of an oral hearing lies in this that counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed
The Court likewise can utilise an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel
But if there is on doubt whatever that the review application is totally without substance an oral hearing becomes a superfluity and at best a mere formality
A written submission is capable of careful drafting and explicit expression and is amenable to such arrangement in its written content that it pointedly brings to the notice of the reader the true scope and merit of the submission
We do not believe that a written submission in a review application cannot do adequate justice in the matter of setting forth the case of the litigant
If there is need for an oral hearing it is for the reason mentioned earlier that counsel come to know of the doubts in the mind of the Court and the court has an opportunity of having its doubts resolved
It is this feature of an oral hearing which gives to it its primary value and relevance
But that an oral hearing is mandatory in all classes of cases and at every stage of every case is a proposition to which we find ourselves unable to accede
The writ petition is dismissed but without any order as to costs
PBR Petitions dismissed


Summary:
Order XL rule 21 of the Supreme Court Rules as amended provides that an application for review shall be by a petition and shall be filed within thirty days from the date of the judgment or order sought to be reviewed
It shall set out clearly the grounds for review
Sub rule 3 provides that unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments
In a petition under Article 32 of the Constitution the petitioners contended that scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat and that secrecy and circulation are negation of judicial justice
Dismissing the petitions  HELD per Krishna Iyer section Murtaza Fazal Ali and Desai JJ Pathak and Koshal JJ concurring
Unchecked review has never been the rule
A review petition must be supported by proper grounds because otherwise every disappointed litigant may avenge his defeat by a routine review petition
895D The original rule required a certificate by the advocate to the effect that the petition was review worthy
If it was so certified then a preliminary oral hearing followed
After such oral argument the court issued notice to the other side or dismissed the petition
But as it turned out laxity in certification and promiscuity in filing review applications crowded the court with unwanted review petitions and the very solemnity of finality would be frustrated if such a game were to become popular
895E H The amended rule is designed to remove the evil of reckless reviews by the introduction of preliminary judicial screening in circulation replacing counsel s certification
If the review petition and written submissions convinced the court prima facie that material error had marred the justice or legality of the earlier judgment or order the case would be posted for oral hearing in court
Now certworthiness  is shifted from counsel to court
896H Circulation in the judicial context merely means not in court through oral arguments but by discussion at judicial conference
Judges even under the amended rule must meet collectively cerebrate and reach conclusions
In a review petition the same judges who have once heard oral arguments and are familiar with 890 the case direct a hearing in court if they find good grounds
It is not as if all oral advocacy is altogether shut out
Where oral presentation is not that essential its exclusion is not obnoxious
What is crucial is the guarantee of the application of an impartial and open mind to the points presented
If without much injury a certain class of cases can be disposed of without oral hearing there is no good reason for not making such an experiment
If on a close perusal of the paper book the judges find that there is no merit or statable case there is no special virtue in sanctifying the dismissal by an oral ritual
898E 899E 900C The rule on its face affords a wider set of grounds for review for orders in civil proceedings but limits the grounds vis a vis criminal proceedings to errors apparent on the face of the record
Here record means any material which is already on record or may with the permission of the court be brought on record
909C The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings
Even the difference in phraseology in the rule r2 must be read to encompass the same area and not to engraft the artificial divergence productive of anomaly
If the expression record is read to mean any material even later brought on record with the leave of the court it will embrace subsequent events new light and other grounds which are found in O 47 r 1 CPC 909G H Sow Chandra Kanta and Anr
vs Sheikh Habib   Lala Ram vs Supreme Court of India  Ors referred to
Per Pathak and Koshal JJ concurring
Oral hearing is not an essential requirement if on a preliminary examination a review application is found to be devoid of substance
A review application attempts nothing more than to obtain a reconsideration of the judgment of the court disposing of the substantive proceeding
The merits of the controversy having already been examined the re examination sought cannot proceed beyond the controversy already disposed of
911C D If the judges on screening the review application hold that there is no case whatever for review they will reject it
If on the other hand they find that a good prima facie case for review has been made out they will give an oral hearing in the presence of the parties
There may also be cases where even after they are satisfied that no prima facie case has been made out they consider it desirable to hear an applicant orally they will afford him an opportunity of oral hearing and in the event of a prima facie case being made out they will issue notice to the respondent and oral hearing will follow in the presence of the parties
In short the denial of oral hearing is confined to the preliminary stage only
It is not possible to hold that at that preliminary stage also the applicant for review is entitled to be heard orally
The merit of the oral hearing lies in the fact that counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed
The court can utilise an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel
If there is no doubt whatever oral hearing becomes a superfluity and at best a mere formality
911F H A written submission is capable of careful drafting and explicit expression and is amenable to such arrangement in its written content that it pointedly brings to the notice of the reader the true scope and merit of the submission
891 It is not correct to say that oral hearing is mandatory in all classes of cases and at every stage of every case
912D The question under consideration being the need for an oral hearing in relation to review applications only there is no need to express any opinion on whether an oral hearing is an imperative requirement in the disposal of other kinds of cases brought before the Court