Judgment Case ID: 4164

Judgment:
tition Nos. 151	 187	 238	 458	 1038	 1069 and 1277 of 1979. (Under Article 32 of the Constitution) R.K. Garg	 section Balakrishnan and M.K.D. Namboodiri for the Petitioner	 in W.P. No. 151/79. Soli J. Sorabjee Sol. General	 E.C. Agarwala	 R.N. Sachthey and Miss A. Subhashini for the Respondent	 in W.P. No. 151/1979. Petitioner in person in W.P. No. 1038/79. P.R. Mridul and H.K. Puri for the Petitioner	 in W.P. No. 187/79. A.K. Gupta	 Vivek Seth	 Miss Madhu Moolchandani and O.P. Rana for the Respondent No. 1	 in W.P. 187/79. Soli J. Sorabjee	 Sol. E.C. Agarwala	 R.N. Sachthey and Miss A. Subhashini for the Respondent No. 2 in W.P. No. 187/79. A.K. Ganguli and D.P. Mukherjee for the Petitioner in W.P. 238/79. A.K. Ganguli and O.P. Rana for the petitioner in W.P. No. 458/79. Soli J. Sorabjee	 Sol. General	 R.N. Sachthey and Miss A. Subhashini for the Respondent in W.P. Nos. 458 & 238/79. G.L. Sanghi and Miss Lily Thomas for the Petitioners in W.P. Nos. 1069 & 1277/79. Dr. L.M. Singhvi and Sardar Bahadur Saharya for the intervener. The Judgment of V.R. Krishna Iyer	 section Murtaza Fazal Ali and D.A. Desai	 JJ. was delivered by Krishna Iyer	 J.	 R.S. Pathak	 J. gave a separate Opinion on behalf of A.D. Koshal	 J. and himself. KRISHNA IYER	 J. Tersely expressed	 this bunch of cases challenges the vires of a recent amendment made by the Supreme Court under 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 145(1) (b) and (e) authorise such 'judicial ' legislation in the shape of rules as to "the procedure for hearing appeals and other matters pertaining to appeals" and also "as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review". Such rules	 like any other law	 are subject to the imperatives of Part III 893 and become non est if violative of the proscriptions and prescriptions of the Constitution vide Premchand Garg 's case. Even the Supreme Court	 in the scheme of our Republic	 is no imperium in imperio. The substantive power of review and the procedure for its exercise are essential for any judicial system if unwitting injustice is to be obviated to the extent pragmatically possible	 without being blinded by any claim to impervious infallibility in the first judgment. Even judges	 more than other mortals	 to correct injustice if the error is discovered within working limits. Thus	 the root principle of judicial review is profound. Judge Learned Hand commended to the judges the great rule of humility contained in the oft repeated words of Cromwell: "I beseech ye in the bowels of Christ	 think that ye may be mistaken" said Oliver Cromwell just before the battle of Dunbar. These words Judge Hand said he would like to have written "over the portals of every church	 every court house and at every cross road in the nation." (emphasis added) Such is the high minded tolerance with which this Court re examines its own orders to eliminate the happenstance of injustice unhampered by judicial hubris. This Court had framed rules for review	 right from the start	 but a certain amendment	 recently made	 has curtailed oral hearing in court as a matter of course and this measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian. "If the salt hath lost his savour	 where with shall it be salted ?" Surely	 this Court 's procedure should be the paradigm	 nothing short of it. So	 the question is whether it is so heathen to make oral hearing discretionary at the review stage and at the Supreme Court level that the rule can be condemned as constitutionally apostate ? Another fatal infirmity was also pointed out as the arguments proceeded	 viz.	 that a hostile discrimination had been made by r. 2(1) against litigants who moved for review in criminal proceedings as against those in the civil jurisdiction. He will relegate it for consideration to a later stage. The relevant original rules ran thus: 2. (1) An application for review shall be by a petition	 and shall be filed within thirty days from the date of the 894 judgment or order sought to be reviewed. It shall set out clearly the grounds for review and shall	 unless otherwise ordered by the Court	 be accompanied by a certificate from the Advocate who appeared at the hearing of the case for the party seeking review	 or where the party appeared in person	 from any advocate of this Court	 that it is supported by proper grounds. The certificate shall be in the form of a reasoned opinion. (2) No application for review in a civil proceeding shall be entertained unless the party seeking review furnishes to the Registrar of this Court at the time of filing the petition for review	 cash security to the extent of two thousand rupees for the costs of the opposite party. 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. 2(1) the Court granted or refused a certificate of review worthiness. If it was so certified	 then a preliminary oral hearing followed. After such oral argument	 the court issued notice to the other side or dismissed the petition. The system was fair enough if the certification process worked well and real errors and apparent mistakes marring the original judgment were the restricted grounds for review. But as it turned out	 laxity in certification and promiscuity in filing review applications crowded the court with 'unwanted review babies '. The docket crisis which quaked the calendar deepened	 to the detriment of litigative justice to the deserving who awaited their turn for hearing. Even otherwise	 frivolous motions for review would ignite the 'gambling ' element in litigation with the finality of judgments even by the highest court	 being left in suspense. If	 every vanquished party has a fling at 'review ' lucky dip and if	 perchance	 notice were issued in some cases to the opponent the latter and	 of course	 the former	 would be 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. 2(1) . The scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat	 not in secret conclave	 that hearing becomes 'deaf ' if oral impressiveness is inhibited by the circulation process	 more congenial to the seclusion of bureaucratic cells	 fed on files	 than to the audio visual argumentation heard in the halls of court	 which is the insignia of judicial justice. Secrecy and circulation are the negation of judicial procedure. A review is a judicial proceeding and its hearing	 to fill the bill	 must not run away from the essentials of processual jurisprudence	 however allergic some judges may be to the 'sound system ' which is the heart of our forensics. With allotropic modifications	 counsel 's arguments stressed this recurrent theme. 898 We must make it perfectly plain	 right at the outset	 that audi alterem partem is a basic value of our judicial system. Hearing the party affected is too deeply embedded in the consciousness of our constitutional order. The question is about the quality	 content and character of 'hearing ' in the special 'review ' situation. Incidentally	 we may deal with oral hearing and its importance in the court process	 the possibilities of its miniaturisation and	 in certain categories its substitution by written submissions. We agree that public hearing is of paramount significance. Justice	 in the Indian Republic	 is public; and if judges shun the halls of court	 read papers at home confer in private and issue final fiats without listening to the bar as the representative of the seekers of justice	 the rule of law could well darken into an arcane trick and back door diktats issued from 'robed ' adjudicators strain the escutcheon of justice. We also agree that oral advocacy has a non fungible importance in the forensic process which the most brilliant brief cannot match and the most alert judge cannot go without. The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper. There is no controversy that disposal by circulation	 Secretariat fashion	 cannot become a general judicial technique nor silent notings replace Bench Bar dialogues. We must clarify one point. 'Circulation '	 in the judicial context	 merely means	 not in court through oral arguments but by discussion at judicial conference. Judges	 even under the amended rule	 must meet	 collectively cerebrate and reach conclusions. Movement of files with notings cannot make do. Otherwise	 mutual persuasion	 reasoned dissent and joint judgment will be defeated and machinisation of opinion and assertions of views in absentia will deprive judicial notices of that mental cross fertilisation essential for a Bench decision. The learned Solicitor General strongly urged that he was at one with counsel opposite on this point. We agree. The key question is different. Does it mean that by receiving written arguments as provided in the new rule	 and reading and discussing at the conference table	 as distinguished from the 'robed ' appearance on the Bench and hearing oral submissions	 what is perpetrated is so arbitrary	 unfair and unreasonable a 'Pantomini ' as to crescendo into unconstitutionality ? This phantasmagoric distortion must be dismissed as too morbid to be regarded seriously in the matter of review petitions at the Supreme Court level. Let us look at the actuality without being scary. The rule under challenge does not implicate or attract an original hearing at all. It 899 relates to 'review ' situations. Ex hypothesi	 an antecedent judicial hearing and judicial order exist. Indeed	 if a full oral hearing on the Bench has already taken place the dangerousness of secret disposals dies out. What is asked for is a review or second look at the first order. Should this second consideration be plenary ? Never. The focus must be limited to obvious	 serious errors in the first order. Indiscriminate second consideration cannot be purchased by more payment of court fee. We reject the strange plea one of the advocates put forward that since the petitioner had paid court fee for review he had the right to the full panoply of oral hearing ad libitem covering the whole range. Review must be restricted if the hard pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope	 content and modality. The confinement to certain special grounds	 as in Order 47 Rule 1	 C.P.C.	 is one way. The requirement of counsel 's reasoned certificate of fitness (Certworthiness) for review is another. Judicial screening to discover the presence	 prima facie	 of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial and error adventure. What is shocking about this third alternative ? Judges scrutinise the same judges who have once heard oral arguments and are familiar with the case and	 if they do not play truant	 direct a hearing in court if they find good grounds. If there is ground	 oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case load	 management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering. In many jurisdictions oral submissions and public hearings are disallowed in like circumstances. In England and America where orality in advocacy has been apotheosised	 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 U.S. Supreme Court wrote	 while explaining the need for controlling court work within manageable proportions	 . it would be short sighted and unwise not to recognise that preserving the certiorari system in good health	 and in proper balance with the other work of the Court	 are matters that will increasingly demand 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 4.30 p.m. The rationale of reducing oral submissions without danger to efficacy or advocacy is explained by George Rossman	 Associate Justice of the Supreme Court of Oregon: Crowded dockets have forced appellate courts to curtail the time allotted for oral argument	 with the result that some members of the profession wonder whether courts care for oral argument. The practice of today shows that advocacy can be effective even though the period of delivery is short. Some attorneys can be effective even though the period of delivery is short. Some attorneys can do wonders in thirty minutes when nothing more is available. The English practice	 of course	 is different. Delmar Karlan has correctly set out the situation: In the United States	 oral arguments are secondary in importance to the briefs	 and are rigidly limited in duration. In the United States Supreme Court	 one hour is allowed to each side	 but in many appellate courts	 less time that is permitted	 frequently no more than fifteen minutes Or a half hour for each side. Reading by counsel is frowned upon. The judges do not wish to hear what they can read for themselves. They expect to get all the information they need 905 about the judgment below	 the evidence and the authorities relied upon from studying the briefs and record on appeal. They do not even encourage counsel to discuss in detail the precedents claimed to govern the decision	 preferring to do that job by themselves in the relative privacy of their chambers	 with or without the assistance of law clerks. In England	 where there are no written briefs	 oral arguments are all important. They are never arbitrarily limited in duration. While some last for only a few minutes	 others go on for many days	 even weeks. The only control ordinarily exercised over the time of oral argument are informal	 ad hoc suggestions from the judges. The methods of the Marble Palace in Washington D.C. have some relevance though certainly not compulsiveness for us. John Frank writes: As the docket of the Court became more crowded	 necessarily the time allowed for argument had to shrink. Under today 's system the time is either a half hour or an hour for each side	 depending on the complexities of the case. This obviously precludes long introductions or eloquent perorations. Time is usually rigidly controlled; the legend is that Chief Justice Hughes once cut off an attorney in the middle of the word "if". If there are not too many interruptions	 the hour is sufficient; lawyers must learn to be brief. We assume that judges will be up to the additional strain. We have stated enough to establish that judicial justice is not sabotaged by the eclipse of oral argument in a small sector of the forensic process. That is all that has been done by the amendment. A brief comparison between the earlier and the current position will bring this out. In the earlier rule a certificate by the lawyer was a condition precedent for entertainment of the review proceeding. In the revised rule	 no certificate by counsel but certification by the Bench that	 prima facie an infirmity of the kind mentioned in the rule vitiates	 the judgment takes its place. Thereafter in both cases oral advocacy follows. Thus the only difference is not	 as is some times assumed	 that oral arguments are for the first time and finally cut out. Even now	 oral hearing may be given and is given	 not routinely but if ground is made out to the satisfaction of the judges who first heard the case (ignoring exceptional situations for the present). We have stated enough to repel 906 the attack on the vires of the rule. Nothing arbitrary	 nothing arcane	 nothing obnoxious	 given a sober appraisal. The possible impression that we are debunking the value of oral advocacy in open court must be erased. Experience has shown that	 at all levels	 the bar	 through the spoken word and the written brief	 has aided the process of judicial justice. Justicing is an art even as advocacy is an 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. P.B.R. Petitions dismissed.

Summary:
Order XL	 rule 2(1) of the Supreme Court Rules (as amended) provides that an application for review shall be by a petition and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. Sub rule (3) provides that "unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments". In a petition under Article 32 of the Constitution the petitioners contended that scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat and that secrecy and circulation are negation of judicial justice. Dismissing the petitions	 ^ HELD: per Krishna Iyer	 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 (r.2) must be read to encompass the same area and not to engraft the artificial divergence productive of anomaly. If the expression "record" is read to mean any material even later brought on record	 with the leave of the court	 it will embrace subsequent events	 new light and other grounds which are found in O. 47	 r. 1	 C.P.C. [909G H] Sow Chandra Kanta and Anr. 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.]