P.N. Eswara Iyer v. Registrar, Supreme Court of India
Supreme Court of India, 1 February 1980, 5 judges, 1980 AIR 808, 1980 SCR (2) 889, 1980 SCC (4) 680
The Court upheld its amended Order XL rule 3 of the Supreme Court Rules, 1966, under which review petitions are disposed of by circulation without oral arguments unless the Court orders otherwise, and dismissed the writ petitions.
Facts
The Supreme Court, under its rule making power in Article 145, amended Order XL of the Supreme Court Rules, 1966. The old rules required a review petition to carry an advocate's certificate that it was supported by proper grounds and provided for a preliminary oral hearing. The amended rules dropped the certificate and provided that, unless the Court ordered otherwise, a review application would be disposed of by circulation without oral arguments, the petitioner being allowed to file additional written arguments; the Court could dismiss the petition or direct notice to the other side. A batch of writ petitions under Article 32 challenged the amendment as violating Articles 14, 19 and 21. The Supreme Court Bar Association intervened in support of the challenge. During arguments a further plea was raised that rule 2(1) discriminated against review petitioners in criminal proceedings.
Questions before the Court
- Is the amended rule, which disposes of review petitions by circulation without oral hearing unless the Court orders otherwise, unconstitutional as arbitrary or contrary to Articles 14, 19 and 21?
- Does rule 2(1) of Order XL discriminate against criminal litigants by limiting review in criminal proceedings to errors apparent on the face of the record?
What the Court held
- Krishna Iyer, J., for himself, Fazal Ali and Desai, JJ.: rules under Article 145 are subject to Part III and void if they violate the Constitution. Audi alteram partem is basic, but hearing means a fair opportunity to present one's case and fair consideration by fair minded judges; presentation can be written or oral depending on the situation.
- The same three judges: review is not a second hearing on the merits. Where a full oral hearing has taken place, the same judges read the written submissions and the whole record, and oral hearing follows if prima facie grounds appear, partial foreclosure of oral argument is neither unfair, unreasonable nor a violation of natural justice.
- The same three judges: circulation means discussion at a judicial conference; judges must meet and decide collectively, and movement of files with notings will not do. The rule is rationally linked to saving court time and speedier disposal of review petitions.
- The same three judges: the power of review comes from Article 137 and is equally wide in civil and criminal proceedings. 'Record' in rule 2(1) means any material already on record or brought on record with the Court's leave, so it covers subsequent events, new light and the other grounds in Order 47 Rule 1 CPC.
- Pathak and Koshal, JJ., in general agreement on the points in controversy: oral hearing is not essential when, on preliminary screening, a review application is found to be without substance; denial of oral argument is confined to that stage. They expressed no view on oral hearing in other kinds of cases, but held it is not mandatory in all cases.
- Krishna Iyer, J., for the three judges, saw no force in the challenges; Pathak and Koshal, JJ. were in general agreement on the points in controversy. The writ petitions were dismissed without any order as to costs.
Why it matters
The judgment upholds the practice of deciding review petitions in the Supreme Court by circulation at a judicial conference, the judges holding that a hearing need not always be oral and that review is not a rehearing. The three-judge opinion of Krishna Iyer, J. also reads the criminal review ground in Order XL rule 2(1) widely, holding that review power under Article 137 is as wide in criminal as in civil matters.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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 purpose is plain; the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Art. 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.”
“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.”
Provisions interpreted
- Article 137, Constitution
- Article 145, Constitution
- Article 14, Constitution
- Order XL, Rules 2 and 3, Supreme Court Rules, 1966 (as amended)
Related judgments
- Follows Prem Chand Garg v. Excise Commissioner, U.P. (1962)“become non est if violative of the proscriptions and prescriptions of the Constitution vide Premchand Garg's case.” (page 4)
Case and bench
- Parties
- P. N. Eswara Iyer v. The Registrar, Supreme Court of India
- Case
- Writ Petition Nos. 151, 187, 238, 458, 1038, 1069 and 1277 of 1979 (Original Jurisdiction)
- Decided
- 1 February 1980
- Bench
- Krishnaiyer, V.R., Fazalali, Syed Murtaza, Desai, D.A., Pathak, R.S., Koshal, A.D.
- Opinions
- Unanimous in result. The judgment of Krishna Iyer, Fazal Ali and Desai, JJ. was delivered by Krishna Iyer, J.; Pathak, J. gave a separate concurring opinion for Koshal, J. and himself, in general agreement on the points in controversy.
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