The art of presentation of a case in court

Accumulation of arrears in the Allahabad High Court has naturally caused the greatest disturbance in the legal circles in U. P. and among the litigant public. Every one interested in the maintenance of law and order and administration is most anxious that the administration of justice should be so speedy and so efficient as to inspire trust, respect and confidence in the masses of the people, so that instead of having resource to violence in any shape or form, the people should willingly, and indeed anxiously, resort to the law courts for a speedy removal and redress of their grievances. And private citizens should always harbour a sense of satisfaction that they can have their claims examined on their merits and disposed of quickly by the law courts, civil and criminal, in the land. For the generation of this feeling of complacency and satisfaction it is not only necessary that the administration of justice should be prompt and effective, but it should also be, as far as possible, inexpensive. Of course there is a general and widely-accepted feeling that efficient administration of justice in the criminal sphere is the duty of the State, and those who are drawn to the criminal courts whether as prosecutors or as accused, should not be called upon to bear in any way the costs incurred by Government in the running of the criminal law courts, or even in the wider criminal administrative arena. Different notions, have however prevailed regarding the administration of civil justice. The general principle introduced by the British Rulers was that litigants in the civil courts may well be called upon to bear, at least to some extent, the cost of administration of civil justice through the pay-ment of court-fees at the time of inception of civil proceedings as well as by payment of small fees on applications and other documents used during the process of litigation. In the beginning, and for many years, these court-fees and other charges were small and were never considered or treated as sources of revenue to the exchequer. But now unfortunately, since the last few years, outlook seems to have changed and a civil litigant almost seems to be treated as one guilty of committing an offence, and he is made to pay, almost as a fine, excessive sums as court-fees and other charges. Administration of civil justice in U. P. may well be called as a very paying source of public revenue to the treasury. It is not necessary for me to condemn this outlook as totally unjustifiable and to plead for a complete reconsideration of the current policy. Â These are all, however, wider questions. Here I should like to confess myself to what I consider to be the chief function and duty of the members of the legal profession in this administration of justice sphere. The main business of the legal profession is to assist the judiciary in the administration of justice. The judges of the land, from the highest court to the lowest, are bound to administer justice in accordance with the law in force in the country and the judicial procedures prescribed by the Legislature. Our national economy in every sphere has now become very complex, and a citizen's rights, duties and responsibilities are governed by a very elaborate and complicated volume of laws, rules and regulations, and the judiciary for the efficient performance of its duties requires the aid and assistance of an honours and competent bar to enable it to do its work and discharge its judicial responsibilities impartially, justly and efficiently. The legal profession in India is a product of the British rule and of the judicial system introduced by these rulers in the land. Every honest, upright, skilful and competent judge is anxious to have all aspects of every case placed before him by litigants, or their agents and representatives. So that he may dispose of the case with complete impartiality after full consideration in a meritorious manner. The parties to a litigation generally need the assistance of qualified pleaders and advocates to place their case before the law courts, and it is of course recognized that a member of the Bar in his conduct and in his argument before a judge endeavours to place his client's case and points of view before the court, and does not in any way desire or endeavour to express or place before the court his own personal views about the merits of the case then under consideration. Of course inasmuch as the primary duty of an advocate is to assist the judge in the administration of justice any representation, particularly of facts, known to the advocate to be baseless and incorrect to his personal knowledge, should not be permissible by the rules of the profession. No advocate, in my opinion, should plead for the acceptance of any evidence given by any witness when he knows personally that the said witness had been tutored to give false evidence, and all his allegations about his own personal knowledge were entirely fabricated. Similarly in my opinion for any advocate to plead for the innocence of his client when he knows personally that the individual concerned was guilty of committing the offence charged against him would be highly improper. He ought to decline the brief of any such ease if it is offered to him. The same rule should apply if his client privately confesses to him that he had committed the offence charged against him. My own personal practice was mainly confined to the arguing of appeals in appellate courts and I had made it a rule for myself never to ask my clients as to what the truth was, because in case he himself confessed to me that he was guilty, and his defence was a complete fabrication, for me it would not be only unprofessional, but indeed disgraceful and dishonourable to try my utmost to persuade the court or the jury to hold him innocent and free from blame. Any one who has personal knowledge of the facts in controversy in a particular case has, as his main and primary duty, not merely to argue about it as a pleader in any court, but to offer himself for examination as a witness in the ease and assist the Judge in correctly deciding it. Â Some times I am asked whether there is any difference between arguing a civil case in the civil Courts and a criminal ease in the criminal Courts in India. Opinions and experience may differ but I have treated them both alike. Of course in a criminal case for the conviction of the accused it is essential that the prosecution should bring home the commission of the offence directly to the accused by unambiguous evidence to the hilt. Mere probabilities are not enough. There should be direct evidence. In civil eases a judge may well be influenced by the probabilities of the situation. Â I am so far in a way dealing with the contents of one's arguments in Court. The main question of course is about the method of argument, how to do it, how to build it up, and how to proceed with it. Here again we are not dealing with hard and fast processes of construction of an argument. It is indeed quite a personal matter for each advocate. Every senior advocate builds a method of his own, and works it out, from his point of view, in a useful and fruit-yielding manner before the Courts where he may be called upon to appear and argue. These methods differ from advocate to advocate, each considered eminent, experienced and skillful in public esteem. Speaking for myself I came early to the conclusion that no judge is enamoured of lengthy arguments, and every judge wants to reduce its length as much as he can and to get rid of the case before him as quickly as possible, of course, after fully grasping its facts in all their relevant details and forming his own judgment about its appropriate conclusion. Then again I thought every judge was anxious not to be too keen about the perusal of the papers and spending his time-over them. He would prefer to use his ears rather than his eyes and thereby save himself physical exertion as much as he can. All these aspects led me to devise my own method of preparing my case and placing it before the Court for its consideration. I used to read the whole of the brief at home from beginning to end, pick out the crucial points in the case for discussion in my argument before the Court, and to rely as much as possible upon my epitome of the case rather than on my reading out from selected papers in Court. If I was appearing for the appellant in any case I would not open my argument by reading any particular description of papers but I would just start with the narrative of the case, as if I was telling a story, and the evidence oral and documentary, led therein by the parties, and then discuss the judgments of the lower Courts on contested issues. All this would be a fairly brief process, and then I would equally briefly put forth my objections of the soundness of the lower Court's judgments, and the reasons therefor. All this was merely verbal process with appropriate concise verbal summaries of relevant evidence) oral and documentary, relevant to the point in controversy. I found from experience this method to be the most useful and fruitful, provided of course my summaries of the evidence were correct and precise and accurate to the smallest detail. I was a practitioner in the Allahabad High Court, and in a High Court the advocates have one great advantage. They have the privilege of working before judges who are elevated to and continue to adorn the Bench for several years. Each judge and each advocate acquires an opportunity of coming into close personal contact with each other, and each judge is able and does, I imagine, form his own personal opinion about the temperamental processes and methods of advocacy of each busy and successful advocate in his Court. I found that almost every judge welcomed this verbal process of presentation of the case and its argument before him. It gave him little physical trouble and saved a lot of his time. Of course extracts from relevant documents and pieces of evidence had to be referred to and read, Law Reports cited, but there again verbal summaries and abbreviations went very far, and as for citation of judicial authorities from Law Reports, I came to the conclusion that almost every judge disliked lengthy citations of decided cases and a reference to one or two most appropriate authorities was quite adequate for the purpose in hand. This particular process and method of argument removed all elements of drudgery from the case and made the oral argument an enjoyable pastime, and had little tiring effect either upon the judges or on the counsel concerned. Â The abovementioned method of argument had, so far as I was concerned become familiar to every body, Judges, members of the Bar, and the litigant public in the Allahabad High Court, indeed even to many in the District Courts in Utter Pradesh. I found it useful and praiseworthy almost everywhere. I think, it paid me the richest dividends in the appeal in the Allahabad High Court in the famous Meerut Conspiracy case. That case arose out of a prosecution launched by the Government of India in 1924 against some 20 leading members of the all India Communist Party spread all over the sub-continent. That sensational all-India case had taken an enormous time in the lower criminal Courts in the Meerut District in Uttar Pradesh. The commitment proceedings before a Magistrate had taken 15 months, and the Sessions trial 2 years, and the Sessions Judge had taken 6 months' time in preparing his 600 page-judgment by which he had convicted almost all the accused and sentenced them to long terms of imprisonment. The Government of India had incurred enormous expense by engaging two Senior British Barristers, one after the other, one practising in the Calcutta High Court, the other in the Bombay High Court with juniors to assist them. An all-India De fence Committee had been formed for the conduct of the defence under the Chairmanship of Pandit Moti-lal Nehru on whose death his son, Jawaharlal Nehru, had succeeded him. It was common talk in the Allahabad High Court that the Senior Government Counsel from Bombay had declined an offer for a very substantial lump sum fee because he thought that the hearing of the appeal in the Allahabad High Court would take several months. It was well known that the Defence Committee had asked me to conduct the appeal with the co-operation of some juniors in the High Court, and the Government Counsel was said to have remarked that we would take at least 2 months for our defence reply, and he himself would not be able to finish his argument in less than a month. The appeal came on hearing in 1933 and my method of argument proved incredibly effective. I and my junior colleagues finished the whole case in five days. The prosecution Counsel took two for his reply, and on the eighth day Mr. Justice Shah Mohammad Sulaiman (who later became a Judge of the Federal Court in Delhi) dictated for several hours his Judgment in open Court very much in favour of the appellants. Throughout, the argument proceeded on a spoken basis and almost no reference was made either to the judgment or to the bulky printed record of evidence covering thousands of pages. This speedy conclusion created a sensation throughout India. Â This method of verbal presentation of a case was however probably not much in vogue elsewhere in other High Courts outside Uttar Pradesh. That at least was my impression. Of course wherever I went I endeavoured to follow my own lines. It led to a rather delightful episode in Bihar. Â In 1944 I was taken to the Patna High Court to argue a Criminal appeal against a death sentence. The case was a lengthy one, and involved an exceedingly human story. In the Sessions Court the case had taken 8 days and the Sessions Judge had written a long full Judgment. In the High Court the case had been fixed for hearing before a Division Bench of two Judges. I was told that it had been estimated that the hearing, as a normal process, would take at least three days but inasmuch as a "counsel from outside Bihar was also appearing in the case, another day was added, and four days were assigned for its hearing and disposal. The ease was posted for hearing, I think, on a Tuesday but above it was a listed part-heard one which took about two hours for its conclusion. I began opening the case about half an hour before the commencement of the lunch interval. I began in my usual way with narrating a rather touching human story without any reference to any papers of any kind. The judges sat listening closely comfortably seated on their chairs in a leisurely fashion. I concluded the narrative in the afternoon near about closing time and the judges thought that the hearing of the case would now commence in the usual normal manner. They pushed their chairs to their table and lifted up their paper-books. Noticing all this activity I said "My Lords, so far as I am concerned the end of the narrative is the conclusion of the argument. What would your Lordships now like me to read". The Judges were rather taken aback. They were obviously not used to this particular process of presentation of a case. The Court was also about to rise for the day. They named a very short witness and after looking at his deposition for five minutes or so, and rising for the day, one learned Judge said to the Government Advocate, appearing against me, "Mr. Government .Advocate, you better come prepared. You may be called on much sooner than you imagine". Next day when the case was called on I rose and submitted "I had nothing further to say. Would your Lordships like me to read the judgment". And on their saying that they had already read it, I closed my argument and the Government Advocate was called on. He addressed the Court for about an hour. There was no call for any rejoinder on my part and the learned Judges closed the hearing and reserved judgment, but kindly observed that hey would allow the appeal and set aside the death sentence. Thus the hearing was over before 12 O'clock mid-day. I dare say that this quick disposal cause 1 a lot of surprise in the Bar Library. It came quite definitely as a great boon to the sister and other relatives of the appellant then present in Court. Â Let me conclude by mentioning another amusing and delightful, but rather embarrassing, incident in the course of my practise. Very often, particularly in smaller cases, my clerk used to accept briefs offered in pending eases without any reference to me. Due to arrears cases came On hearing before the High Court Judges after years. A rather important point of law arose in one case and Judges accepting my submissions decided the appeal in my favour. Two or three months later another case of mine was posted before another two-Judge Division Bench and on perusal of the brief I found that the point of law arising therein was exactly the same as in the previous but I was supposed to press for the opposite view. It was too late to return the brief, so I opened the case and began urging for the view in favour of my client. I noticed that my friend opposing me was getting a bit excited, and soon he stood up and said that I had put forward as exactly contradictory argument in the previous case. I smilingly replied that my function was purely to expound and place before the Court the conflicting points of view on a question of law and it was for the Courts to decide for themselves which they thought was the right one. They did so and differed from the previous decision. That resulted again in a decision in my favour. The same point rose again shortly afterwards in a third case of mine and on my suggestion it was referred to a Full Bench. Before the Full Bench of three Judges I mentioned that I had already argued in favour of both the two opposite views, and I had nothing further to add and it was for their Lordships to say which in their view was the right one. The Full Bench ultimately decided the case, but their decision also was in favour of my client in the appeal before the Full Bench. This success of mine in all the three cases was naturally very much discussed, and was occasionally cited in support of th0 allegation that I was not merely a learned and clever advocate, but a case winner too. And I have found that a reputation of that kind is really the secret of success at the Bar.

Author Name: Dr Kailas Nath Katju