Justice DS Naidu of the Bombay High Court recently had some interesting perspectives to offer on the art of advocacy..Speaking at a lecture in Mumbai on the theme, “Dilemma of Special Leave Petition (SLP) dismissed; question of law kept open”, Justice Naidu began his speech by recounting his experience while sitting as a judge of the Kerala High Court..“In Kerala, advocates are quite studious. A lawyer having five years of practice would know thousands of case laws. Whenever I had an opportunity to address Bar Associations, I always told young advocates, don’t ever depend on case law. It will kill your creativity. If that is the law that guided us, there would not have been landmark cases. So, I would tell them, as Steve Jobs put it, think out of the box.”.He went on to add,.“Always remember, law is never bothered about correctness but it is bothered about certainty... Advocacy is about telling stories to judges. Whoever tells an interesting one, carries the day.”.As he spoke of his experiences teaching at judicial academies, he was also prompted to recount how he used to encourage legal creativity during his lectures..“I give lectures at judicial academies. Usually, judges don’t answer the questions. So, I give chocolates (as a reward) for absurd answers and not the correct or safe ones. Absurdity is original and real growth starts there. Our profession allows legal fiction. There is no objectivity in law.”.The main theme of the lecture as the title of the event suggested, was about the practice of the Supreme Court leaving “questions of law open” while dismissing SLPs. This in turn, creates a dilemma of whether the matter can be revisited by the High Courts and Tribunals. In this regard, Justice Naidu noted that the courts have recently interpreted such orders of the Supreme Court in different ways, hence the predicament. .To illustrate the inconsistency, Justice Naidu referred to various cases including the cases of Prem Pal Singh v. State of Uttar Pradesh,Balaji Prints Ltd v. Cce Thane, Y Satyanarayan Reddy v. Mandal Revenue Officer, State of Maharashtra v. Dattatraya Tukaram and State of Rajasthan v. Shankarlal Parmar..While in one case the High Court denied a fresh hearing when an SLP was dismissed with questions of law left open, in another case, the Tribunal opined that once the question of law is kept open, the previous decisions lose their precedential value and the matter can be revisited..Before concluding his address, Justice Naidu also gave an elaborate presentation on the ‘Doctrine of Precedent’, observing that the principles laid down in previously decided cases can be helpful to deal with the dilemma as posed in this arena. The speech was followed by an interactive session with the lawyers present..Answering a question pertaining to his interpretation of the lecture topic, Justice Naidu said,.“Once the SLP is dismissed by the Supreme Court in limine, the doctrine of merger would not apply. Once it is not applied, then whatever is decided by the High Court remains. Then High Court has a power of review [only].”.He further opined,.“So, it should be understood that once a question of law is left open after dismissing SLP, it is left open vis-a-vis the Supreme Court and not another Bench of the High Court. And only the review bench of the High Court can revisit it.”.The event was organised by Debrief, a legal collaborative led by the Supreme Court lawyer Abhay Anturkar and convened by advocates Shubham Misar, Yatin Malvankar, Ranjit Shinde and Ajinkya Udane..Image Courtesy: Debrief
Justice DS Naidu of the Bombay High Court recently had some interesting perspectives to offer on the art of advocacy..Speaking at a lecture in Mumbai on the theme, “Dilemma of Special Leave Petition (SLP) dismissed; question of law kept open”, Justice Naidu began his speech by recounting his experience while sitting as a judge of the Kerala High Court..“In Kerala, advocates are quite studious. A lawyer having five years of practice would know thousands of case laws. Whenever I had an opportunity to address Bar Associations, I always told young advocates, don’t ever depend on case law. It will kill your creativity. If that is the law that guided us, there would not have been landmark cases. So, I would tell them, as Steve Jobs put it, think out of the box.”.He went on to add,.“Always remember, law is never bothered about correctness but it is bothered about certainty... Advocacy is about telling stories to judges. Whoever tells an interesting one, carries the day.”.As he spoke of his experiences teaching at judicial academies, he was also prompted to recount how he used to encourage legal creativity during his lectures..“I give lectures at judicial academies. Usually, judges don’t answer the questions. So, I give chocolates (as a reward) for absurd answers and not the correct or safe ones. Absurdity is original and real growth starts there. Our profession allows legal fiction. There is no objectivity in law.”.The main theme of the lecture as the title of the event suggested, was about the practice of the Supreme Court leaving “questions of law open” while dismissing SLPs. This in turn, creates a dilemma of whether the matter can be revisited by the High Courts and Tribunals. In this regard, Justice Naidu noted that the courts have recently interpreted such orders of the Supreme Court in different ways, hence the predicament. .To illustrate the inconsistency, Justice Naidu referred to various cases including the cases of Prem Pal Singh v. State of Uttar Pradesh,Balaji Prints Ltd v. Cce Thane, Y Satyanarayan Reddy v. Mandal Revenue Officer, State of Maharashtra v. Dattatraya Tukaram and State of Rajasthan v. Shankarlal Parmar..While in one case the High Court denied a fresh hearing when an SLP was dismissed with questions of law left open, in another case, the Tribunal opined that once the question of law is kept open, the previous decisions lose their precedential value and the matter can be revisited..Before concluding his address, Justice Naidu also gave an elaborate presentation on the ‘Doctrine of Precedent’, observing that the principles laid down in previously decided cases can be helpful to deal with the dilemma as posed in this arena. The speech was followed by an interactive session with the lawyers present..Answering a question pertaining to his interpretation of the lecture topic, Justice Naidu said,.“Once the SLP is dismissed by the Supreme Court in limine, the doctrine of merger would not apply. Once it is not applied, then whatever is decided by the High Court remains. Then High Court has a power of review [only].”.He further opined,.“So, it should be understood that once a question of law is left open after dismissing SLP, it is left open vis-a-vis the Supreme Court and not another Bench of the High Court. And only the review bench of the High Court can revisit it.”.The event was organised by Debrief, a legal collaborative led by the Supreme Court lawyer Abhay Anturkar and convened by advocates Shubham Misar, Yatin Malvankar, Ranjit Shinde and Ajinkya Udane..Image Courtesy: Debrief
