The Proverbial Chickens of Destiny

The omission to cite an authority of law is not a ground for reviewing the prior judgment. It is the counsel’s error to have not brought to the notice of the Court the relevant precedents. Citing of authority, therefore, often offers problems to the Bar. There is sometimes the question of how many cases to cite. “Especially since, we have not yet been able to get rid of the forensic habit, of moving, in the matters of law, on the crutches of precedents and have developed a mental frame not to feel confident without the citation of authorities.” Elaborate submissions however do not necessarily impress upon the judges the profoundness of our leanings.

In 1923, Scrutton L.J. expressed his regret that the “counsels who argued this case would probably not recognize any of the judgments as having any relation to the arguments they addressed to us” [Smith v. Smith, (1923) P. 191, 202]. Lord Maugham too lamented once that it was hard for him to realize “how some days were spent in arguments”, in which “no less than 60 authorities were cited” [Noble v. Southern Railway Company, (1940) UKHL 1]. Hon’ble Justice Vikramajit Sen has taken after the tradition of discouraging prolix submissions. In the recent judgment of Sundeep Kumar Bafna v. State of Maharashtra [2014 (4) SCALE 215] (“Sundeep Kumar”) he has advised that, “Members of the Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedents that holds the field”. The otherwise innocuous observation would have escaped my due attention unless I had realized, with statistical proof, of how crucial is the phrase “holds the field” to Hon’ble Justice Sen. It is a phrase that he has used throughout his stints at the Delhi High Court and the Karnataka High Court. On being elevated to the Hon’ble Supreme Court of India too, Hon’ble Justice Sen, has noted previously in Rashmi Metaliks Ltd. v. KMDA, (2013) 10 SCC 95 that the SC often has to “face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law” and that the “correct approach is to predicate arguments on the decision which holds the field”.  Years of emphasizing of the “correct approach” have finally crystallized into the advisory words of Hon’ble Justice Sen in Sundeep Kumar. Obiter Dictasuch as this, “like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them” [Cooke v. New River Co., (1888) 38 Ch. D. 56]. And indeed “when a Judge has thought it necessary for the purposes of a case to make a deliberate examination of the practice of his Court, and to state such practice – the authority of such a statement can not be got rid of merely by arguing that it was not really necessary for the actual decision of the case” [Ex parte Rev. James Bell Cox, (1887) LR 20 QBD 19]. Hon’ble Justice Sen has imaginatively fit in, into the scheme of Sundeep Kumar, what the practice of his Court should be. “The practice of the Court is the law of the Court” [Burrowes v. High Commission Court, (1701) 3 Bulst. 48]. Only experience shall disclose though whether counsels are really able to reign over their vanities while citing precedents.

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