Lucknow, UP, India, 226028

SHOULD ADVOCATES STICK AND CONCENTRATE ON CASE CITATIONS IN COURTS?

Raunak 1

CITATIONS IN THE LIGHT OF A RECENT JUDGEMENT

Hon’ble Courts look upon citations as a convenient tool on law points to save the Court’s valuable time while dealing with the cases falling within the domain of citations given about the upheld principles of law, set by the other Courts or the Courts higher in the hierarchy.

Very recently, on 28th May 2020, the Hon’ble Delhi High Court on its own motion passed an order in the matter of negligence being exhibited in respect of COVID-19 affected DEAD BODIES and demanded explanations from the Government of NCT of Delhi and others. 

While passing the order the Hon’ble Delhi High Court cited a reference to the Supreme Court’s observation made as far back as in Pt. Parmanand Katara, Advocate vs Union of India, (1995) 5 SCC 248, wherein it was held that the Right to Dignity and Fair Treatment under Article 21 of the Constitution of India is not only available to a living man but also his body, after his death. Hon’ble Delhi High Court also cited a reference of the observations on the Right to Decent Burial or Cremation, as emphasized in Ashray Adhikar Abhiyan vs Union of India, (2002) 2 SCC 27 AND Hon’ble Delhi High Court also cited a reference of the Division Bench of the Chief Justice of the High Court of Bombay, recently vide judgment dated 22.05.2020 in a Public Interest Litigation titled as Pradeep Gandhy vs. the State of Maharashtra, wherein the same observations were made and emphasized.

From above, it can be seen that the Hon’ble Delhi High Court precisely referred to citations from Supreme Court cases and did not go into an elaborate exercise of deciding on the issue of Right to Dignity and Fair Treatment under Article 21 and summarily called explanations from the NCT Government, East Delhi Municipal Corporation, West Delhi Municipal Corporation, and South Delhi Municipal Corporation, in the matter of COVID-19 affected dead bodies.

The above reflects the fair use and need for citations.

On the contrary, the case citations during the hearing of cases have been looked upon by the advocates as very impressive tools of extracting favorable orders from the Courts, and hence, advocates remain stuck to the excavation of citations, rather than sticking to the process of preparation of grounds for relief in their cases.

A study of this approach of advocates has left several doubts on their abilities to deal with cases on desk and preparation and presentation of the grounds for relief.

UNDERSTANDING THEIR ROLE

Let us try to understand the importance of the case citations and the scope of their applicability in other cases about which the citations are cited.

Before we begin let us remember that the Legislation of Laws is a long process, which defeats the immediate modification of laws or their processes with the demand of the time AND it is here where the importance of the orders passed by the authoritative Courts become a reference for the Subordinate Courts and are cited to get preferred reliefs through citations where the grounds are claimed to be similar during the hearing of the cases by the advocates. Let us stop here and begin the journey of citations through the authoritarian approach.

Let us begin with the authority of the Courts.

Supreme Court is the Apex Court and its rulings are references for all the other Courts in India. Any order or ruling passed by the Apex Court becomes a reference for other Subordinate Courts until and unless set aside by any higher Court in authority, that is, a bench comprising of more Judges than the bench which passed the order. The Apex Court on principle decides mainly on points of law and not otherwise. Hence, its citations are very important which are otherwise considered as accepted or settled Principles of Law.

There are three High Courts in the country which are known as Courts of Record. They are Calcutta High Court, Madras High Court, and the Allahabad High Court.

The Courts of Record are those courts whose “RULE” passed while exercising discretion, becomes the law in reference not only for the Subordinate Courts but also for all other High Courts in the country. But, that is not the case for the above three mentioned High Courts. If any case law of any other High Court is brought before them, then, they aren’t bound to follow it. They may use their discretion to pass a judgment upon their understanding.

Rules are not the reliefs granted in particular cases but, the observations of the Courts on the points of law, their interpretation and scope of applicability concerning existing laws in force, or overruling the provisions which require modifications or changes concerning present-day situations.

It is seen that in most of the cases the advocates give citations mostly of cases where certain reliefs are passed by the Courts in certain cases under specific situations which may not apply to their case and they lose the opportunity of getting a favorable order which they could have obtained by otherwise proving their situation as a peculiar situation where the Court is called to exercise discretion and pass a favorable order which may otherwise become a citation for the other.

Advocates fail to prove their case-points under the covers of citations and fall prey to orders not passed in their favor and they land into the process of appeals and much more.

Advocates exhaust their valuable time in searching citations and lose control on their case grounds and start trying to match their case grounds with the grounds of their cited orders.

It is, therefore, opined that if the citations are not on some law point in dispute OR settled principles of law, then the advocates should prepare their grounds of defense rather than depending on citations.

CONCLUSION

An advocate’s office is characterized by thick, hard-bound, either blood-red colored or black colored books, several in their number, surrounding the working desk. One may think that those are for studying the various concepts and philosophies of law, but no. 90% of them are A.I.R. manuals, Supreme Court digests, etc., only to provide them with the relevant citations to assist the case. This reality shows the extent to which the advocates blindly depend upon citations, rather than focusing upon the thinner books of the Acts to get the stronger arguments. This tremendously affects the quality of their arguments and handicaps them from thinking about the deeper aspects of the law.

Although, it must be rightful to say that while searching for the relevant citations, advocates may come across certain other case laws, which are irrelevant situationally, may prove to be helpful at a later stage. Thus, we may see that although citations may speed-up the hearing process, they act as a narcotic for the advocates. At one point in time, they can’t work without them. This shows that how poorly rooted the importance of legal concepts are within their minds and have shaped their mentality to predominantly referring to the works of others, rather than making one’s own a reference for the fraternity.

Author(s) Name: Raunak Chaturvedi (Amity University, Kolkata)

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