History, Necessity and Importance of Law Reporting in India

The study of legal history reveals that legal system though not a creation of judges even than it is based on the principles laid down by the judges.

The origin of present legal system in India inherited the principles laid down by Privy Council and other superior courts established by the British Empire.

In England though some efforts was made to codify the enactments but the vast field of legal wisdom is guided by the English judges. During British Rule the English judges used to dispense justice in India and Barristers who used to practice in Indian courts by habit prefer to argue and follow the law applicable in England and some of the English judges in process of establishing supremacy of previous decisions attempted to insist on previous judgments as guideline for deciding cases.

The first attempt for recognition of previous judgments was made in 1831 by DORIN when he presided as judge of SADAR DIWANI ADALAT in Calcutta although legal recognition to previous decisions was not given in any law.

The judges of their own choice used to decide cases on the basis of principles laid down in the previous decisions. PRIVY COUNCIL for the first time in its decision Mata Prasad Vs Nageshwar Sahaya 52 I A 398 declared that courts in India are not free to dispute the legal principles laid down by the Privy Council.

Various High Courts also held that subordinate courts are bound to obey the law and legal principles laid down by the High Court even when they are not in agreement with the correctness of legal principles personally. Some of these judgments are as below: -

1 – Rama Swami Vs Chandra Katayya A I R 1925 Mad 1

2 – Dhando Vs Mishra A I R 1936 Bom 95

3 – Vinayak Vs Moreshwar A I R 1944 Nag 44

4 – Bankey Lal Vs Batra A I R 1953 Alld 247

5 – Roy Vs Ram Dayal A I R 1950 Alld 134

With a view to maintain uniformity in decisions the publication of judgments started in 1974 with the establishment of Supreme Court (British court) in Calcutta.

The history of publication of judgments of Calcutta Supreme court is found in MORTON`S REPORTS during 1974 to 1841.

Chief Justice SIR EDWARD HYDE EAST also prepared a collection of Supreme court judgments at Calcutta.

Besides Morton’s reports the following reports were also published during period mentioned against them as below: -

(i) BINGELL`S REPORTS 1830 – 1831

(ii) FULTONS REPORTS 1845

(iii) MONTROU REPORTS 1846

(iv) MOLNOIS REPORTS 1853 – 1859

(v) GEORGE TAYLOR`S REPORTS

(vi) GOSPERS REPORT OF SMALL CAUSWE COURTS (Cases determined by Calcutta Supreme Court 1850 – 1859)

In 1824 Former judge SIR FRANCIS MACNAUGHTON also made similar efforts in his writing “ Considerations upon Hindu Law” In 1825

SIR WILLIAM MACNAUGHTON also made similar efforts in his writing “Dissertations on Mohammedan Law”

A collection of previous decisions was included in publication of LONGVILLE CLARKE in 1829 under title SMOULTS COLLECTION OF ORDERS from 1774 to 1813 published in 1834.

In India recognition in law to previous judgments was given under Government of India Act 1935 wherein under section 212 it is provided that decisions of Privy Council and Federal Court are binding on all courts in India. Similarly article 141 Constitution Of India mandate that “Law declared by Supreme Court Of India shall be binding on all courts within territory of India.

Thus to ensure the compliance of requirement of article 141 and to regulate the legal system accordingly publication of judgments and to keep the record up dated is the need of legal system so as to create harmony in decisions of various courts on principle of law. In India individual business corporate sector are involved in the process of reporting judgments of various superior courts such as Supreme Court of India and High Courts of States.

The publishers are guided by their own business interest and to gain profit. Thus the number of Law reporters gradually increased and it becomes impossible to purchase all reporters by individual law practitioners and judges within limited financial resources.

To meet the situation a non official bill was introduced in Central Assembly in 1927 to the effect that reporting of previous judgments published in non Government reporters be prohibited but the attempt was not succeeded due to opposition by influential lawyers of the time.

In 1957 the whole matter was submitted for consideration to Law Commission and the Law Commission expressed its views as below: - “ If the principle of precedent be recognized and the decisions are made binding than the question of authority by their reporting or non reporting does not arise”

LAW Commission was of the view that a judgment is law because matter was decided by a judge of the court and not on the ground that it is published in a particular reporter.

The view expressed by Law Commission is not debatable but the real problem lies in implementation of correct law. The increasing number of law reporters and the bulk of judgments published therein without scrutiny of their importance made it difficult to purchase all reporters and study them thoroughly by lawyers and judges. Some times it happens that judgment expressing controversial views of different court or even of the same court by different judges published causing hardship to lawyers and judges in harmonizing the situation in selecting the correct principle of law thus possibility of incorrect judgment increased.

Thus the need to control law reporting by superior authority by itself arises. It will be a step forward in the matter if a permanent committee of senior judges be nominated in the Supreme Court as well as in respective High Courts to decide the issue whether the publication of particular judgment will aid something to illustrate the ambiguity and correct principle of law which was not made clear in previously decided cases, so far as the other unpublished judgments is concerned an arrangement to issue certified copies on request be ensured after realizing nominal charges and leave the matter to the lawyers, judges and litigant to obtain if they are able to afford it.

The Apex court in order to illustrate the principle underlying the provisions under article 141 Constitution of India observed in State of Bihar Vs Kalika Kaur AIR2003SC 2443 as below: - “ Earlier judgment – may seem to be not correct – yet would be binding on later Bench of co – ordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter, was not considered or not raised before the court deciding the matter earlier, but it would not be a reason to say that the decision was rendered per in curian and is liable to be ignored.” “ Easy course of saying that earlier decision was rendered per in curian is not permissible and the matter will have to be resolved only in two ways – “ Either to follow the earlier decision or refer the matter to a larger bench to examine the issue, in case it is felt that earlier decision is not correct on merits”

While interpreting provisions of article 141 Constitution of India Apex court explained in M.A. Murthy Vs State of Karnataka (2003) 7 SCC517 “ Law declared by Supreme Court whether it is retrospective or prospective – normally the decision of the Supreme Court enunciating a principle of the law is applicable to all cases irrespective of stage of pendency thereof because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception.

The doctrine of prospective overruling which is feature of American jurisprudence is an exception to the normal principle of law.

A decision of Supreme Court unless indicated therein to be operative only prospectively cannot be treated so.

Further in a case of M.I.Subbarya Setty (dead) by L.R. Vs M.L.Nagappa Sette (dead) by L.R. (2002) 4SCC743 Apex court observed –“Art.141of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid article empowers the Supreme Court to declare the Law. It is therefore essential function of the court to interpret legislation.

The statement of the court on matters other than law, like facts may have no binding force, as the facts of the two cases may not be similar but what is binding is the “Ratio” of the decision and not finding of any fact.

(a) It is the principle found out upon a reading of a judgment as a whole in the light of questions before the court that forms the ratio and not any particular word or sentence to determine whether a decision has “declared law”. It cannot be said to be a law when a point is disposed off on concession and what is binding is the underlying a decision. A judgment of the court has to be read in the context of questions, which arose for consideration in the case in which the judgment was delivered.

(b) An obiter dictum as distinguished from a ratio decidendi, is an observation by the court on a legal question suggested in a case before it but not arising in such manner as to require a decision, such an obiter may not have a binding precedent as to observation was necessary for the decision pronounced; but even though an obiter may not have a binding effect as a precedent, but it can not be deemed that it is of considerable weight. The law, which is binding under article 141 Constitution of India, would therefore extend to all observations of point raised and decided by the court in a given case.

To maintain the harmony amongst judgments of all courts in Indianeed for collection of law declared by the Supreme Court arise , simulatneously to avoid discrepencies the judgments of other superior courts alike Supreme Court and High Courts be made available to all law courts atleast and other institutions engaged in administration of Justice. Now a days the task of publishing decisions of Supreme Court , High Courts and other Tribunals having Higher Authourity are managed by private publishers and the same is suffering by competitive phenomenon of earning more profits through minimum investment hence the material collected for publication some time delayed due to lack of resources and knowledge .

The number of decisions published in various law Reporters are also uncontrolled thus increased the cost of publication which are ultimately got realized from litigants through legal professionals . Thus legal practitioners who are unable to earn surplus money got dis appointed and loose confidence due to lack of knowledge .

It is therefore the prime need to minimize the number of deccisions within means of purchase by beginers in legal practice as they require more help for acquiring confidence. This may be done by marshalling and publishing the decisions of more importance those declaring law by Supreme Court and establishing the Principles of law by Supreme Court or by High Courts in one or two volume separately and the other decisions considered to be worth published be published in other volumes of the same journal and the prices of these volumes may be so managed as to facilitate the purchase of single volume of one`s choice

Author-Naresh Chandra Dubey, LL.M Advocate

Former Additional District Judge

148 Ansal`s Courtyard

100 Ft. Road Dehtora

Near Shstripuram Agra –282007 ( U.P. )

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