Guest Post by Vivek Anandh, an advocate practicing in Delhi.
The common law as a legal system derives its legitimacy from its reliance upon the established tradition called precedents or in other words called as the principle of stare decisis. The tradition of this system as a whole derives its legitimacy from its reliance upon the precedents. It is seen as a steadying force that steers it clear of the much-resented contradiction and towards a safer predictable course that which can be acted upon safely. This helped to a great extent for the evolution of the common law system in its past. However, if seen from a practical standpoint in the present situation, the contradictions that the voluminous precedents create are apparent. It is proving to be difficult for anyone to have a unified understanding of the widely complex jurisprudence that the flow of time would have created. This perfectly reflects the situation that is prevalent in India, considering the fact that even the highest of court churns out hundreds of judgments every year with the volumes of court reports burgeoning with each passing year. Predictably, there have been instances of judgments with contradictory reasoning being delivered even by the Supreme Court simultaneously, creating a jurisprudential naught. In fact, they also report inconsequential orders that are peculiar to special facts of the case resulting in they too becoming a part of the ever-increasing volumes of precedent. In the time past, in order to avoid such jurisprudential conflicts the salutary rule was to report only those judgments that establishes any principle of law which can guide the decision making process in the future to ensure a consistent approach. Even now the judgments of both Supreme Court and High Courts contains two questions
- Whether to be reported in law reports or not?
- Whether to be shown to the press or not?
Even if the judge answers both the questions in negative, the reports continue to report those judgments, making it an altogether futile exercise. Senior Advocate Fali S. Nariman notes in his book (India’s Legal System Can it be Saved? @Pg:143) that the judges themselves does not exercise their discretion judiciously “abetted by overweening judicial vanity” in deciding whether to report a judgment or not.
With increasing emphasis on the freedom of press and transparency in judicial process, the exercise has long lost its purpose. Practically too there is nothing that can stop open access to the judgments of the courts from being accessed. With websites like India Kanoon and search engines like Google using ‘crawlers’ to periodically search for data and add to their index, the availability of the judgments is not merely confined to the law reports, unlike the earlier times. In fact, citing of unreported judgments has become a fairly routine happening in the courts by the counsels. A judgment of the Gujarat High Court furthers this by stating that merely publishing on the website would not amount to same being reported, as the word “reportable” used for judgment is in relation to it being reported in law reporter. Even otherwise, the law reports do not discriminate between a ‘reportable’ judgment and ‘non-reportable judgment’
The Governing Statute:
Statutorily, the only act that seems to have been enacted to regulate the reporting of judgments is the
Section 3 of the Act states that ‘No Court shall be bound to hear cited, or Authority shall receive or treat as an authority binding on it, given only to the report of any case decided by any of the said High Courts on or after the said day, other than a report published under the authority of the Governor General in Council’. This effectively created a monopoly of legal knowledge to the official reports. However, in practice this statute remained a dead letter for unofficial reports continued to be cited and relied upon by the courts. The 14th Law Commission Report chronicles the history of law reporting in India in a lucid manner and other attempts in the form of a bill, which failed to become a law in the end, to regulate legal reports. The existence of this dead letter law was first taken note of in the 96th Law Commission Report (1984), particularly noting the anomaly created by the provision if, for example, “… a single judge, relying on section 3, refuses to look at an unofficial ruling of a division bench” creating an “unsatisfactory” position where there would be a division bench ruling “disregarded” by a single judge. This is clearly entrenched in Article 141 of the Constitution of India under which “law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India”.
The report ultimately recommended for repealing the act. Subsequently, the Commission on Review of Administrative Laws (P.C.Jain Commission) and 249th Report of Law Commission of India on ‘Obsolete Laws: Warranting Immediate Repeal (Second Interim Report)’ also recommended for its repeal. It was not until very recently through the Repealing and Amending Act, 2016 that the act stands repealed.
What to Report or What not to Report?
With the Indian Law Reports Act, 1875, the reporting conundrum has also been put to rest. However, there are lot many yet to be resolved questions that lingers.
- In the interests of lessening the volume of precedents, whether it is possible by way of judicial discipline to enforce a rule to only accept reportable judgments as a binding precedent or not?
- Can the inherent conflict that would inevitably arise between the so un-reported judgments with binding provisions like Article 141 be reconciled in any manner?
- If yes, what are the parameters upon which a judge must decide and exercise his discretion on whether a judgment is to be reported or not?
Though it has become a settled principle that the open access to judgments cannot be curbed in any manner not to infringe upon other concerns such as freedom of press, it yet possible to evolve a form of restraint both from the bar and the bench to use this now obsolete way to use reportable and un-reportable judgments. In United States of America legal scholars come together to study all the past precedents and bring out coherent and concisely the general principles that emerge out of them for future use, called as ‘restatement of law’. This is used as a secondary source, but it relegates all the past precedents before such a restatement to the history. With no such exercise or the prospect of it happening in India, it would do good to evolve some self made discipline to find a cure for the ‘case law diarrhea’ that plagues our legal system.