MAY 22, 2024

By Vijay Kumar

JUST look at this judgement of the Supreme Court issued last week. Right at the top, it is mentioned that it is non reportable. And we reported it as 2024-TIOL-49-SC-CUS. Have we reported something we should not have? We never do that. Then what is this mystery of non-reportable orders?

Let's journey back about a century and a half. The Indian Law Reports Act of 1875 sprang forth, ushering in the era of reportable and non-reportable judgments The Repealing and Amending Act, 2016 , repealed the 1875 Act. But courts continue to retain the distinction between reportable and non-reportable judgements.

Section 3 of the Indian Law Reports Act, 1875

No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, 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.

The First Law Commission had noticed this and observed,

"The enormous quantity and the uncertain quality of Indian Law Reports" was the subject-matter of comment by Sir Frederick Pollock as far back as 1931. He stated that "If things continue in this present disastrous course, the Indian Reports will in a few years really be a wilderness". The Chief Justice of India in June 1956 quoted Sir Pollock and said: -

"A period of 25 years has elapsed since then, but every lawyer in India will have to admit that no improvement has occurred in law reporting in India, but on the other hand one is near wilderness, if not actually in it".

In its answer to the Questionnaire issued by the First Law Commission, the Madras Bar Council stated: -

The Council strongly feels that the law reports are too many (official and non-official), that it makes the task of the legal practitioners difficult and confusing. There must be only one authorised law report from which only citations may be made and it may be made the statutory report.

The Law Commission observed: -

Yet the importance of accurate and permanent reports of judicial decisions is and always has been obvious. Today whatever the reasons may be, the theory of the binding force of precedent is firmly established. It is today the accepted duty of a Judge, whatever his own opinion may be to follow the decision of any Court recognised as competent to bind him. It is his duty to administer the law which that Court has declared.

It is well settled that the courts subordinate to a High Court are bound by its decisions and it is not open to them to refuse to follow the law as interpreted by that High Court. The High Courts have made this clear in a number of decisions and have gone so far as to characterise refusal on the part of subordinate courts to follow their decisions, as being tantamount to insubordination.

In Commissioner, HR & CE vs E.K. Sethuramalingam Pillai , a Lower Court refused to rely on a typed copy of a judgment of the Madras High Court and the High Court held,

The learned Sub Judge is thoroughly wrong in not relying on the unreported judgment of this Court and the reasoning given by him is not tenable. It is unfortunate that the Presiding Officer of the cadre of Principal Subordinate Judge has not understood the scope of the precedents laid down by the High Court. The Subordinate Judge is bound to follow the judgments of the High Court, whether they are reported or not.

But in K.V. Bhundia vs State of Gujarat , the Gujarat High Court observed: -

Mr. Supehia has also relied on the unreported judgment of this court reproduced in the matter of Karsanbhai D. Parmar vs State of Gujarat & Ors reproduced in 1986 GLT 87. Firstly, the learned judge (N.H. Bhatt, J) has made the said judgment unreportable and therefore in my view the same cannot be cited as a precedent.

If in the course of an argument a certified copy of a judgment of the Supreme Court or High Court is produced it would have to be treated as a binding decision notwithstanding the fact that it has not been reported.

Could counsel say to a litigant seeking his advice "This is the law according to a judgment delivered by the Supreme Court. But as it has not been reported and your case comes up for hearing tomorrow it may be possible that the High Court may decide against you. If, however, your case is heard, after a few months when the decision is reported it is possible that the case may be decided in your favour"?

A passage from a judgment of the Nagpur High Court:

a single judge of the High Court is bound by the decision of the Division Bench, even though the decision is not reported. From the point of view of the judgment becoming a judicial precedent what is material is the decision in the case; it is the decision and not the opinion of the Court nor the report of it that, makes the precedent. It is the decision which establishes the precedent and the report but serves as evidence of it.

On 17th March 2022, the Minister of Law and Justice told the Rajya Sabha:

Publication of Law Reports is a matter which falls within the purview of the judiciary. Reportable decisions of the Supreme Court are published in Supreme Court Reports (SCR). SCR is the official journal of reportable Supreme Court decisions, which is published under the authority of the Supreme Court of India. In respect of High Courts, as per information received, while some are publishing Law Reports like the High Courts of Sikkim, Punjab & Haryana, Chhattisgarh, Kerala, Madhya Pradesh, Uttarakhand, Karnataka, Calcutta, Andhra Pradesh and Allahabad; certain High Courts like Manipur, Meghalaya, Patna, Guwahati, Jharkhand, Tripura, Telangana and Bombay are not publishing any Law Report. In accordance with the recommendation of the Law Reporting Council, Delhi High Court dated 21.4.2015, the publication of Law Reports (Delhi Series) has been discontinued by the High Court of Delhi since the judgments of this Court reportable as well as non-reportable are already published on the official website of the Delhi High Court.

In Eastern Book Company & Ors vs D.B. Modak & Anr on 12 December 2007, the Supreme Court observed,

One of the well-known publications of appellant No. 1 Eastern Book Company is the law report Supreme Court Cases (SCC). The appellant publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India.

The Indian Law Reports Act of 1875 which was an attempt at creating a partial monopoly in favour of official Reports, was strongly opposed. Sir George Campbell who was then Lieutenant-Governor of Bengal said: 'If you put into the hands of anyone authority the power of deciding which of these decisions should be treated as authoritative and which are to be rejected and snuffed out, you give that authority an enormous power over the Superior Courts of the country: you make him, in fact, Judge over the Judges.' Notwithstanding this Act, unofficial reports, published in this country, were and are cited before the superior courts and relied upon by them in their judgments.

Constitutional expert M.P Jain explained:

Law reporting started in India with the creation of the Supreme Court in 1774. In the beginning, there was no organised system of law reporting. Early reporting was a private enterprise; only sporadic individual attempts at reporting were made by the practising lawyers or judges and the underlying purpose was 'to prevent much contrariety of judgment and to produce uniformity of decision' on matters on which a conflict of decisions would be disastrous.

Most of the old reports became too difficult to procure as they went out of print in course of time. The decisions contained in these old reports however were constantly referred to by the Privy Council and the High Courts but these reports became rare and difficult to procure. They were not available even in the libraries of great lawyers and so the cases in these reports were not generally known and, therefore, reference to them and their citation in courts became very difficult.

A High Court decision is authoritative by itself and not because it is reported. The fact that a High Court decision is reported does not add to its authority in any way. Many cases remain unreported in official publications, though some of them are quite important as deciding significant points of law and practice, and the fact that they are not reported in any authorised publication does not detract from their authority in any way. They can be cited in the courts which would give due attention to them.

There is in India a plethora of law reports. Most of these reports are published by private enterprise for commercial ends. The result is that the quantity of case law reported is far in excess of all reasonable and legitimate requirements. Cases are reported regardless of their value as precedents, such as cases which have either no legal principle involved, or which involve merely questions of fact or where it is only an interlocutory matter with no final adjudication.

The system of law-reporting as it operates in India is neither efficient nor expedient; it is of enormous quantity but of uncertain quality. A view has been expressed from time to time that numerous precedents and a large number of reports impede the administration of justice.

As we look back, the reporting of judgements has come full circle. What started as a purely private initiative by advocates and judges, was attempted to be monopolised by the courts and the government but is now almost wholly dependent on private law journals including the effective law reporting by online platforms.

The point is un-reportable judgements can be reported and cited, while all reportable orders need not necessarily be reported. It is irrelevant whether an order is reportable or not.

Once I told a Tribunal Member that his judgements were very valuable – we were buying them!

Until next week