(Un)Reported Decisions: A historical perspective

The library of an experienced advocate or a well-established law firm is often stacked with an expensive collection of books including ITR, SCC, AIR, MLJ, etc. Amidst all the tomes, one would invariably come across an old tattered volume of a law report whose spine has an inscription of a year which usually predates even the year of birth of our parents.

The law reports encapsulate how the courts have shaped up through their decisions on various issues of importance. They trace and capture the judiciary’s journey through time, and in that sense, for an active practitioner of law, law reports are (or at least till recently, were) the most precious resource.

Initial attempts at Legal Reporting

Let’s take a little walk through the history of reporting of decisions of the courts in India. The practise of reporting decisions through law journals has thrived ever since the establishment of the legal system in British India. The initiative was taken by lawyers and judges in furtherance to the theory of precedent.

With some sense of certainty, one can trace back the reporting of decisions to the establishment of the Supreme Court at Calcutta in 1774. Professor MP Jain wrote in (24) Journal of Indian Law Institute (1982) that Morton's Reports are the earliest pertaining to the Calcutta Supreme Court, covering a long period from 1774 to 1841. This collection was principally compiled from the manuscript notes of Chief Justice Sir R Chambers and Justice Hyde.

In 1853, Sir Erskine Perry CJ published a collection of cases 'illustrative of Oriental life, and the application of English law to India', decided by the Calcutta Supreme Court. The decisions of the Privy Council on appeal from India were originally inserted in the reports of Knapp and Moore.

Considering the obscurity of the old law reports, an attempt was made in 1911 to reprint the old cases in a new series of reports with additional features. This was called Indian Decisions (Old Series), which covered a period from 1774 to 1846. On similar lines, with special permission of the government, verbatim reproduction of decisions was undertaken for decisions rendered from 1876 to 1900. This was called Indian Decisions (New Series).

The man behind both these endeavours was one TA Venkaswamy Row, sole proprietor of Law Printing House at Madras (as recorded in Southern India: Its History, People, Commerce, and Industrial Resources, edited by Arnold Wright).

All the above mentioned attempts at reporting the decisions of various courts were undertaken by enterprising advocates and judges. Hence, the attempts at reporting the decisions were not uniform and professional. A legal academician rightly stated that the decisions in these collections were not easily referred to; the indices appended were insufficient and the mode in which the cases themselves were reported often made it difficult to seize their full bearing.

The plan of adding marginal notes to these collections had been long delayed and was not even generally followed. Reporters did not make any distinction between cases worth reporting and those not worth reporting. In many cases, no new point was decided; they mainly answered questions of fact between two or more parties.

Sir James F Stephen: The Act of 1875 and monopolisation of legal reporting

The history of Sir James F Stephen is intertwined with the history of codification of laws of India. As is well known, Sir Stephen was responsible for drafting of Indian Contract Act, 1872, the Indian Evidence Act, 1872 and also the Criminal Procedure Code, 1872. However, as is not so well known, it seems that Sir Stephen was on a mission of some sort in the year 1872. During this year, with so much on his plate, he also criticised the system of law reporting prevailing in the country. This was in his capacity as a legislative member of the Governor General’s Council.

Thus, with this background came a tectonic shift, and the Indian Law Reports Act, 1875 was enacted. Hence, apart from the ‘fantastic four’ enactments, Sir James F Stephen is indeed responsible for another law in India. Interestingly, he became a judge of the Calcutta High Court in 1879 and would have seen his own decisions being reported in accordance with the law he envisaged.

Precursor to reported and unreported decisions

The Indian Law Reports Act mandated that no court was bound to hear a decision except those reported under the authority of the Governor General in Counsel. This perhaps led to the birth of the almost ubiquitous Indian Law Reports (ILR). Shortly thereafter, every High Court began having its official ILR - ILR Bom, ILR All, ILR Del, ILR Cal, ILR Mad, etc.

This is perhaps the reason one finds many decisions carry a separate segment/paragraph where the judge pronounces whether the decision is reported or unreported. It seems that the same is in deference to the practise that has been followed under the Indian Law Reports Act, 1875, wherein the judges would order a decision to be reportable in the official law report if a substantial and new point of law was discussed.

Lord Diplock, in a famous decision in Roberts Petroleum v. Bernard Kenny, directed that unreported decisions which are accessible to computer retrieval systems are not to be cited before the House of Lords.

Legal reporting and unreported decisions: The modern approach

Of course, things have changed now for primarily the following reasons:

• Delay and omissions in the ILRs/other official reports (like SCR) to report important cases;

• Low quality of reporting;

• Expensive pricing for that quality;

• The fact that a decision by a court is a binding precedent irrespective of it being reported or not;

• The Act only gave authenticity to a reported copy, but didn't say binding decisions shall not be adhered to.

The above is fortified by the observations of the 14^th Report of the Law Commission of India that it is neither feasible nor desirable to restrict the publication of reports or to confer the monopoly of citation on one set of reports. Vide the Repealing and Amending Act, 2016, the Act of 1875 has been given a decent burial.

The way our legal reporting framework works (especially for law reports and journals) is quite different from other countries. It varies in terms of responsibilities of editors of official law reports, timelines to be adhered, quality of value-added material like headnotes, ratios, analysis, etc.

The minutes of the 2^nd International Symposium on Official Law Reporting provides for a riveting read of how the official reporter of the Supreme Court of United States functioned in a timely manner to release the official reported decision of the 2000 Presidential Election case (Bush v. Gore) when the case was argued on Monday and the Court’s opinions deciding the case were issued on Tuesday.

This is where the private law journals have stolen a march over the official law reports. One still notices a decision being reported in the SCC journal and the same being reported in SCR with a delay of month or two.

Conclusion

As we look back in time, we notice that the reporting of decisions 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 wholly dependent on private law journals. One can add to this the effective law reporting by online platforms.

With the advent of online reporting of decisions which can easily be researched and referred to, even the private law reporters may opt for a fully digital experience and version. Online databases like SCCOnline and Manupatra are already favourites with practitioners and the judges are not concerned with the reported status of the decision.

The only downside to this is that even orders pertaining to purely factual aspects are also covered in these reports, giving rise to unnecessary citations and innovative submissions.

Lord Denning realised the futility of differentiating between reported and unreported decisions when he famously wrote that:

“Every decision is binding no matter whether it is reported in the regular series of Law Reports, or is unreported. Once you have the transcript, you can cite it as of equal authority to a reported decision. It behoves every counsel or solicitor to find, if he can, a case – reported or unreported – which will help him advise or win his case.”

And yet, like for all the nostalgia we cling on to, judges still tip their hats to this question of the past - reported or unreported?

The author is a dually qualified professional. He is a graduate of Campus Law Centre, Faculty of Law, University of Delhi and a Fellow Chartered Accountant. He currently practices law in the courts of Delhi. He can be reached at mail@deepakjoshi.in .