Report No. 14
28. Law Reports
1. Critics of the existing system.-
"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 what a great poet in his haste called the English ones (even as they were a century ago) a wilderness". Sir Maurice Gwyer, the first Chief Justice of India expressed1 his "cordial agreement" with the critics of the multiplying law reports in India in 1944. Recently the present Chief Justice of India has in June 1956 quoted with approval Sir Frederick Pollock's observation and said2:-
1. Preface to Pollock & Mulla Indian Contract Act, 7th Edn.
2. Preface to Mulla's Transfer of Property Act, 4th Edn.
"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".
A suggested remedy.- In its answer to the Questionnaire issued by the Commission the Madras Bar Council stated as follows:-
"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 views expressed by the Council can be said to be fairly representative of the views expressed by associations of lawyers generally and by individual lawyers in the answers given to our Questionnaire and in the course of the evidence recorded by us.
The importance of the issue raised and the almost unanimous view expressed against the multiplicity of law reports and their prejudicial effect on the administration of justice necessitate a detailed examination of the whole question.
2. Judicial decisions-A source of law.-
It has been said with reference to England that "It is a commonplace to lawyers at least that the law of this country consists substantially of legislative enactments and judicial decisions. The former are made known to the public in the most solemn form, printed at the public expense and preserved under conditions which ensure that they shall be permanently and authentically recorded.
With the latter it always has been and still is far otherwise. 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, if not unreservedly, at least only with some such reservation as that a decision need not be followed if it appears to have been given per incuriam e.g., by reason of a relevant statute not having been called to the attention of the Court. 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."1
1. Report of the Lord Chancellor's Committee on Law Reporting, 1940, para. 4.
3. The position in India: Article 141 of the Constitution-Supreme Court decisions binding.-
The position in India is not very different.
So far as judgments of the Supreme Court are concerned Article 141 of the Constitution provides that "the law declared by the Supreme Court shall be binding on all courts within the territory of India." Article 141 re-enunciates the principle contained in section 212 of the Government of India Act, 1935, which laid down that the decisions of the Privy Council and the Federal Court shall be binding upon Indian courts.
Article 141 of the Constitution and section 212 of the Government of India Act merely gave legislative sanction to what had long been the recognised practice of the British Indian Courts. The position had been well established by the decisions of the Judicial Committee of the Privy Council. It decided that "It is not open to the courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applied to the facts of the particular case. Nor is it open to them, whether on account of 'judicial dignity' or otherwise, to question its decision on any particular issue of fact.1
1. Mata Prasad v. Nageshar Sahaj, 52 IA 398 (417).
4. Authority of High Court decisions.-
The decisions of the High Courts have not been invested with the authority of law by any enactment. But 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 decisions1 and have gone so far as to characterise refusal on the part of subordinate courts to follow their decisions, as being tantamount to insubordination.
1. Ramaswamy v. Chandra Kotayya, AIR 1925 Mad 261 (262); Bankey Lal v. Batra, AIR 1963 All 747.
It is also well settled that a single Judge of a High Court is bound by the decisions of a Division Bench of that Court and a Division Bench by the decision of a Full Bench or of a former Division Bench except that the latter Division Bench has the right to refer the case to a Full Bench for reconsideration of the earlier decision in the event of its disagreeing with the view of the former Division Bench.1
1. Chandulal v. Babulal, AIR 1952 MB 171; M. Subrayudu v. State, AIR. 1955 A ndh 87; Dr. K.C. Nambiar v. State of Madras, AIR 1953 Mad 351.
However, the decision of a High Court has only persuasive authority outside the territory subject to its jurisdiction.
5. Precedents binding.-
Thus the binding force of precedents has been firmly established in Indian jurisprudence. Judgments delivered by the superior courts are as much the law of the country as legislative enactments.
6. Alternative system.-
We desired to give careful consideration to the question whether the present system of relying on decided cases as precedents laying down the law could at this stage of our judicial history be departed from. Accordingly we endeavoured to elicit suggestions as to the introduction of an alternative system.
7. Position on the continent.-
Critics of the present system of relying upon, decided cases as precedents have drawn our attention to the system obtaining on the Continent of Europe, in France and some other countries. The position in France has been set out by a French academic lawyer of distribution in the following words:-
"In France, the judicial precedent does not, ipso facto bind either the tribunals which established it nor the lower courts; and the Court of Cassation itself retains the right to go back on its own decisions. The courts of appeal may oppose a doctrine proclaimed by the Court of Cassation, and this opposition has sometimes led to a change of opinion on the part of the higher court. The practice of the courts does not become a source of the law until it is definitely fixed by the repetition of precedents which are in agreement on a single point."1
1. Professor Lambert of the University of Lyons in the Yale Law Journal, 1929, Vol. XXXIX, pp. 1 and 14.
Every judgment of the superior courts in France is rendered in writing and after being signed by the Judges is entered in a Register. The judgments so recorded and registered are accessible to all the members of the legal profession and also the public and it is open to anyone to make from the register a selection of decisions for publication. Many well-known collections of decisions have been prepared by individual lawyers and published. But there are no official publications.
A similar practice in regard to the recording of judgments and publishing selections from them is followed in some other European countries.
The selections so published are used by lawyers and courts for their information.
It would thus appear that even in the Continental systems precedents are used and referred to and though decided cases may not themselves lay down the law or be a source of law, the practice of the court may be definitely fixed by a repetition of precedents which are in agreement on a single point.
8. Precedents in a codified system of law.-
It has been suggested that the position in India is different from that in England and that of the United States, as a large portion of our law has been codified and that in a system of codified laws judicial precedents should not have the force of law or be capable of adding to the provisions of a statute. In this connection it may be recalled that the first Law Commission of 1834 decided on a codification of laws in the hope that illustrations to the sections in a codified law would serve the purpose of decided cases and do away with the necessity of citing any precedents.
Notwithstanding their codes, the countries on the Continent have found it necessary and useful to compile digest of decided cases. The hope entertained by the first Law Commission that the use of precedents may be unnecessary in India has not been fulfilled. For over a century Indian courts have functioned like the British and the American courts relying on precedents and treating them as authoritative.
9. Value of precedents.-
It is undeniable that the system of regarding decided cases as binding authorities and a source of law has undoubted advantages.
It makes for uniformity and certainty in the administration of law. It also tends to convenience and the avoidance of delays. If earlier decisions of courts were not recognised as binding every court would have to decide the same question over and over again on principle causing prolonged arguments and consequent delay. As has been pointed out by Justice Cardoze "The labour of Judges would be increased to the breaking point if every past decision could be reopened in every case".1
1. Nature of the Judicial Process, p. 144.
Certainty is most important in the realm of law and it can be obtained only if courts consistently decide the same points in the same manner. If decisions of superior courts or even of the same court are not to be regarded as binding on the Judges it will be impossible for individuals to regulate their future conduct relying on any particular view of the law. The law will cease to be certain and men will not know where they stand as regards their legal rights and obligations. In the words of Lord Eldon. "It is better that the law should be certain than that every judge should speculate upon improvements in it."1
1. Sheldon v. Goodrick, 8 Vic 497.
One can easily picture the confusion and conflict which would arise if we departed from the system of relying on precedents as binding. A Tenancy Act or a Debt Relief Act would be interpreted differently in different districts of the same State. Similarly a statute may be declared constitutional in one State and void in another. An act might be a crime in one State and not be punishable on a different interpretation of the same law in another. Such would be the inevitable consequences of permitting each court to interpret the law according to its own lights without reference to precedents.
10. Present system of precedents should continue.-
The answers to the Questionnaire received by us and the evidence given before us have almost unanimously been in favour of the maintenance of the present system of treating precedents as binding. Even if it were possible to go back upon this system at the present stage of our judicial development we would on principle emphatically disapprove of any such change.