Report No. 14
11. Restrictions on publication and citation and possible.-
If the system of precedents being regarded as binding is to prevail it must inevitably follow that no suggestions as to the restriction on the publication of reports or the conferring of the right of exclusive citation on an authorised series of reports can arise. These suggestions ignore the fundamental fact that the law in a particular matter is what it is not because it has been so reported to be but because it has been so laid down in the decision of a Judge. In England it is "the privilege, if not the duty of a member of the Bar to inform the court whether as Counsel engaged in the case or as amicus curiae, of a relevant decision whether it has been reported or not. So it is the duty of a Judge to follow the decision of a competent court whether reported or not: it may well be that there has not been time to report it".1 The same is the position in India.
1. Report of the Lord Chancellor's Committee on Law Reporting, para. 15.
The Constitutional position.- One might take the case of a decision of the Supreme Court which has not been reported in any series. Under Article 141 of the Constitution the moment the decision is pronounced, the law declared in that decision becomes binding on all courts in the territory of India. The fact whether the judgment is reported or not would make no difference to its binding nature. The publication of that judgment in the reports of a few months later does not in any manner alter its character or attach any sanctity to it.
It is the fact that a judge of a superior court has decided the law as laid down in the decision which gives it its binding nature and its being reported or not is a mere accident which cannot alter its character.
The same considerations apply to such judgments of the High Court as are binding.
12. Fact of reporting irrelevant (Report only evidence of decision).-It necessarily follows that if in the course of an argument a certified copy of a judgment of the Supreme Court or the 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"?
Thus, if the fact of a judgment being reported or not is irrelevant to its authority how could it be urged that judgments reported in a particular series, say, the authorised series should alone have binding authority and not others? Is a text book writer to ignore decisions which have not been reported in the authorised series and state the law only in accordance with what is to be found in that series?
In this connection we may recall a passage in a judgment delivered by Justice Niyogi of the Nagpur High Court:
"I agree with Bose, J. that 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. Hence an unreported case may be cited as an authority if the actual decision can be shown from the original sources It is the decision which establishes the precedent and the report but serves as evidence of it."1
1. Vinayak Shamrao v. Moreshwar, AIR 1944 Nag 44 (46).
13. Reliance by Supreme Court on unreported decisions.-
The Supreme Court has itself on more than one occasion referred to its unreported judgments or those of the Privy Council. A recent example is to be found in a case decided on the 13th of February, 1957 in which the court refers to an unreported judgment of its own decided in 1952 as being exactly in point and covering the question at issue in the case.1
1. Baijnath Tripathi V. State of Bhopal, A.I.R. 1957 Supreme Court 494 at 496.
14. Unauthorised reports evidence of decisions.-
If it is inconsistent, with the doctrine of precedents being binding to ban the citation of a report, by the production of a certified copy of a judgment, there would be no justification for preventing a law report even though unauthorised being read out in court. The only difference between the two is that the correctness of the certified copy is authenticated whereas that of the other is not officially vouched for. It, therefore, follows that the only reason for refusing to treat a decision reported in an unauthorised publication as an authority can be that the report is not authenticated and may not be correct. If, however, there is no reason to doubt the correctness of the report the court would be bound in principle to allow the judgment in an unauthorised report to be cited for the same reason that it permits a certified copy to be cited.
Turning now to decisions which do not have a binding authority on the courts in which they are referred to but only persuasive authority the position is no different. The value of such decisions lies solely in their reasoning and that reasoning is no way affected by the fact that the report of the decision is an authorised one or otherwise provided the report is an accurate report.
15. Section 38, Evidence Act-Unofficial foreign reports relevant.-
Section 38 of the Indian Evidence Act provides inter alia that when the court has to form an opinion as to a law of any country, any report of a ruling of the court of such a country contained in a book purporting to be a report of such rulings is relevant. It is clear that this provision would enable unofficial reports of foreign rulings to be cited where the court has to form an opinion as to a question of foreign law. It would, indeed, be curious if while permitting foreign unofficial reports to be cited, the courts were compelled to refuse to look at unofficial Indian reports.
16. Foreign reports necessary.-
Our courts have always permitted the citation of cases decided in Britain, Australia, Canada and the United States. These decisions have in our courts only persuasive authority. If we are not to deny the assistance of this persuasive authority to our courts would it be right to prevent our courts from having the benefit of the decisions of Indian High Courts merely because they do not happen to be reported in an official series?
17. Prohibition of citation: impact.-
Nor would such a prohibition even if imposed be workable in practice. It would be open to counsel to read parts of a decision in an unofficial report as a part of his argument.
18. Suggestion for a1 monopoly.-
The suggestion of creating by legislative interference a monopoly in law reporting in order to counteract the evils supposed to arise from a multiplicity of law reports is not a new one. In England a proposal was made in 1864 by the late Joshua Williams "that the right of exclusive citation in the courts should be given either to the Law Reports as at present established or to some single series of reports established under some sort of official control."2
Writing some years after the incorporation of the Council of Law Reporting in England in 1885, Lord Lindley expressed the view that "Until we have one publication of judicial decisions which, and which alone, shall be received and acted upon as authoritative by our numerous tribunals, all reforms in Law Reporting must be regarded as transitional and incomplete."1 He stated further that "A multiplicity of law reports is a great evil. The evil was once intolerable; it may become so again; whether it will or will not depend on the profession and on the Council" (the Council of Law Reporting). "Let us hope it never will. If it does, a great effort will have failed and its failure will prove the necessity for legislative interference and for a monopoly of law reporting."3
1. Report of the Lord Chancellor's Committee on Law Reporting, para. 15.
2. Law Quarterly Review, Vol. I, p. 137
3. Law Quarterly Review, Vol. I, p. 149.
19. The Indian Law Reports Act.-
The first attempt in India to restrict the citation of unofficial reports would appear to have been made by the Law Reports Act, 1875 (Act XVIII of 1875) which provides that no court shall be bound to hear cited or shall receive or treat as an authority binding on it the report of any case other than a report published under the authority of the Government. The enactment of this Act which can be described as an attempt at creating a partial monopoly in favour of official reports was strongly opposed. Sir George Campbell, the then Lt. Governor of Bengal expressed his opposition in these words:
"If you put into the hands of any one 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,"1 Notwithstanding the Act, unofficial reports published in India have for many years been cited before the Judicial Committee of the Privy Council and the Indian High Courts and the Supreme Court and have been referred to and relief on in their judgments. The Act has indeed been a dead letter.
1. Abstract of the Proceedings of the Council of the Governor-General of India assembled for the purpose of making Laws and Regulations, 1874, Vol. XIII, p. 80.
20. Private members Bill of 1927.-
In 1927 a non-official Bill was introduced in the Central Legislative Assembly containing a proposal to ban the citation of non-official law reports in the Indian courts. The proposal met with strong opposition from distinguished lawyers like Dr. M. R. Jayakar and Sir Hari Singh Gour in the Assembly.1 The Bill never became law.
1. The Use of Judicial Precedent by P. Ramanatha Aiyar, pp. 276-281.