Report No. 14
31. The Council of Law Reporting in England-Composition and objects.-
In England the law reports are being published by a Council consisting of fifteen members. It has three ex-officio members, namely, the Attorney General, the Solicitor-General and the President of the Law Society for the time being. The four Inns of Court and the Law Society nominate two members each and the persons so chosen in their turn co-opt two additional members. One representative of each of these bodies and one of the co-opted members retire biennially and are eligible for renomination. The members of the Council work in an honorary capacity.
The executive functions of the Council are discharged by a Secretary. The Council, originally a private association, was incorporated in 1870 as a company limited by guarantee. Its principal object is stated to be "the preparation and publication, in a convenient form, at a moderate price and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate courts in England". Article 4 provides that no part of the income or the property of the Association shall be applied to the benefit of any of its members.
Method of working.- The Council has a staff consisting of an editor and an assistant editor and about twenty reporters. All of them have to be Barristers and the appointment of a reporter to a particular court is subject to the approval of the senior presiding judge of that court and this approval is not a formality. Generally only Barristers experienced in law reporting are appointed reporters The reporters have to be present in the court throughout the working hours and to hear every case which they report. They are also allowed access to the shorthand notes of the Judges' stenographers and they write up their reports outside court hours.
Financial Aspects.- The Council having been established to render a service to the profession the publication of the reports is carried on, on a no profit no loss basis. The annual subscription of the law reports which has varies from time to time from 4 Guineas to £ 12-0-0 is annually adjusted to ensure that financially the reports make neither a profit nor a loss. The approximate number of subscribers to the Council's law reports is estimated at present to be 7,000.
32. Need for such a Council in India (All-India Council impossible) (State Councils necessary).-
We see no reason why a Council or Councils of Law Reporting established on a similar basis in India should not work satisfactorily and achieve the purpose we have in view. The idea of having an All-India Council for this purpose is clearly impracticable. It would be an unwieldy body and would probably cause delays. Further the High Courts frequently give decisions on the construction of State enactments which though of great local importance are of no value outside a particular State. It would, therefore, be best to establish a separate Law Reporting Council for each State.
33. Composition of Councils.-
Each Council should consist wholly of the members of the legal profession and the law reports should as in England be under 'gratuitous professional control.' The Council may consist of the Advocate-General as an ex officio member, an academic lawyer, a representative of the Bar Council, and two or three lawyers of eminence representing the Bar Association of the High Court and the mofussil Bar. The Council thus formed might be empowered to co-opt two members. The members of the Council should serve in an honorary capacity. A similar Council consisting among others of representatives of the proposed All-India Bar Council and if necessary some representative of the State Law Reporting Councils may be established for the publication of the reports of the decisions of the Supreme Court.
34. Editorial staff and its functions.-
Subject to the supervision and control of the Council, an editorial board consisting of an editor and such number of reporters, as may be necessary, all being members of the legal profession should be set up. The selection of judgments to be reported would be a matter exclusively within the competence of be editorial board.
As in India every judgment of a High Court or the Supreme Court is transcribed by a shorthand writer and signed by the Judge, it should be possible for the courts to supply the Council with a copy of the judgment as revised by the judge immediately after it is signed. The reporter would study the judgment and if he is of the view that it is worth reporting he would submit it together with the proposed head-note to the editor who would then make the final decision whether it should be reported. The reporter may also while recommending a case for being reported indicate his reasons for so recommending. If any inconsistency is found in the judgment or it appears to have been given per incuriam the editor might be authorized to refer it to the judge concerned.
35. Judges not to decide on report ability.-
In our view the judges should have no voice in deciding whether a case should or should not be reported. In several States there is in vogue the practice of judges marking their judgments "A.F.R." i.e., approved for reporting. This is a very unwholesome practice and should be stopped. A judge is too often inclined to a generous view of the importance of his own judgments and rarely hesitant to decide that it should be reported. Not infrequently judgments tend to become lengthy and somewhat pedantic because the judges think of the judgments finding a place in the law reports.
A number of witnesses with experience of law reporting have told us that it is a habit with some judges to send for reporters and ask them to include their judgments in those selected for being reported. The practice is also apt to cause delays. As far back as 1894 the Chief Reporter of the I.L.R. Calcutta series complained that delays in the reporting of cases were sometimes occasioned by the interference of judges with the discretion of reporters. Sometimes this practice enables the judge to decide that a judgment delivered by him should not be reported. This is obviously undesirable and was strongly commented upon by important witnesses who gave evidence before us.
It was emphasized that the possibility that the judgment might be published in a professional journal will tend to make judges more careful; prevent them from basing their decisions on doubtful propositions of law and generally act as a check against caprice or prejudice affecting their judgments. As has been observed by the Committee on Law Reporting in England. "The decisions of the Court must be open for publication, discussion and criticism. Nor can a judge by any means deny the right to publish as law that which he has decided to be law."1
1. Report of the Lord Chancellor's Committee on Law Reporting, para. 16.
The practice of leaving the selection of judgments to be reported entirely to an editorial board without reference to the judges seems to have worked satisfactorily in England and there is no reason why in India the selection cases to be reported should not be left exclusively to a properly constituted editorial board. It should equally be the function of the editor to prepare proper head-notes of the cases to be reported.
36. Need for reporting arguments.-
There has been a tendency recently in the Indian law reports to omit arguments advanced by counsel. This appears to us to deprive the report of a great deal of its value. It is not easy to appreciate or to evaluate a judgment as an authority unless one is made aware of the points that were urged before the court and the authorities cited before it. In fact so experienced an editor of law reports as Sir Frederick Pollock has said that no report of a case is worth while unless it contains the arguments advanced in the case.
37. Expedition in printing.-
We have already noticed above the delays in printing arising out of the reports being printed in the Government presses. The Council will therefore have to arrange for the printing of the reports in private presses. The appearance of the report within a very reasonable time after the delivery of the judgment is, as stated earlier, an essential of a good law report, Mr. G. W. Hemming, a former editor of the Law Reports in England gave the following estimate1 of the time necessary for preparing and hearing out a good report:-
1. Law Quarterly Review , Vol I, p. 292.
Reporters and editor
Judicial revision, fully
Time necessary for publication.- It makes a normal average interval of 11 weeks between the delivery of the judgment and the publication of the report. With us all judgments are reduced to writing and revised before a reporter can get copies for the purpose of reporting. That would shorten the period by three weeks and with the increased and modern printing facilities now available it should be possible for reports to be published within a period of two months from the date of the delivery of the judgment. In fact some private journals are at present able to publish the reports in a time shorter than two months.
38. Series running at a loss (Finances of Law Reporting Councils).-
The figures furnished to us by the State Governments indicate that year by year most of these Governments make substantial losses in the publication of the official series. On the contrary we have evidence to show that substantial gains are being made by some publishers of the private series of reports and that others are being run so that the revenue equals the expenditure. It may be that in the initial stages the Councils of Law Reporting may have to be subsidized by the States. This will mean no additional expenditure to the State Governments as the losses now being incurred in the official series will cease by the closing down of the official series and these amounts may be paid to the Councils by way of subsidy.
However, such assistance should not have to continue for more than a few years within which the Councils should be able to run the law reports as in England on a no profit and no loss basis without being assisted by Government. As in England the subscription could be adjusted from time to time so as to correspond with the cost of publication. It may be pointed out that the Council should, apart from the revenue arising from the subscriptions, be able to secure a certain amount of advertising revenue.
39. Specialised reports.-
We do not think that the Councils should undertake the publication of specialised reports, at any rate in the early stages of their existence. Perhaps the publication of specialised reports could best be left to private agencies as in England.
40. Reports of Councils to serve as models.-
The law reports published by the Councils all over the country containing a proper selection of cases with adequate statements of facts and arguments of counsel and published quickly will serve as models for private publications. If they are reasonably priced as they should be they will probably cut out some reports now published by private agencies. One may notice in this connection that in England the number of general private law reports has recently tended to decrease.
Though we were at the commencement inclined to favour the suggestion that restrictions should be imposed on the publication of private report or that citation in courts should be restricted to a particular series, we feel bound to reject it. We trust, however, that the publication of a proper series of law reports by a body like the Council of Law Reporting will go a considerable way in mitigating the existing evil. Once such law reports are published the courts may well insist on the observance of a rule that the case to be cited should only be from the reports published by the Councils of Law Reporting if it is reported in that series.