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Report No. 14

41. Solution: Better trained Bar and Judiciary.-

The real solution to the problem of indiscriminate reporting lies in our view in a better trained Bar and a robust judiciary capable of dealing with matters on principle and dispensing with artificial aids in reaching a decision. Not infrequently when counsel is arguing a question of principle or the construction of a section judges even in superior courts ask whether counsel is in a position to support his argument by the authority of decided cases. The judgments of some superior courts are full of citations of cases, sometimes a large number supporting the same proposition and sometimes one notices very little discussion of the principle involved.

One may compare with these judgments the judgments of the Judicial Committee of the Privy Council which were not only brief but referred to decided cases sparingly and only on appropriate occasions. Thus in a great measure the evil of irrelevant and multitudinous citation is a matter which can be controlled by proper judicial personnel.

42. Repeal of Act XVIII of 1875.-

In view of the recommendations made by us the Indian Law Reports Act (XVIII of 1875) will have to be the repealed. As pointed out above by reason perhaps of the delays in the publication of the Indian Law Reports series the provisions of section 3 have not been observed by the courts. Indeed the judgments of all courts including those of the Judicial Committee of the Privy Council and the Supreme Court have referred to decisions published in private series as authoritative and binding. Further our recommendations involve the cessation of the publication of the Indian Law Report series itself.

43. Preparations of indexes of judgments.-

It has been suggested that steps should be taken for the preparation and publication of indexes of all judgments of the High Courts and of the Supreme Court whether reported or not and that such indexes should be made available freely to the public at a moderate cost. It has further been suggested that individuals should be enabled to get copies of all judgments which they can trace through the index for publication or for any other purpose. Professor Goodhart in a dissentient report to the Report of the Lord Chancellor's Committee on Law Reporting made a similar suggestion.1 Professor Goodhart's view has the support of no less an authority than Professor Holdsworth.2

The main objections which weighed with the majority of Professor Goodhart's colleagues in rejecting his recommendation was that its acceptance would involve extra expenditure to the Government in appointing official stenographers for taking down and transcribing judgments and that the consideration and revision of such judgments by the judge would be incompatible with speedy publication and would also impose an additional burden on the judges.

These considerations have no application to India where unlike in England every judgment of the High Courts and of the Supreme Court is reduced into writing by official shorthand writers and is finally revised and signed by the judge concerned. We understand that in some of the High Courts in India the suggested system prevails in a modified form and judgments of these High Courts are indexed by law graduates on the staff of the court whenever they decide any question of law and that these indexes are sometimes used by the reporters of the several law journals for the purpose of selecting case suitable for reporting.

We, therefore, recommend that such an index be maintained by all the High Courts and the Supreme Court so that lawyers and private persons could have access to these indexes and be able to apply for certified copies of such judgments as they may need for the purposes of the cases they are interested in.

1. Report of the Lord Chancellor's Committee on Law Reporting.

2. Law Reporting in the 19th and 20th centuries Anglo-Ammerican Legal History, Series No. 5, 1941, cited by C. K. Allen. Law in making, p. 351.

44. Conclusions.-

We now set out our conclusions under this head as follows:-

(1) The present system of treating judicial precedents as binding and citing them in Court serves a very valuable purpose and should be continued.

(2) It is neither feasible nor desirable to restrict the publication of reports or to confer the monopoly of citations on one set of reports.

(3) The proper selection and reporting of judicial decisions which are the exposition of the law ex non scripto is a public duty.

(4) The State has failed to discharge this duty properly.

(5) This responsibility should, therefore, be undertaken by the legal profession and a Law Reporting Council should be established for this purpose in each State and also for the Supreme Court.

(6) The composition of the Council should be as indicated in paragraph 33 ante.

(7) The Council should bring out reports which conform to the essentials of a good report set out in paragraph 25 ante and serve as models of good reporting. Short notes of cases may be made available before the regular reports are published.

(8) The reports published by the Council should also contain the argument of Counsel.

(9) These reports should be printed at private presses and so priced that the Councils function on a no loss and no profit basis.

(10)If, necessary the State should undertake to subsidise the reports of the Law Reporting Councils for the first few years.

(11) The Councils should not undertake the publication of specialised reports at least in the early stages.

(12) The courts should make a rule that cases reported in the Law Reports published by the Councils of Law Reporting should be cited only from that series.

(13) The Judges should have no say in deciding whether a case should or should not be reported.



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