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History of Law Reporting In India An overview

History of Law Reporting In India. An overview

Prologue:
According to theory of Precedent and the theory of stare decisis, the law pronounced by the Superior Court of the Country is followed by its subordinate Courts. A judicial precedent of the Supreme Court of India is authoritative in relation to all the High Courts and subordinate Courts in India. The reporting of the precedents of the superior court is called Law Reporting.

Objective:
The object of law reporting is to give detailed precedent case-laws to the legal practitioners, judges of all the courts. The statutes cannot explain all matters in all walks of life. Still there shall be some lacuna. Such lacunas are filled up by the judges of the superior courts in some extra-ordinary cases.

Examples: Ashby v. White, Donoghue v. Stevenson, Ryland’s v. Fletcher. These case-laws serve the subsequent years needs in legal fields.

Law Reporting In Pre-British Era India: The theories of Precedent, Stare decisis, Ratio decidendi, Obiter Dicta, etc. have been developed in Britain. Step by step the British judicial system was introduced in India by East India Company and later by the Crown. As part and parcel of the British judicial system, the theories of precedent, stare decisis etc. were also introduced in India.

Supreme Court at Calcutta:

The Supreme Court at Calcutta was established in 1774. At that time law reporting did not take a correct shape. It was irregular, unorganized and un-systematical. Private persons took active part in law reporting. The Government did not take any active steps in laws reporting. Achari in his book ‘Codification in British India’ Wrote ‘The Judges of the old Supreme Court made no special effort to secure good reporting. Almost from the earliest institutions of the Supreme Courts, the decisions of those were left to the unassisted efforts of private reporters.

Reports were no doubt published, some of them good, some of them of an inferior quality and there were periods for which no reports at all existed and during which many valuable decisions passed altogether unreported’. Sir Francis Macnaghten compiled some cases pertaining to Hindu cases and published them in 1824 under the name of ‘Considerations upon Hindu Law.’ Probably it was the first law reporting in India. Later Sir William Macnaghten compiled some cases pertaining to Muslim cases and published them in 1825 under the name of  Principles and Precedents of Mohammedans Law.  Later several persons took the similar steps.

Some of the names to be mentioned worthwhile were Morton's Reports (from 1774 to 1841); Montriou's Reports, 1846; Boulnois' Reports 1853-59; Gasper's Commercial cases 1851- 1860, George Taylor's Reports of Cases decided from January, 1847 to December, 1848, etc. In the similar way, the cases of the Supreme Court at Bombay were also compiled and reported by some private persons.

Sadar Diwani Adalats:

The First Law Commission suggested for the proper codification and law reporting of the cases decided previously by Sadar Diwani Adalats. Sir William Hay Macnaghten, Registrar of the Adalat compiled seven volumes of cases from 1791 to 1849, pertaining to the Sadar Diwani Adalat at Calcutta. Some more efforts were made to publish the subsequent cases. Act XII of 1843 has a suggestion to the Company that the judgments in English of Sadar Adalats should be appropriately recorded and be published monthly. However, this Suggestion was not successfully implemented. Borradaile collected some cases pertaining to the Sadar Diwani Adalat at Bombay in two volumes in 1825. There were five volumes of criminal cases belonging to the Nizamat Adalat at Calcutta compiled by Sir William Macnaghten.

High Courts:

The Indian High Courts Act, 1861 made the provisions for the establishments of the High Courts in various provinces. The judgments of the High Court got recognition in quantity and quality. The Madras High Court published the cases in eight volumes covering from 1862 to 1875. In similar way, the Bombay and Calcutta High Courts also published well edited case-laws in 12 to 15 volumes respectively. Other High Courts also published their edited case-Laws in volumes. The private publications started law reporting, viz. Weekly Reporter, Indian Jurist at Calcutta, Hay's Reports, Marcshall's Reports, Coryton's Reports, Bourke's Reports, etc. at Calcutta, Madras Jurist at Madras. They contained very valuable judgments of the High Courts.

The Indian Law Reports Act 1875

There were a large number of private publications entered in law, created complexity, Competition and manifold drawbacks. Some of the cases reported were good and genuine, but majority of the cases reported contained nothing new law points but repetition. To charge high, the private publication accumulated every case and began to sell in bounded volumes at the rate of Rs. 250/- per one year. Like this, they began to exploit the legal practitioners. Some of the law reporters were not giving case facts, and simply giving Judgments.

They did not mention what the actual new points were delivered by the judgments and how they would act as precedents in future. Their motto was profit only. Sir James Fitzjames Stephen, Law Member of the Government of India and Sir Hobhouse Law Member were unhappy with the trend of law reporting. They wrote the Government and explaining the situation. As a result; the India Law Reports Act, 1875 was enacted.

This Act was intended to control the indiscriminate citation of the cases in the courts. Section 3 of this Act runs as follows:
No Court shall be bound to hear cited, or shall receive or treat as authority binding on it, the report of any case decided by any of the said high courts on or after the said day other than a report published under the authority of the Governor-General-in-Council. This Act was objected to prevent the indiscriminate citation of unofficial reports. Its purpose was to diminish the quantity of law reporting and to improve its quality.

However this Act was severely criticized by the Bar and intellectual persons. Further this Act was applicable only to the High Courts. It did not mention about the decisions of the Privy Council, Federal Court and the Supreme Courts. The Law Commission in its XIV Report described the Act of I875 as  dead letter  and wrote.

The Indian Law Reports Act will have to be repealed by reason perhaps of the delays in the publication of the Indian Law Reports series, the provision 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. However, as a result of the Indian Law Reports Act, 1875, all the High Courts in India began to publish their official Reports from 1876 onwards. Bombay, Calcutta, Madras, Allahabad, Patna, Nagpur, Punjab, Delhi, etc. High Courts published yearly Law Reports regularly.

Non-official Reports:

The Act of 1875 could not suppress non-official reports. The main reasons was, delay in official reporting, incompleteness, costliness, rigid bureaucracy, etc effected on official reporting. Due to these reasons, non-official reports continued to be in existence and were giving high competition to the official reports. The non-official Reports began to get fame in the Bar and Bench. Some of these are worthwhile to mention, viz. The Madras Law Journal, Allahabad Law Journal, the All India Reporter (AIR), Madras Law Journal (MLJ), etc. There are some regional laws reporting institutions also started such as Andhra Law Times, Kerala Law Times, Nagpur Law Times, Patna Law Times, Madras Week Notes, etc.

Privy Council:

The important judgments of the Privy Council were reported in 77 Volumes from 1872 to 1950.

Federal Court:

It was started in 1935 and continued till 1949. The Federal Court Report publishes all important judgments given by the Federal Court.

Law Reporting after Independence:

After independence, the law reporting institutions increase in number. Now there are more than one Law reporting Journal for every High Court and also for the Supreme Court of India.

Supreme Court of India:

In place of the Federal Court and Privy Council, the Supreme Court of India was established at Delhi in 1950. There are several reporters reporting the Supreme Court judgments such as All India Reporter, the Madras Law Journal, Supreme Court Journal (SCJ), Supreme Court weekly Reports, etc.

Merits of Law Reporting:

Law Reporting is very useful to the Bar and Bench. Every Advocate seeks its help and prepares his case according to the precedent case laws. For the Courts also it is easier to decide the case on similar facts and points of law. Thus Law Reporting is very useful in courts for the easy and early disposal of the cases.

Demerits of Law Reporting:

  1. Commercial Nature: The private law reporting institutions generally have commercial nature and aspects. This commercial nature kills the originality of the nature of the judgments.
     
  2. Unhealthy Competition: Between the private law reporters, there is highly unhealthy competition.
     
  3. Vast Cases: To increase the size of volumes, the private publications give a large number of cases, which are in fact necessary. The cases decided on the similar facts and on the similar points of law have been repeated. This consumes too much time and huge money of the Advocate and Judges.
     
  4. Poor Quality: There is high possibility of poor quality in the private reporting. Some of the Law Reporters contain the interlocutory matters with no final adjudication. Repetitiveness and overlapping etc. are common.
     
  5. Official Reports: The Official reports are inadequate and are having short-comings. They are very expensive and very slow. Bureaucracy kills the official reports. They are not reported regularly and punctually. They are most costly. Therefore, the Advocates tend to purchase unofficial reports and rely upon A.l.R. etc. The Law Commission observed, if the publication of this series (A.I.R) under government auspices is based on the duty of the Government to make the law appearing in the decisions of the courts available as soon after the decisions as possible, to the courts, the professionals and the member of the public, the gross delays in the publication of the series indicates a grievous neglect of the duty. But for the existence of non official law reports, the judges and the lawyers practicing in the court would have been for months without any guidance as to the law laid down by the courts. The Indian Law Reports Series as now run and published may well cease to exist without any detriment to anybody except perhaps to those employed in its publication.

Conclusion:
In spite of its demerits, law reporting in India is progressing day by day. It Serves everybody and well experienced Advocates, and well eminent judges. The Madras High Court observed in various cases that ‘The All India Reporter (AIR 1951) requires…Rationalization, Simplification and Coordination.

We find sometimes duplication and triplication, the same Judgment being reported in two or three different law journals. Great care should be exercised before any case is reported by which subordinate courts and priority should be bound untill it is modified or overruled’.

The Law Commission observed as follows, ‘a large number of cases laying down no legal principle but deciding questions of fact and others reporting well accepted and tried law find a place in these reports’. Lastly, the Law Commission suggested taking appropriate steps for the improvement of official law reporting. At the same time, it also recommended to repeal the Law Reports Act, 1875 so that official and unofficial law reporting shall work with healthy competition and serve the basic needs of the Bench and Bar.

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