LAW REPORTING

The doctrine of precedent

• A precedent is the making of law by the recognition and application of new rules by court
themselves in the administration of justice.
• It is not merely evidence of law but a source of it, and the courts are bound to follow the
law that is so established.
• The term judicial decision means previous decisions of the supreme courts deemed to
embody a principle which in a subsequent case raising the same , or a closely related ,
point of law, may be referred to as stating or containing the principle which may be at
least influential on the court’s decision of it, or even under the principle of stare decisis,
decisive of it.
• The doctrine of stare decisis is the doctrine of the binding force of precedent, to the
effects that in deciding a case before him a judge not only has regards to precedents but
that in certain circumstances he is bound by decided case and to accept and follow the
principles of particular precedents, whether he personally approves them or not.
• The system of precedent has been a powerful factor in the development of the
common law in England. In spite of some codification of law, it would be still correct
to say that the English law is precedent-oriented.
• A similar theory has come to prevail in India since the advent of the British system
of justice. The Englishmen who presided as judges, and who practiced as lawyers in
the courts in India, whether of the Crown or of the Company, soon started
following the English tradition and began to rely on precedents.
• Though no rule was enacted, yet through judicial decisions the doctrine of
precedent was woven into the fabric of the Indian legal system. Thus, in Mata Pd.
v. Nageshwar Sahai*, the Privy Council declared that subordinate courts were
bound by the decisions of the High Courts even if the lower courts did not agree
with the correctness of a particular decision
• 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.
• To a limited extent, statutory recognition was given to the theory of
precedent when Section 212 of the Government of India Act, 1935,
laid down that the decisions of the Privy Council and the Federal
Court would be binding upon the courts in India.
Advantages
• The doctrine makes for uniformity and certainty in the administration of law;
• It tends to promote convenience and avoid delays.
• If earlier decisions were not recognized as binding every court would have to decide
the same question over and over again on principle, which would cause delay and
increase the burden of the judges to the breaking point.
• Certainity in law, a very necessary attribute can be achieved only if the courts decide
the same point in the same manner.
• There would be confusion and conflict if the system of binding precedents is not
followed. A statute may then be interpreted differently in the districts of one and the
same State. A central statute may be held constitutional in one State and
unconstitutional in another. This is bound to be the inevitable result of permitting each
court to interpret the law according to its own light without reference to precedent
Law Reports-Supreme Courts
• It is interesting to note that after the supreme court were established in presidency towns
law reporting system came into existence
• Sir Francis Macnaghten, formerly a Judge of the Court, included certain cases in his
Considerations upon Hindu Law published in 1824. These reports from the nature of the
work were confined to cases involving questions of Hindu Law.
• Sir William Macnaghten took similiar pains in his Dissertations on Mohammedan Law
published in 1825.
• Notes of cases were contained in Longueville Clarke's edition of the Rules and Orders of the
Supreme Court published in 1829.
• These notes of cases are very valuable and relate to points of law of great interest. Notes of
cases were inserted in Smoult's 'Collection of Orders from 1774 to 1813 published in 1834.
These notes are succinct but highly useful and comprise decisions principally on points of
practice from the year 1774 to 1798.
• Some effort was then made at law reporting and a number of reports
of cases decided by the Supreme Courts have come down to us. To
name the reports pertaining to the Calcutta Supreme Court ; Morton's
Reports are the earliest and they cover a long period from 1774 to
1841.
• This collection was principally compiled from the manuscript notes of
Chief Justice, Sir R. Chambers, Justice Hyde and other judges of the
court. The cases relate almost exclusively to questions peculiar to
India.
• An attempt was made to reprint the cases in the old reports and re-issue a
new series known as the Indian Decisions (Old Series).
• This series edited by T.A. Venkaswamy Row started its publication from 1911.
• The first volume covering a period from 1774 to 1846 contained a verbatim
reprint of the cases of the Supreme Court of Calcutta reported in the
following earlier reports : Montriou's Edition of Morton's Reports,
Montriou's Reports, Fulton's Reports, Bignell's Reports and also such of the
cases in the Morton's Reports as were omitted by Montriou when he revised
them.
• The second volume of the Indian Decisions (Old Series) covers the period
from 1847 to 1859 and reprints such cases of the Calcutta Supreme Court as
had been earlier reported in George Taylor Reports, three volumes of Taylor
and Bell's Reports, Gasper's Reports, containing small cause court cases
decided by the Supreme Court of Calcutta.
• The Sadar Adalats were Company' courts and were at the apex of the
mofussil judicial system. The first printed reports of the cases decided in the
Sadar Diwani Adalat at Calcutta were started by Sir William Hay
Macnaghten, when he was the Registrar of the Adalat. The series has seven
volumes covering the period of 1791 to 1849, In 1827, a second edition of
the first two volumes of the series was reprinted.
• The second, third and a part of the fourth volumes were published by Sir
William Macnaghten; the later portion of the fourth volume contains cases
selected and prepared by C. Udney, his successor in the Registrar's office.
The cases contained in the fifth volume were reported by Sutherland.
• The decisions of the Sadar Diwani Adalat at Calcutta started to be published
monthly from 1835 onwards so that they might be useful as precedents
both to the public and the profession. These reports were known as the
Bengal Sadar Diwani Adalat Reports.
• In the branch of criminal judicature, the reports are comparatively
fewer as compared with those of the civil judicature. Only two series
of reports appear to have been printed for criminal cases. One
comprises five volumes and contains sentences of the Nizamat Adalat
at Calcutta. The first two volumes were prepared by Sir William
Macnaghten ; the three last volumes have no reporter's name. The
second series contains reports of criminal cases determined in the
Sadar Fozdari Adalat of Bombay from 1827 to 1846.
• From 1851, a monthly series of Nizamat Adalat at Calcutta began to
appear. At about the same time, monthly reports of the Madras Sadar
Fozdari Adalat began to appear. The reports of the Sadar Fozdari
Adalat of Bombay from 1827-1846 were published in 1848.
Law reporters : High Court
• The establishment of the High Courts in 1862 is a conspicuous landmark,
an event of unique importance and the precursor of the modern era of
law and justice. The High Courts brought in their wake official reports.
• The Madras High Court brought along with it the Madras High Court
Reports in eight volumes covering a period from 1862 to 1875. They
constitute a fairly well edited series ; the facts are given in full and so also
the judgments of the lower courts whenever necessary.
• Occasionally, though not always, arguments of the counsel are also given.
Similar reports came into existence for the High Courts of Bombay and
Calcutta. There are 12 volumes of the Bombay High Court Reports for the
period 1862-1875.
• The various High Court Reports were published by the Government
through the help of official reporters. Along with these official
reports, but competing with them, there came into existence some
private publications also, such as, the Weekly Reporter, Indian Jurist at
Calcutta, Madras Jurist at Madras, 2 volumes of Hyde E.
• Reports of the Calcutta High Court for 1862-63, 3 volumes of Kinealy
and Henderson Reports of the Calcutta High Court of 1881-1883, and
15 volumes of Bengal Law Reports for 1868-76 for the Calcutta High
Court.
The Indian Law Reports Act
• Sir James Fitzjames Stephen, the Law Member of the Government of India, in his minute
in 1872 on the administration of justice in British India, severely criticised the system of
law reporting prevailing in the country at the time and brought to light its manifold
drawbacks.
• These reports, he said, are of very different degrees of merit: some are very good, others
very bad indeed, consisting merely of reprints of the written judgments of judges with no
statement of the facts of the case or of the arguments of the advocates.
• It was his view that law reporting should be regarded as a branch of legislation
and that it was hardly a less important duty of the government to publish that
part of the law which is enunciated by the tribunals in their judgments than to
promulgate its legislation.
• Although the various High Court Reports were being published
through the official agency still there was no statute dealing with the
subject of law reporting.
• It was also felt to be expedient to diminish the multitude and expense
of the law reports published in British India and to improve their
quality.
• With this in view, the Indian Law Reports Act was passed in 1875 to
authorize the publication of the reports of cases decided by the High
Courts.
• According to S. 3 of the Act, "No Court shall be bound to hear cited, or shall
receive or treat as an 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 can be said to be a significant step towards the implementation of
the theory of precedent in relation to the decisions of the High Courts.
• For, putting positively, the above provision would mean that a court would be
bound to treat as binding the report of a case decided by the High Court. The
purpose of S. 3 was to diminish the quantity of law reporting and improve its
quality by regulating the indiscriminate citation of cases in the courts.
• The section was framed to constitute a monopoly, if the judges so desired, for
the official law reports. But, as will be seen below, as a measure to control
and regulate the publication of private reports, the Act has proved to be a
dead letter in practice.
• In pursuance of the Indian Law Reports Act, 1875, an official series of reports, known as
the Indian Law Reports, was started.
• Each High Court now has a series of Indian Law Reports (I.L.R.) for itself. Thus, a case
decided by the Madras High Court may be found reported in the I.L.R. Madras ; a case of
the Bombay High Court, in the I.L.R. Bombay, and so on for every High Court.
• The dates of commencement of the series, High Court-wise, are as follows :
• Bombay, Calcutta, Madras and Allahabad—1876;
• Patna—1922;
• Lucknow—1926;
• Nagpur—1936
• Punjab—1948;
• Cuttak and Assam—1949;
• Rajasthan and Mysore—1951;
• Andhra Pradesh—1954; Madhya
• Pradesh—1957;
• Kerala—1957
• Gujarat—1960;
• Delhi—1968.
Reports of the Privy Council—Federal
Court
• The Privy Council served as the highest court of appeal from India and the reports of the
Privy Council cases were thus of a fundamental value to the Indian lawyers and courts.
There have been several collections of cases decided by the Privy Council in early days.
• One such collection, which includes some cases of the Privy Council on appeal from India,
was compiled by Jerom William Knapp in three volumes covering the period from 1829 to
1836. All cases contained therein have been reprinted in the English Reports (E.R.) in the
twelfth volume.
• Another collection of the Privy Council cases is by Knapp and Moore. Then E F. Moore
brought out a collection of the Privy Council cases known as the Moore's P.C. in 15
volumes running from 1836 to 1862.
• From 1862 to 1873. Moore issued another series of reports of the Privy Council cases
known as Moore's P.C. (New Series). It contains 9 volumes; all cases contained therein
have been reproduced in volumes 15 to 17 of the English Reports.
• Moore was a practising barrister and was encouraged to collect and
publish the Indian series by the Court of Directors of the East India
Company by agreeing to purchase 300 copies of the reports prepared
by him. Thus came into existence the famous M.I.A. series.
• The reports of the cases in the series are very useful. There is a
complete history of the case from the beginning to the end. The report
of each case contains arguments of the counsel in extenso, extracts and
sometimes even full decisions of the lower courts in India.
• With the inauguration of the Federal Court of India under the
Government of India Act, 1935, an official series of reports, known as
the Federal Court Reports, was started which was converted into the
Supreme Court Reports in 1950 when the Federal Court was replaced
by the SupremeCourt.
Private Reporters
• A High Court decision is authoritative by itself and not because it is
reported. The fact that a High Court decision is reported does not add to
its authority in any way, it only makes it authentic.
• Many cases remain unreported in official publications, though some of
them are quite important as deciding significant points of law and
practice, and the fact that they are not reported in any authorised
publication does not detract from their authority in any way. They can be
cited in the courts which would give due attention to them.
• State v. Ramji : There is nothing in S. 3 to show that a certified copy of a
decision of a High Court is not to be treated as binding upon a lower court.
What is binding is the decision of the High Court and not merely a report.
• The practice of citing unreported decisions has led to the publication
of a large number of private reports. The incompleteness and
costliness of the official reports, and the delay in reporting cases
therein, make the private reports thrive.
• As reported in 1977, there were 127 private law reporters starting
from 1774. Adding other law reporters on special subjects the
number today goes beyond 300.
Problem of law reporting in India
• There is in India at the present time a plethora of law reports. Most of these
reports are published by private enterprise for commercial ends.
• The result is that the quantity of case law reported is far in excess of all
reasonable and legitimate requirements.
• Cases are reported regardless of their value as precedents, such as cases which
have either no legal principle involved, or which involve merely questions of
fact or where it is only an interlocutory matter with no final adjudication.
• There is a good deal of repetitiveness and overlapping, the same cases being
reported in several series.
• The system of law-reporting as it operates in India in the present time is neither
efficient nor expedient; it is of enormous quantity but of uncertain quality.
Online Reporting
• Websites
• Law softwares
Principles of Law reporting
1.The reporter may well omit to report cases :
• Where the decision relates only to a question of fact.
• Where the decision does not introduce any new rule of law or
materially modify a principle or rule or settle a doubtful question of
law.
• Where it is a mere case of construction of document unless there is
good reason for including them.
• Where the decision is unimportant or is of no general interest.
• Where the decision is by a single judge and it only reiterates a principle of law laid
down by a prior decision of another single judge. This is not to say that a differing
single judge's judgment should not be reported.
• Where the decision is on an interlocutory matter and the final decision on the case
is yet pending.

2.In the early days the Indian Law Reports, Madras Law Journal and Bombay Law
Reports, etc. used to incorporate arguments of the counsel also in the reports. In
recent years this practice has altogether been stopped on the plea that in the body
of the judgment, the judge refers to counsel's arguments. But it is often noticed
that the judges omit certain points raised in counsels' arguments. It is, therefore,
useful if the editorial staff of the reports pay attention to those points raised by
the counsel but not referred to in the judgment.
3. The editor and his assistants must also command the expertise to
write out the proper head-notes which must be succinct, pinpointed
and adequate to portray the salient points raised and decided in the
case. Head-notes writing is quite an art for which adequate training
should be given to the staff.
4. The editorial notes should be crisp and short and aim at throwing
more light where the judgment is silent or possibly erroneous or
contradictory to the established precedents.
5. Judgments which deal with construction of documents may be
omitted except where they state definite rules or principles of law
which are aids to construction.
6. Where the law under which a decision was delivered is repealed, if
the decision yet contains valuable pronouncement involving legal
principles which are not obsolete, such decision may be reported.
7. Minority judgment cannot be omitted as the dissenting view is
equally important.
8. Quotations in a judgment may not be omitted since without them,
the judgment may not make any sense. Classical, passages from prior
decisions and standard works often are the pivot on which the
decision rests.
9. Judgments of a single judge may not be omitted if they contain
binding principles of law.
• The Law Commission of India in this regard has in its 14th Report made
certain recommendations. It enumerated the following points :
(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 citation on one set of reports.
(3) The proper selection and reporting of judicial decisions which are the
exposition of the law is 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 :(the Advocate- General as an ex officio
member, an academic lawyer, a representative of the State Bar Council, the Bar
Association of the High Court and the Mofussil Bar. A similar council for publication
of the reports of the decisions of the Supreme Court to be formed to include among
others of representatives of the proposed All India Bar Council, and some
representatives of the State Law Reporting Councils).
(7) The Council should bring out reports which conform to the essentials of a good
report.
(8) If necessary the State should undertake to subsidies the reports of the Law
Reporting Councils for the first few years.
(9) The Council should not undertake the publication of specialized reports at least in
the early stages.