Thursday, January 14, 2010

Delhi High Court RTI judgment

The Delhi High Court RTI judgment (holding that the CJI's office comes under the purview of the RTI Act) is available at:

http://www.docstoc.com/docs/22007185/APS12012010-LPA5012009

It is interesting that this, and all other judgments, start with the judges signing off on whether the judgment can be reported in local papers, reporters and digests. I wonder why judges have this discretion, especially since the requirement of giving public reasons is a very (or only?) important mechanism for judicial accountability in India.

This also raises other issues.

1)On what basis do judges decide whether a case should be reportable or not?

2)If a judge asks for a case to not be reported, what weight does her opinion carry? In EBC v. D B Modak, the SC recognized that in its publication "Supreme Court Cases" EBC "publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India." The Court does not appreciate/deprecate this practice, merely recognizes it.

3)Should lawyers be allowed to argue -and judges cite- unreported cases in their judgments? A quick search of supreme court cases reveals that this is routinely done. The only statutory law I could find on this point is the Indian Law Reports Act, 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 decided by any High Court for a State, other than a report published under the authority of any State Government." According to this provision at least, unreported cases cannot be used by, or in, Courts of law.

4)Article 141 of the Constitution provides that "The law declared by the Supreme Court shall be binding on all courts within the territory of India." Does the "law declared" include unreported judgments? If it does (and the use of unreported judgments by Courts indicates this) then in my opinion, this violates all requirements of public notification before a norm becomes a law.

5) If an unreported case is to be cited, should it have binding, or merely pursuasive value?

6 comments:

Sandeep said...

My understanding is that not to be reported means not to be reported in the official journal. So for supreme court cases, it will not be reported in the SCR.
Sandeep

Chaitanya Safaya said...
This comment has been removed by the author.
pratik said...

interesting point of law.. esp s. 3 of the Indian Law Reports Act 1875. There seems to be a great deal of confusion as far as case laws of different High Courts on this point are concerned.. as of now there seems to be no decision of the Supreme Court bang on the point!

the argument for not following unreported decisions is probably to prevent the tendency amongst litigating lawyers to take out obscure unreported judgments all of a sudden in the court to establish a point to the disadvantage of the opponent .. if the Court goes by such decisions, then lawyers would deliberately suppress important judgments to use them later.. this would lead to an assymetrical distribution of legal information which is not at all desirable in a democracy and for overall development of the law.. [see(1986) 88 Bom LR 308]

the argument for following unreported decisions is that it is the decision of the Court that is binding, not the report [see AIR 1944 Nag 44].. moreover if a certified copy of the same is produced, then there is a presumption of its genuiness u/s. 79 and 84 of the Indian Evidence Act.. further the Law Commission Report of 1984 also recommended that the Indian Law Report Act be repealed and the reasons are given therein..

Now I have some doubts:

1. Has the Indian Law Reports Act 1875 been repealed?

2. What is meant by 'unreported judgment'?

a. Unpublished judgment (cant be as unreported SC judgments are reported in a special volume)

b. Not publised in the official report

c. Mentioned by the judge not to be reported

3. Which law (statute, rule etc.)prescribes the format that a judge has the discretion to mention whether a judgment will be reported or not?

Will be glad if someone can answer these queries.. Thanks for raising this issue... nd sorry for writing so much :)

Aparna Chandra said...

thanks for the comments. Sandeep, in the RTI judgment for example, the judge had to sign off on whether the decision could be reported in local newspapers, reporters and digests. That is much wider than just reporting in the SCR. Also, it is ironic considering that it is a judgment on the Right to Information!

Pratik, thanks for the information. To the best of my knowledge, the ILR Act has not been repealed. Given the wide nature of the discretion (including reporting in local newspapers) it appears that asking for a judgment to be unreported means more than asking for it to not be reported in the official reporter. It would also not make sense to say that it is permissible to report in unofficial reporters but not in the official one.

I am not sure where the Courts derive their powers to determine whether the judgment should be reported. I am guessing it is some internal practice rule, but I have not been able to locate it.

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Concious about conscience said...

I found recently that many judges in delhi high court are from delhi university........however i didn't find manu from JNU. Should that matter..?