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:

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?
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