Law and Legal Reports

At least two things overwhelm a client while in law chambers - the lawyer’s professional fee and the unending racks of law journals. If the client appears to be a paymaster, the lawyer would extend the cordiality of allowing him to ask at least one question, and that would invariably be, ‘do you read all these books?’

To a client, the argot and gobbledygook of law courts and lawyers is so perplexing, that he conjures up a hallowed image of the contents of the law reports. They contain the ‘open sesame’ of his inextricable problems. A mofussil lawyer’s lore has it that he would begin the briefing session scowling, “If you want me to only peruse your papers and give an opinion, it will cost you a 1000, but if you want me to refer to those journals too, that would cost you a 2000!” Without a blink the client would settle for a 2000.

Origins

The common law of England has come to stay and with it the doctrines of precedent and stare decisis and with them the reports of the decisions of the Courts. The legal report, as distinct from a formal record of the court that was first known to be preserved by the Royal Courts inscribed on sheepskin, is a product of the thirteenth century and developed hand in hand with the legal profession. The inception and changes in Law reporting reflected the course of growth of the authority of precedent as law reports form the backbone for the operation of the doctrine of precedent.

Yearbooks, the precursors of modern Law reports, are stated to have appeared as early as 1285, were in vogue until 1535, and were private reports. They were not authorized by the Crown as believed until recently. Abridgments of the Yearbooks, the precursors of modern Digests of case law, came into existence during the reign of Edward II (1307 – 1327). Yearbooks are said to be nowhere near our present day journals and they were too varied in both form and content, more in the nature of expositions of points of pleadings jotted down in the courts and later compiled by students and junior members of the Bar for commercial purposes. They were reports of the interaction between the judges and the counsel. The credibility of the Yearbooks has taken a beating with researchers finding, for instance, that the Trial of the Earl of Huntingdon for treason reported in the Yearbook for the first year of Henry IV (1399) is a work of fiction and the earl was actually executed summarily. [See Leading Cases in the Common Law, A.W. Brian Simpson, Clarendon Press, Oxford, 1995)

Reporting of law as exposited by Courts is said to have begun in the fifteenth century with the growth of doctrine of precedent. Burrow’s Reports (1756–72) paved the way for modern reporting of judge made law adopting the division of a report into head note and facts of the judgment of the Court. Earlier Judges followed decisions made before their days as much as they knew them and could recall them from memory and the phenomenon of citation came much later. The citation of earlier decisions by counsel is believed to have taken shape with Term Reports of 1785. [See Potter’s Historical Introduction to English Law, Fourth Edition, A.K.R. Kiralfy, 1958, Universal Law Publishing Co. Pvt. Ltd, 1999. English Legal History, V.D. Kulshreshtha, Eastern Book Company, 1999].

Indian Law Reports

Did we have law reports in ancient times in India? The scant history to which we have access says no. we have lost our indigenous law and the consensual system of resolution of disputes by non-governmental tribunals, believed to have existed until they were intervened by the Muslim rulers. That amalgam too did not last and was superimposed with English Law that decisively began with introduction in Bengal of the English system of courts in 1772 by Warren Hastings. Writing on ancient legal system of India and law reports, Justice Rama Jois, says “.. in the absence of an established court of record and the reporting of decided cases to serve as law of precedents as also an amending machinery, there was necessity to assimilate into the legal system the accepted positions in law either by interpretation placed by the court or by custom and usage accepted by the society. The commentators fulfilled these requirements admirably. The resultant position was, while the Dharmashastras and Smritis remained the basic law, the commentaries can be said to have embodied the law as in force at the time when the respective commentaries were written”. [See Legal and Constitutional History of India, Justice M. Rama Jois, Universal Law Publishing Co., 1984].

While it is not surprising that recorded decisions of courts were not part of the ancient Indian legal system, the theory that Dharmashastras and Smritis formed the basic law and that commentaries formed the law as applied to specific times is debatable. These notions set into motion by European Sanskritists notwithstanding, the Dharmashastras and Smritis are doubted as mere theoretical constructs of the elite and purely literary works. The Dharmashastras were not law at all and unconcerned with the crowds of inferior castes and Dravidians. Custom was the overwhelming law. (See The Classical Law of India, Robert Lingat, Oxford University Press, 1998.) This is only to say that the notion of Hindu Community does not have an ancient ancestry. (See Interpreting Early India, Romila Thapar, Oxford University Press, 1992). The whole Indian Sub continent being a single state having the Dharmashastras and Smritis as the law are enticing fictions and suffice to state that a system of resolution of disputes that would necessitate law reports was non-existent.

The indispensable importance of law report in modern India needs no emphasis. Delving into the nature of the law journals being published by the All India Reporter Limited, the Supreme Court, in A.I.R. Karamchari Sangh case, stated that judgments of the Supreme Court and the High Courts reported in law reports are source of law, the former being judicial precedents binding on all courts throughout India and the latter being judicial precedents binding on all courts within their territory and having persuasive value before courts outside their territory and are almost as important as statutes, rules and regulations passed by the competent legislatures and other bodies. [See All India Reporter Karamchari Sangh and others v. All India Reporter Limited and others, 1988 (Supp) SCC 472].

Copyright in Judgments

Another interesting decision that touches upon the nature of the law reports is that of the Delhi High Court. In a detailed judgment dated 17.01.2001, in suits filed by Eastern Book Company (EBC) against ‘Grand Jurix’ and ‘The Laws’, alleging that they exact copies of their Supreme Court CD Rom, Justice S.K.Mahajan held that, under Section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or judicial authority in India is a Government work. Under Section 52(q), the reproduction of publication of any judgment or order of a Court, Tribunal or other judicial authority shall not constitute infringement of copyright of the Government in these works. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act.

The judge further explained that the orders and judgments of the Court are in the public domain and anyone can publish them. Not only that, the decision being a Government work, no copyright exists in these orders and judgments and no one can claim copyright in these judgments and orders of the Court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists. There being no copyright in the text of the judgments, it was said that EBC cannot claim copyright in its head-notes. A genuine abridgment of judgments of the Court is an original work and can be the subject matter of infringement of a copy right even if the amount of originality is very small. However, in case the head-notes are verbatim extracts from the judgments of the Courts, there is no amount of skill or labour involved in preparing the head-notes and no person can claim a copyright. Re-production of either a few sentences from the judgments of the Court or the entire paragraph or the joining of some of the sentences of the judgment in the head-note cannot be said to be either a creative or original work or abridgment of the judgment of the Court. It is, therefore, clear that mere re-production of a part of the judgment in the head-note is not an abridgment of the judgment and no copyright can be claimed in it.

Aggrieved EBC appealed to a Division Bench and a judgment in its favour was delivered holding that the head-notes, foot notes and commentary were creative work and so EBC had copy right in the same. The text of the judgments however cannot be subject to copyright. The matter finally culminated in a decision of the Supreme Court. [See (2008) 1 SCC 1] EBC argued that copyright subsists in SCC as a law report as-a-whole based cumulatively and compendiously on all the substantial contributions of skill, labour and capital in the creation of various parts of SCC, that is, head notes, the editorial notes, foot notes, the version of the copy-edited text of judgments as published, the Selection of cases, the Sequence and Arrangement of cases, the indexes, tables of cases, that gives its character as a work as-a-whole. Midway, the respondents conceded that the head-notes and foot notes were copyright material. The Supreme Court after elaborate discussion directed that not only the foot notes and editorial notes but the paragraphs made by EBC in their copy-edited version with internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like “concurring”, “partly dissenting”, etc. on the basis of reported judgments in SCC cannot also be copied. Thus except the copy-edited text of the judgment nothing else is free from copy right. There was originality and creativity in the head notes, foot notes and editorial notes. These together with paragraph numbering and internal references imparted to the judgments some quality and character which the original judgment does not possess. Thus except the raw text of the judgments as provided by the registry of the Courts, anything that enhances the quality seems to have been brought into the ambit of copyright.

Mushrooming of Journals

Since there is no copyright in the text of the judgment several entrepreneurs and enthusiasts tend to publish law reports for commercial purposes at the cost of quality as what matters is not just the report but the head notes, commentary and editorial notes which are a rarity in several of the print and on-line Indian journals. Result is a plethora of journals.

Chief Justice M. Hidayatullah said that addiction to reporting all decisions of the superior courts rendered judicial method more complicated and discovering what the law is at any given moment is a matter of considerable difficulty and a gamble. He instead suggested a centrally controlled system of reporting. Differing from the view the editor of the EBC however suggested different alternatives. Beginning from 1872 to 1969, he said, we have 4000 volumes of reported judgments each of 150 to 300 pages and that they could be revised into a set of 100 volumes. He went further and even suggested to the Courts to avoid lengthy judgments, not to deliver separate judgments when concurring with a senior judge and not to make a fetish of precedent but to state first principles. These comments were from a private enterprise, which started in 1969 with the espoused aim of saving us from the official series, which were ‘too expensive and too delayed’. One of the avowed objectives was to publish SCC at a moderate price within the reach of legal profession at all levels. [See (1969) 1 SCC 3, 7]

Flying in the face of the above suggestions of EBC, we have SCC, the most bulky of the law reports and the highest priced and sometimes even slow, compared to journals once derisively called quickies like SCALE, Judgments Today, Supreme Today etc. The private enterprises publishing reports have no copyright over the decisions and so no royalty need to be paid. The reports do not contain even a semblance of any commentary. There are scant editorial notes. Legal reporting is yet to become a lucrative employment area warranting roping in services of the highly qualified and talented editorial staff. Still the reports are priced very high and the reasons are not far to seek.

Digitalisation

The Report of the National Commission to Review the Working of the Constitution of India, accepting that a satisfactory justice delivery system is not possible without access to law journals, among others, recommended that a Digital Legal Information System in the country shall be set up. [see Para 7.17, Chapter 7, Volume 1, Report of the National Commission to Review the Working of the Constitution, Universal Law Publishing Co. Pvt. Ltd., 2002]. JUDIS, the judgment retrieval system put in place by the National Informatics Centre is already a step towards it. However JUDIS is in an awful stage reporting judgments without editing, citation or comments and so of little use for professional purposes. Now it has judgments of the Supreme Court of India as reported in SCR and several High Courts and head notes are limited to a few.

Exorbitant Prices

Though private entrepreneurs have taken the lead even here, the costs are exorbitant. We boast of barging into a digital era and having the largest number of software professionals. In USA, the epitome of private enterprise, the entire text of 20,380 judgments of the Supreme Court from 1885 along with leading cases from 1793 to 1884, the Constitution, Federalist papers etc. are available on a single CD-ROM that can be run on any number of computers for American Dollars equivalent to approximately INR 10,000. Here, the SCC online with judgments of half a century are being sold at eight times the price and further comes with a hardware key limiting its usage to a single computer.

This is a result of the State leaving us to face the vagaries of market forces in the field of law reporting. The neglect of the State in publishing law reports is a flagrant violation of Section 3 of the Indian Law Reports Act, 1875. This statute having 4 Sections and amended at least 7 times until date, imposes a restriction, through Section 3, that the High Court may not hear, leave alone accept as binding precedent, any decision cited before it but not finding place in the reports published under the authority of the State Government.

Law reports are part of the justice administrative system and the more they grow in bulk, number and price, the more will be the confusion and lesser will be the access to commoners among the legal fraternity and concomitantly the still lesser will be access to justice. A not so famous quote reads that growth for the sake of growth is the ideology of the cancer cell.