|
May 1, 1969
Law's Delays and Law Reporting
by JEditor
Cite as : (1969) 1 SCC (Jour) 7
1. The recent Shri B.N. Rao Memorial Lectures, delivered by the learned Chief Justice of India, Mr M. Hidayatullah on 'Judicial Methods' have focussed public attention on the problems of Law's delays, the utility of the principle of Stare decisis, the desirability of having an efficient system of law reporting and kindred matters.
2. One must agree with His Lordship when he says that the Judge's role is essentially legal, to deal out justice in accordance with law and not to be carried away by any extraneous considerations, based on moral or political factors.
(i) The basic reason for Law's delays
3. One wishes His Lordship had also made special reference to the adage "Brevity is the soul of life", in his dissertation on 'Judicial Methods'. Much of courts' time is wasted in allowing long-winded arguments for days and days on matters, which, however intricate and important, can nevertheless be condensed into at least a few hours of argumentation. The Judges also vie with lawyers in the race for longishness by writing ponderous and verbose judgments covering sometimes over a hundred pages! The proverbial Law's Delays are thus not only due to the fetish for granting too many adjournments on insufficient grounds, but also to the longishness of the entire proceedings wherein the lawyer and Judge contribute their good share in allowing the lengthy arguments and lengthy judgments all contributing to the great bulk of the record which in its turn makes it indeed a task for honest law reporting with ideals of crispness and brevity and speed.
4. Law's delays are sufficiently aggravated by the tendency of Judges to revel too much in case-law and verbosity. One commentator Mr G.D. Khosla recently adverted to these aspects in The Times of India and pithily said: "A Judge's time is valuable. It should be employed in deciding cases and not in arguing them at inordinate length. The law reports contain numerous instances of long and involved judgments written by Honourable Judges. Even the Judges of the Supreme Court are tempted to do this. A practice has grown up of Supreme Court Judges comprising a Bench writing individual judgments. Since the Supreme Court finally declares the law which is binding on all courts in India, it would be less confusing and more helpful if only one judgment was written as is done by the Privy Council of the United Kingdom, even if one or two judges hold a view contrary to the majority of Judges."
5. We may, however add that a dissenting view must necessarily be expressed. But if in a Bench of seven Judges four Judges concur and three disagree, there is absolutely no need for the concurring or the dissenting Judges to write separate individual judgments ranging from four to seven judgments. They can be easily restricted to two or at the most three judgments—one, the majority view, the other expressing the minority opinion and a third (which may be avoided too) giving separate reasonings in coming to the same conclusion as the majority. If this were done, the law will be more clear and precise, capable of being understood by the subordinate courts. Further, the load on law reporting will be lessened and the resulting citations before courts of these precedents will take considerably less time. Shri G.D. Khosla's criticism may be given due consideration when he says that the "Judge's desire to make a show of erudition, indulging in avoidable causistry, laying down the law for all posterity and the passion for immortality must be firmly controlled. Unfortunately judges are prone to forget that they are listners and arbiters and not talkers and practitioners of the art of verbosity".
(ii) Law reporting and Central Control
6. His Lordship the learned Chief Justice M. Hidyatullah meant well in offering a suggestion. He said "our addiction to reporting all decisions of the superior courts, has made the judicial method in India more complicated than it need be. With the existence of numerous High Courts and many tribunals all reporting their decisions, the discovery of what the law is at any given moment, is a matter of considerable difficulty and some of gamble. One is tempted to think whether reporting of cases should not be centrally controlled so that conflicts in the laws may be avoided . . . . Law Reporting should be controlled centrally so that law declared by different High Courts might become uniform and an unreported case should only be taken to decide a single controversy and not generally stating the law applicable to all cases. If this is done, the task of the judge will be immensely easier that it is today".
7. The remedy suggested by His Lordship is rather doubtful, in its utility. For one thing central control of law reporting may not be assented to by the various High Courts and the relevant State Governments, which later are now agitating more for the shedding of some of the Centre's powers on to the States. More than this, Central control of law reporting will be more time consuming adding to law's delays. As it is, the State Law Reports have a time-lag of at least three to four months for a case to be reported. If Centre's consent is to be taken there may be a further delay of one or two months. Delayed reporting is delaying the availability of precedents to the legal profession. It also in a way affects the long cherished independence of the High Courts in India, as Courts of record. If the High Court cannot decide what it should permit to report, it will indeed be ridiculous. If the Centre's machinery is the Supreme Court for controlling the High Court Reports, it would smack of an administrative revision of the High Court judgments as to what is reportable law. The suggestion is neither practical nor desirable.
(iii) The doctrine of Stare decisis
8. The doctrine of precedent appears to have been overplayed. We have to view the principle of Stare decisis and precedents in a rational and selective way. Apart from indiscriminate law reporting, a duty is cast on the courts to be meticulously selective in the application of the principle of stare desisis. No doubt, the doctrine of precedent has been established in Indian Jurisprudence1 conferring certain advantages like uniformity, certainty and avoidance of delays. But too much of a fetish for precedents in a manner, obstructs the free development of legal jurisprudence. Precedents while they may be good as general doctrine, if abused, will render law too technical, hidebound and narrow in its outlook. Even in England, the latest trend appears to be in the words of Lord Gardiner, L.C., who made a general statement in a decision of the House of Lords2: "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and while treating former decisions of this House as normally binding to depart from a previous decision when it appears necessary."
9. In India too, Judges of late are prone to discourage technical adherence to the tyranny of precedents for all conceivable positions. The trend is to recognise the fundamental and basic concepts in law as laid down in the recognised leading decisions of the highest courts of the land. Where the law is so settled, there is no need of getting into the cobweb of case-law around such a decision. Where, however, it is not so settled, then there is a need to evolve the law with certainity and authority with or without the aid of past experience in the decided cases. If the decided cases are canalised into a few selective cases, the problem of evolution of law becomes easier.
(iv) The need for revised Law Reports
10. This discussion naturally raises the question of the revision of our Law Reports as a method of reducing law's delays and Law's cost. It is because there has been no strict adherence to the rule as to what are reportable cases, we have now on hand nearly 4000 volumes of Law Reports (from 1872-1969) each volume consisting of nearly 150 to 300 cases according to the bulk of the volume. The following salient points are self revealing:
(i) Many of the cases reported in these innumerable volumes would be found obsolete and of no present day utility3;
(ii) Overlapping of reports apart, no series of Law Reports is complete in itself;
(iii) Overlapping of cases on the same points are too many;
(iv) It is impossible to own a complete set of all the Reports by any lawyer or court, for,—
(a) the cost is prohibitive,
(b) there are not enough sets available,
(c) there is no shelf-space in a lawyer's chamber or court hall to contain all the Reports. Nearly 50,000 lawyers and numerous courts in India work without a full set of Law Reports, due to prohibitive cost and want of accommodation in these days of ever-increasing population and congestion in cities or towns where courts of law function. The problem is more acute in cities where the High Courts of the land function and this is also in New Delhi where the Supreme Court of India functions.
11. It is therefore just and necessary that the average lawyer should be helped with a complete and compact set of Law Reports of India not exceeding hundred volumes at a moderate price. The set must embrace all decisions which can be positively accepted as very reliable and authoritative precedents on all subjects of law. This will also be a sure guide to all courts of justice. The modern urge of our politicians to have the entire law of the land in Hindi and other regional languages may also be in a way be facilitated by the condensation of our Law Reports from 4000 volumes to say 100 volumes or even less. Such a compact set of Reports can indeed be ever so useful—
(a) for purposes of translation of the entire law of precedents in Official Language of the Union and of the States in Bharat;
(b) for being an aid to translation of standard English treatises of law into the various languages of India;
(c) for enabling authors to write original treatises and textbooks on all legal subjects as envisaged by the recent decisions of the Union Education Commission and the Union Official Language (Legislative) Commission.
12. We would, therefore, earnestly urge that if law's delays have to be minimised the need for restricting citable precedents in courts of law appears very important. It would indeed be worthwhile if the Central Government undertakes this task right now of condensing the Reports (Supreme Court and High Courts) up till 1968 to a handy set of about 100 volumes. The cost involved is worthwhile as it will be met by a correspondingly lessening of costs involved in litigation and the Administration of Justice as a whole. Once these 100 volumes of Revised Law Reports are published, their cost even if it goes over a crore of rupees or more, can be recouped by the very sale of those volumes to lawyers and law libraries who will be only too ready to purchase them.
(v) Need for good drafting of laws
13. One other factor that is of some significance is reducing ligitation and law's delays is the need for good drafting of legislation. Much of Court's work is involved in hair-splitting arguments by the lawyer over the lacuna in the drafting legislation which lends to more than two interpretations. Apart from the need for manning the drafting section, of the law department with men of expertise and of proper calibre, it appears to be necessary to request a certain amount of restraint on the part of enthusiastic legislators who are prone to interfere in the Legislature, suggesting loosely and hastily drafted amendments to the draft Bill. The result is what emerges is an Act wholly truncated offering quite a new version of the original Bill, which verily is hailed as the lawyer's paradise!
(vi) Need for Judge of quality
14. A certain amount of restraint is also necessary on the part of the Government and the authority on whom the duty is cast in selecting and appointing Judges at various levels from the District Munsif to a Supreme Court Judge. It must be remembered that a good District Munsif of today is a potential High Court Judge of tomorrow. Direct recruitment to the high office of High Court Judge and Supreme Court Judge also requires the utmost consideration as to the calibre, capacity, intelligence, judicial poise, equanimity and legal erudition of the appointee to the exclusion of extraneous considerations as influence, caste or politics, etc. It is often said that bad judges make bad law and bad law breeds more litigation and more delay in the dispensation of justice. The 14th Report of the Law Commission of India of 1958 has adverted enough on this aspect but it is a tragedy that the Law Commission's recommendations on this score has yet to receive serious attention at Governmental level. One other significant factor is the Government's phenominal lethargy in filling up judicial vacancies or in recruiting more Judges when the huge pendency of cases justify quick recruitment. A certain desirable trend is necessary in Governmental spheres when authority will restrain itself from falling a prey to nepotism and political consideration vis-...-vis recruitment of the Judiciary.
(vii) Do's and don'ts to Judges and Lawyers
15. We have said enough of restraint is to be observed by legislators and the Government. A good deal of restraint is also due on the part of the judiciary and the legal profession if the objective of speedy dispensation of justice is to be achieved. The old adage that Justice delayed is Justice denied, is salutary. May be the critic may say hasty justice is no justice. But surely there must be a via-media where a good hearing is assured to both parties in the minimum of time and the judge pronounces a well-reasoned and not lengthy judgment without much delay.
We may usefully urge a certain number of Don'ts to the Judge and the Lawyer. To the Judge, we may say:
1. Please avoid needless adjournment of a case.
2. Please avoid lengthy judgments.
3. Please avoid verbose quoting from prior decisions, Indian or foreign.
4. Please desist from delivering a separate judgment when you can possibly concur with the judgment of your senior brother Judge.
5. Please do not make a fetish of precedents but be bold enough to state the first principles, stick to them and enunciate the law in the way needed for the dispensation of justice in a given case.
6. Though the doctrine of prospective overruling may be facinatingly handy, please avoid recourse to such a principle except in exceptional circumstances for very good and valid reasons.
To the Members of the Learned Legal Profession we may recommend:
1. Please avoid asking for adjournments unless it is absolutely necessary. The term 'absolutely' must be applied objectively and not subjectively.
2. Please shorten your cross-examination of witnesses as far as possible keeping in view your client's cause.
3. Please desist from being lengthy and verbose in your arguments.
4. Please avoid citing too many decisions by way of precedents.
We will cry a halt to these 'Don'ts' and only urge one 'Do' to both Judges and Lawyers.
"Do help in reducing Law's delays."
Honorary Editor
- Vide M.C. Setalvad "The Common Law of India" (Hamlyn Lectures, pp. 47-50). Also Law Commission's 14th Report, p. 628.
Return to Text
- London Street Tramways v. London County Council, (1966) 1 WLR 124: 1966 AER 77.
Return to Text
- For Methodology of removing the Deadwood, see Indian Law Institute's Scheme for Revised Law Reports, 1962.
Return to Text
| 
