“Highly relevant from historical and academic perspective”, Justice BV Nagarathana on the release of SCC Pre 69 volumes

Address delivered by Hon’ble Mrs. Justice B.V. Nagarathna, Judge, Supreme Court of India at the Release ceremony of the  of Supreme Court Cases Pre 69 Series, at the Claridges Hotel, New Delhi on 10th August 2022.


A very good evening,

At the outset, I thank the entire team of Eastern Book Company (EBC), Supreme Court Cases (SCC) and Sri Surendra Malik for inviting me to be a special guest of honour to this event to launch the throwback series of Supreme Court Cases (SCC), for the years 1950-1954.

I congratulate the entire team of SCC for their endeavors towards conceptualizing and making concerted efforts towards bringing out this series, which relates to a critical period in the nation’s history as also of the august institution, that is, the Supreme Court of India, in its formative years.

Supreme Court Cases (SCC) is one of the most widely cited law reports in the country today. With a view to develop a reliable source of reference, SCC, at present, has compiled all judgments rendered by the Supreme Court, from the year 1969. During my interaction with Sri Surendra Malik, I inquired as to why 1969 was chosen as the starting year of the series. I learnt that it was in 1969 that Sri Surendra Malik graduated in law.Thereafter, he has pursued his mission of curating and making accessible, authentic and reliable legal information, by bringing out legal commentaries, and the Supreme Court Cases- the law reports series, through the Eastern Book Company.

Precedent, being one of the sources of law, the principle of binding nature of a precedent on a judge, is an essential feature of the common law system. It conceives that general principles of law are derived from particular facts or instances of a large number of decided cases. This gives rise to the proposition that individual decisions contain in themselves, future authority.

The system of precedent has been a powerful source of development of the common law in England. A precedent-oriented theory has come to prevail in India also.

Article 141 of the Constitution of India has cemented the theory of precedent by declaring that the law declared by the Supreme Court shall be binding on all courts within India.[Reaffirming the Constitutional mandate contained in Article 141, a Constitution Bench of the Apex Court in Rupa Ashok Hurra vs. Ashok Hurra,[1] declared that “a precedent is the law of the land for itself and for all Courts, Tribunals and authorities in India.”

The principle upon which rests the authority of judicial decisions, as precedents in subsequent litigations, is embodied in the maxim stare decisis et non quieta movere, which means to abide by precedents and to not disturb settled points. However, in the Indian context, the principle of stare decisis is not an inexorable command. In the words of Chief Justice Frankfurter of the American Supreme Court, the doctrine of stare decisis is not “an imprisonment of reason.”[2]

According to Justice Aharaon Barak, former President of the Supreme Court of Israel while precedent is not immutable, “departures from precedent should be the exception, not the rule.”He has adopted the philosophy of Justice Douglas of the Supreme Court of the United States of America that,“A judiciary that discloses what it is doing and why it does it will breed understanding. And confidence based on understanding is more enduring than confidence based on awe.” That when the scales are balanced, we should stick to precedent.

The theory of precedent brings in its wake the system of law reporting, as its necessary concomitant. In my view, the doctrine of the binding force of precedent can fully emerge in any judicial system, only when there is a settled judicial hierarchy, coupled with accurate law reporting.

Further, it would not be an exaggeration to state that development of the law depends as much on what is not reported, as on what is reported. I therefore endorse and applaud the decision of SCC and other similar comprehensive law reporting agencies, which report every decision to which the provider has access to a  judgment is nonetheless an authority even if it has not been reported. Otherwise, the question of whether such a judgment could or could not be so regarded would depend upon the mere whim of the reporter. [Law reporting today is an exercise which enables one to undertake an evolutionary foray into judicial philosophy, as found in the pronouncements of the third pillar of democracy.

Nowadays, online legal databases are ubiquitous. They have many advantages over their hard-copy counterparts: they are comprehensive, rapidly downloadable and some of them even operate as free services.

Law reporting in India, started with the establishment of the Supreme Court in Calcutta, in the year 1774. In pursuance of the Indian Law Reports Act, 1875, an official series of reports known as the Indian Law Reports (I.L.R)was started whereby, each High Court had an I.L.R series for itself.

The practice of citing decisions from Reports has led to the publication of a large number of private reports. One of the most popular private publications is the All India Reporter, Nagpur which stated publication in 1922 but brought out back volumes from 1914.

Mr Sumain Malik, Director, EBC welcomes Justice BV Nagarathna in the presence of Mr Surendra Malik, Chief Editor, Supreme Court Cases

The relevance of the throwback series that is being launched today, more specifically, the SCC Law Reports for the years 1950 to 1954, is to be understood and analyzed in light of the fact that this series will cover decisions rendered in the first decade after India achieved freedom from colonial subjugation.

The period between the years 1947 and 1957 is often referred to as the age of “issue formation.” That is, the period when issues of national priorities were in the formative stage. In 1950, the Constitution came into force and some sort of an institutional apparatus was visualized with commitments to social change, for instance in the form of Fundamental Rights and Directive Principles of State Policy. The Constitution was adopted to force the pace of social and economic renaissance in India and as a step towards social change and nation building.

Indian Constitutional Law was in a sense adopted from various other jurisdictions. In keeping with this prospective need for decoupling Indian Laws from their colonial roots, Article 13 of the Constitution has paved the way for judicial review of the Pre-Constitutional laws. Various questions arose with regard to the interpretation of Article 13 and the Fundamental Rights which culminated in a series of judicial pronouncements, including A.K. Gopalan vs. State of Madras,[3] which was argued by none other than Sri. M.K. Nambiar, the illustrious father of Learned Attorney General, Sri. K.K. Venugopal; Keshavan Madhava Menon vs. The State of Bombay,[4] State of Bombay vs. F.N. Balsara,[5] Romesh Thappar vs. State of Madras,[6] State of Madras vs. Champakam Dorairajan,[7] etc. The judicial foundations for the various doctrines clarifying the clashes and the contradictions arising in the interpretation of Article 13, were laid during the period between 1950 and 1954.

It can be said that the proposed throwback series is highly relevant from a historical and academic perspective. For instance, the sitting of the Bench of the Supreme Court in the then State of Hyderabad with ad-hoc judges is also noted from the 1950 Report. They serve as points of reference, from which the evolution of the constitutional and legal philosophy of the Apex Court may be traced.

On the occasion of the release of a throwback series, I remember the role played by the Supreme Court of India, to become, in every sense, an institution for realisation of Fundamental Rights. I acknowledge with respect my predecessor Judges, who adorned the Bench of the Supreme Court with distinction; whose jurisprudential labour breathed life into the substantive rights enshrined in the Constitution and paved the way for the progeny of second and third generation Fundamental Rights and who have kept up the flame of democracy burning bright. I am confident that the Supreme Court will continue to demonstrate compassion, innovation and fairness to ensure that justice is not jejune. The common man can continue to look to the Apex Court for vindication of his rights.

I take this opportunity to suggest to the SCC team to venture further into the alleys of the Judicial History of India by coming out with a Law Reports series of all available decisions of the Federal Court of India, [which was established under the Government of India Act, 1935, and functioned between the years 1937 and 1950, as the Highest Court in the Indian territory, vested with original, appellate and advisory jurisdiction.

It is exceptionally noteworthy that through the editorial notes supplied in the case reports in the throwback series, SCC has indicated instances where a judgment has since been overruled. Therefore, these case reports serve not only as authoritative texts of the particular decision, but act as a source for research on the evolution of the point of law under consideration in the said judgment.

It is often said that the task of an editor of law reports is challenging, more so because of the so called “prolixity syndrome” in Indian Supreme Court Judgments. While I do not dispute the fact that brevity, simplicity, lucidity and clarity are the essentials of a good judgment, what is also expected of a good judgment is that it undertakes a discussion of arguments advanced at the Bar. The arguments must be appropriately dealt with in the editorial notes and emphasis must be placed only on the arguments and reasoning which form the substance of the controversy at hand. This would lend focus to the editorial note.

It is a common criticism that the difficulty in identifying the precise ratio is also attributable to a problem at the institutional level of the Supreme Court, owing to the practice of Justices giving separate but concurring opinions. It is said that this practice makes it problematic to identify and delimit the ratio. While I certainly do not subscribe to the view that multiple concurring opinions could obscure the ratio and could therefore be damaging to the theory of precedent, I am delighted to note that SCC has factored in this criticism/concern too and accordingly modelled its editorial style. I am impressed to see that in the recent editions of the law reports, they have been indicating in a clear one-liner, the crux of the difference in reasons of multiple judges authoring separate but concurrent opinions.

As discussed through the course of my talk, the importance of law reports within a legal system stems from a variety of factors. Prime among such factors is the core principle that the law is for all and should therefore be accessible. That is why, Supreme Court judgments are now being translated into many Indian languages. I once again applaud EBC and the SCC team for publication of well edited and annotated reports, thereby addressing, inter-alia, the issue of accessibility, whether for the public, or for legal professionals.

I once again thank Sri Surendra Malik and Sri Sumeet Malik and their team for inviting me to share a few of my thoughts today.

I wish the management of Eastern Book Company and SCC, the very best, as they continue to strive towards building legal information databases using the finest of technological innovations. This is with a view to provide access to comprehensive, accurate and up-to-date legal information.

I thank you all for your kind attention.

Thank you and Namaskar.


The video of the entire event can be viewed below:

 

 


[1]Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388.

[2]5 P. Ramanatha Aiyar, Advanced Law Lexicon, (Shakil Ahmed Khan Eds.) (LexisNexis).

[3]A.K. Gopalan vs. State of Madras, AIR 1950 SC 27.

[4]Keshavan Madhava Menon vs. The State of Bombay, AIR 1951 SC 128.

[5]State of Bombay vs. F.N. Balsara, AIR 1951 SC 318.

[6]Romesh Thapar vs, State of Madras, AIR 1950 SC 124.

[7]State of Madras vs. ChampakamDorairajan, AIR 1951 SC 226

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