The Supreme Court and many High Courts have a practice of certifying a judgment as ‘Reportable’. Law journals like SCC report both Reportable and Non Reportable judgments of the Supreme Court whereas official reporters like Supreme Court Reports only report those judgments which have been certified as ‘Reportable’.
If a judgment is not certified as ‘reportable’, or if it is ‘non-reportable’ or ‘unreportable’, can it be cited?
In Commissioner, HR & CE vs E.K. Sethuramalingam Pillai , a Lower Appellate Court refused to rely on a typed copy of judgment of the Madras High Court observing that any legal principle or interpretation upheld or given or applied in a case cannot be deemed to have become law unless it has been reported in a journal of case laws as provided in the Indian Law Reports Act of the Parliament and so the case cited which has not been reported in any law journal cannot be made use of by the court. Disapproving this approach, the High Court said that the judge was bound to follow the judgments of the High Court, whether they are reported or not, if they are produced, provided they are certified and authenticated typed copies. However, in K.V. Bhundia vs State Of Gujarat , the Gujarat High Court observed that, when a judge made a judgment unreportable, it can not be cited as a precedent.
This controversy is succinctly addressed in a judgment of Nagpur High Court [Vinayak Shamrao v. Moreshwar, AIR 1944 Nag 44] , in which it was observed thus : “ From the point of view of the judgment becoming a judicial precedent what is material is the decision in the case; it is the decision and not the opinion of the Court nor the report of it that, makes the precedent. Hence an unreported case may be cited as an authority if the actual decision can be shown from the original sources It is the decision which establishes the precedent and the report but serves as evidence of it.”
The Law Commission of India, in this regard, in its 14th Report, has noted that if in the course of an argument a certified copy of a judgment of the Supreme Court or the High Court is produced it would have to be treated as a binding decision notwithstanding the fact that it has not been reported. “Could counsel say to a litigant seeking his advice “This is the law according to a judgment delivered by the Supreme Court. But as it has not been reported and your case comes up for hearing tomorrow it may be possible that the High Court may decide against you. If, however, your case is heard, after a few months when the decision is reported it is possible that the case may be decided in your favour”? Thus, if the fact of a judgment being reported or not is irrelevant to its authority how could it be urged that judgments reported in a particular series, say, the authorised series should alone have binding authority and not others? Is a text book writer to ignore decisions which have not been reported in the authorised series and state the law only in accordance with what is to be found in that series?”, the report reads.