Reports of Judicial Precedents at Calcutta from the days of Sudder Dewanny Adawlut to Up-to-date

The most authoritative and celebrated law-giver of the Hindus, Manu, in Book XII, Verse 6 of his “Manu-Samhita” notices the binding nature of judicial precedents and ordains thus: “If it be asked how the law shall be ascertained when particular cases are not comprised under any of the general rules, the answer is this: That which well-instructed Brahmins propound shall be held incontestable law”. Mr. William H. Morley in his admirable treatise “Administration of justice in British India” in commenting upon the same opines that “it is perhaps solely on account of the metaphysical tendency of the Indian mind, which has always interfered with the more practical record of mundane matters, that we do not possess collections of decisions by the more ancient lawyer, which would” have been in most cases as conclusive as they would be desirable in all”.  So far as the Muhammadan law is concerned, it is well-known that “Hadis”, that is, a large body of precedents embodying the precepts and sayings of the prophet Mahomed in matters concerning law and religion and “Ijmaa”, that is, the decisions given by the companions and disciples of the prophet with regard to questions pertaining to law and religion, are recognised as the chief sources of Muhammadan law. Coupled with these were the “Futwas” or decisions of distinguished lawyers which were considered as judicial precedents of high authority in the Mahomedan Courts of Justice.  It was Mr. Dorin, later on a Judge of the Sudder Dewanny Adawlut, who hit upon the idea of recording the judicial precedents in India and observed as early as in 1813 thus:  “I think it should be enacted by a Regulation, that from a given period, the judgments of the court shall be considered as precedents binding upon itself and on the Inferior courts in similar cases which may arise thereafter. This will have the effect of making the superior courts more cautious and of introducing something like a system for the other courts, the want of which is now very much felt..........Hitherto it has not been the custom to refer to precedents and for aught the Judges of the Court may know, the same points may have been decided over and over again and perhaps not always the same way. It is obvious, that having something like a system established would tend to abridge the labour of Civil Courts”* *  ** Morley — Administration of Justice in British India.  In tracing out the history regarding the recording of judicial precedents in British India it is very interesting to note that it was left to Sir Francis Macnaghten, formerly a Judge of the Supreme Court, Calcutta, to insert reports of cases illustrative of his dissertations on Hindu law as current in Bengal, published in 1824. Sir William Macnaghten, another illustrious author took similar pains in his dissertations on Muhammadan law, published in 1825.  The first credit for publishing the printed Reports of cases decided by the Hon’ble East India Company goes to Sir William Hay Macnaghten when he was the Registrar of the Sudder Dewanny Adawlut at Calcutta. In 1827 a second edition of the first two volumes of the same prepared under the supervision of Mr. Dorin, afterwards a Judge of the said Court, was published. It is of much importance to bear in mind that the notes to the cases in the first volume were written or approved by the respective Judges who decided those cases. The second, third and part of the fourth volume of the said Reports were published by Sir William Macnaghten. Mr. Udny and Mr. Sutherland were responsible for publication of the later cases of the Fourth volume and Fifth volume respectively of the said Reports. Two other volumes of the same were published without any reporter’s name.  It is interesting to note that since the end of 1844 the said reports, latterly known as “Select Reports”, were published as “approved by the Court”. These Reports were adapted to serve as precedents to the inferior Courts. Reports of summary cases determined by Sudder Dewanny Adawlut at Calcutta from 1841-1846 were incorporated in the 7th volume of the aforesaid Reports. A selection of Reports of summary cases containing selected decisions of the Sudder Dewanny Adawlut from 1834 to 1841 which were published separately in 1845, were continued till 1848. Thereafter much inconvenience was felt as a result of the Resolution dated the 27th April 1849 of the Sudder Dewanny Adawlut stating that the “Court are of opinion that their (Reports of summary cases) publication may go on, not as approved by the Court but with the sanction only of the Judge in charge of the Miscellaneous Department whose decisions they are and who will note such of them as he may think useful for publication”.*  * Morley — Administration of Justice in British India.]  A reprint of the Reports of Summary Cases decided by the Sudder Dewanny Adawlut of Calcutta comprising reports from 1832 to 1852 was published in 1853 and stated to have been revised by a Judge of the said Adawlut. In 1856 was published another edition of the same determined from 1834 to 1855 with the cases alphabetically arranged.  A pleader of the Sudder Dewanny Adawlut, Mr. Sevestre, was responsible for publication of the Reports of Summary Appeals of the said Adawlut of Calcutta. The first volume was completed in 1842. A collection of decisions of the Sudder Dewanny Adawlut was “commenced in 1845 by order of the Right Honourable Governor of Bengal”. A separate volume was prepared for each year and on and from 1850 abstracts of decisions were marginally noted in the Reports.  The first credit of recording the judicial precedents of the Supreme Court at Calcutta goes to Mr. L. Clarke who incorporated notes of cases in his edition of the Rules and Orders of the said Court, published in 1829. A comprehensive and admirable volume comprising full reports of cases as determined by the Supreme Court was published in 1831. In 1834, Mr. Smoult took great pains in the publication of a collection of orders on the ‘Plea Side’ of the court at Calcutta from 1774 to 1813 wherein valuable notes of cases concerning points of practice, from 1774 to 1798 were incorporated. Thereafter Mr. Morton was credited with the laborious task of compiling a collection of decisions of the Supreme Court of Calcutta from a huge mass of Mss. notes of a galaxy of Judges Including the Hon’ble Chief Justice Sir R. Chambers, Mr. Justice Hyde of the said Honourable Court. The same was published in 1841 and republished in 1858. Then with regard to the cases determined by the, Supreme Court between the years 1842 and 1844 it was left to Mr. Fulton, Barrister-at-Law, to publish a single volume of Reports of the same in 1845. Thereafter another Barrister-at-Law, Mr. Montriou, took up the charge of publication of a volume of Reports comprising decisions of the Supreme Court at Calcutta for the year 1846 but it was in 1850 that the said volume was ushered in before the public. Mr. Taylor went on continuing the publication of the said deports till the end of the year 1848 when Mr. Bell in collaboration with Mr. Taylor published the subsequent cases.  It is very interesting to note that few reports have been published regarding the judicial precedents In the administration of Criminal Judicature. It was again left to Sir William Macnaghten to take up the charge of publication of collection of cases determined by the Nizamut Adawlut at Calcutta. Only the sentences of the Nizamut Adawlut appeared in the said collection. The subsequent volumes of the said Reports however appeared without the names of reporters. “In January 1851 monthly series of the decisions of the Nizamut Adawiut at Calcutta was commenced”.**  ** Morley —Administration of Justice in British India.]  So far as the decisions of His Majesty in Council are concerned, the same were inserted, in the first instance, in the Reports of Messrs. Knapp and Moore. Thereafter the same continued to appear at interval under the title of “Indian Cases” ably edited by Mr. Moore. Mr. Lawford also published a valuable collection of the decisions of the said August Council in separate volumes In “Indian Appeals”.  Mr. William Morley “inserted in the Appendix of Indian Cases, a valuable series of notes of cases decided by the Supreme Court of Calcutta by the late Edward Hyde East, formerly Chief Justice of the said Court”. He also took laborious pains in publishing in 1852 the first volume of a new series consisting of decisions of all the Courts to the end of 1850. The first two volumes of Mr. Morley’s Digest bore the stamp of his erudition of a very high order inasmuch as original authorities and explanatory notes at suitable places were resorted to by the author. Mr. Morley’s name is still being remembered with great reverence for his admirable treatise “Administration of Justice in British India” published in 1858 wherein a history of justice as administered in India with an account of the recording of judicial precedents in India bad been succinctly and carefully noted.  On coming to recent times we find that with a view to reporting on an authoritative basis the Indian Law Reports Act was published in 1875 and the Indian Law Reports, Calcutta series, was ushered in the same year. The Calcutta Law Journal commenced its publication in the year 1905, and the Calcutta Weekly Notes, a very influential legal journal of Calcutta, was first published by Mr. Jogesh Chaudhri, Barrister-at-Law in 1896. All the aforesaid three legal journals are still in progress and held in high esteem in Calcutta’s legal domain. Mention should be made here of the All India Reporter, legal Journal of all India circulation, which commenced its publication from Nagpur in the year 1914. It is still in progress and comprises decisions of different High Courts of India, including the Calcutta High Court, the premier High court of India.

Author Name: Gauri Prasasd Mukherjee