Invisible Corners Of Supreme Court Of India: Paradox Of Non-Reportable Judgments

The public discussion surrounding Justice (Retd.) Abhay S. Oka, who authored nearly ninety-nine non-reportable judgments, has revived a long-standing institutional puzzle, why does the Supreme Court of India, a constitutional court committed to transparency, continue to categorise many of its reasoned decisions as “non-reportable”? The issue does not concern judicial competence but the persistence of an opaque practice with no statutory foundation, no codified criteria, and little jurisprudential coherence. The paradox becomes sharper when one considers that these non-reportable decisions are fully reasoned, binding, and form part of the Court's interpretive life, yet remain marginalised in the public and doctrinal imagination.

Colonial Origins of a Selective Practice

To understand the endurance of this practice, one must turn to history. The distinction between reportable and non-reportable judgments emerged not from any constitutional principle but from the material constraints of the nineteenth century. The Indian Law Reports Act, 1875, conceived under the intellectual direction of Sir James Fitzjames Stephen, established a curated system of authorised reports. Printing technology, editorial capacity, and the expense of paper compelled editors to publish only those decisions that articulated new principles or clarified legal doctrine. Routine matters, fact-heavy disputes, and repetitive applications of settled law were excluded from formal publication. Over time, this practical distinction acquired a jurisprudential aura. Reported judgments came to be viewed as authoritative, while unreported ones appeared peripheral. Yet this evolution obscured the basic historical truth: the distinction originated from technological scarcity, not normative judgment. With the repeal of the 1875 Act in 2016, even this colonial statutory framework disappeared, leaving behind a practice that persists more from institutional inertia than legal necessity.

Legal Basis and Jurisprudential Origins

Despite its ubiquitous use, the classification of Supreme Court judgments as reportable or non-reportable lacks a statutory basis. The Supreme Court Rules of 1966 and 2013 do not define or authorise such categorisation. No legislation prescribes criteria or procedures for differentiating judgments. As a result, the practice operates through uncodified bench discretion, guided neither by transparent standards nor consistent application. The 14th Law Commission Report (1958), while acknowledging the practical need for selectivity in an era dominated by print, warned of inconsistency and encouraged systematic reporting. Its insights now highlight the anachronistic nature of selective publication in the digital era. Today, when every judgment can be uploaded online instantaneously, the historical justification for selective dissemination no longer exists. Judicial practice reflects this ambiguity. Indian courts have grappled with the implications of unreported decisions without resolving the status of the category itself. In Vinayak v. Moreshwar (1944), the Court recognised that unreported decisions may contain persuasive reasoning notwithstanding their limited circulation. In State of Orissa v. Sudhanshu Sekhar Misra (1968), the Court warned against misapplying isolated observations, an interpretive danger heightened when judgments circulate unevenly and without formal headnotes or editorial framing. These cases illustrate the uneasy doctrinal space occupied by non-reportable judgments: relevant but under-recognised, reasoned but marginalised. The current debate triggered by Justice Oka's non-reportable judgments highlights the structural opacity. If meticulously reasoned decisions by a widely respected judge remain non-reportable, the basis for classification becomes even more elusive.

Contemporary Meaning of Non-Reportability

The modern justification offered for categorisation relies on the purported distinction between cases that articulate or clarify legal principles (reportable) and those that merely apply settled law (non-reportable). Reportable judgments, it is argued, have precedential significance because they contribute to doctrinal development. Non-reportable judgments, by contrast, supposedly concern routine applications of established principles. However, this justification is problematic for several reasons. First, it lacks codification, allowing classifications to vary widely across benches. Second, it is inconsistently applied: judgments containing substantial reasoning often remain non-reportable, while others of limited doctrinal value are reported. Third, the justification no longer fits technological reality. With digital access, the burden of unlimited publication has vanished; the selective model now functions as an opaque editorial filter rather than a principled jurisprudential tool.

Comparative Perspectives: A Global Shift Toward Openness

India is not the only jurisdiction to have grappled with the legacy of selective reporting. Several common-law countries once maintained similar practices but have now moved decisively away from them. In The United States for decades, federal appellate courts produced “unpublished, non-precedential” opinions that were often uncitable. The adoption of Federal Rule of Appellate Procedure 32.1 (2006) now allows citation of all such decisions. The UK Supreme Court publishes all its decisions online and does not recognise any internal hierarchy of reportability. South Africa operates a fully open-access model where all judgments are published and citable. Australia and Canada, although historically dependent on curated reports, both countries now maintain comprehensive, government-managed digital repositories of judgments. The global trend is clear: selective reporting is fading in favour of transparency, accessibility, and doctrinal completeness.

Critiques of the Existing Indian Practice

The persistence of non-reportability raises significant constitutional, democratic, and jurisprudential concerns. At the forefront is the transparency deficit it creates. Judicial legitimacy relies on public access to the Court's reasoning, and when a substantial portion of judgments remains outside widely circulated reports, scrutiny becomes selective and incomplete. This opacity undermines one of the central pillars of a constitutional democracy: the public's right to understand how and why courts decide as they do. Closely related is the accountability gap that emerges from a body of judicial work that remains partially hidden. Scholarly criticism, intra-judicial dialogue, and informed public debate depend on access to the full range of judicial output. When non-reportable judgments do not reach the same level of visibility as reported ones, the institutional mechanisms that ensure judicial accountability are weakened. Equally pressing is the inequality of access produced by the current system. Lawyers with access to commercial databases can retrieve non-reportable judgments, while those dependent on open-access sources cannot. This creates a hierarchy within the Bar, undermining the principle of equality of arms. Non-reportability also contributes to doctrinal fragmentation. Important interpretive strands buried in obscure judgments may escape the attention of future benches, leading to repetitive litigation and inconsistent jurisprudence. When fully reasoned decisions fail to enter the mainstream doctrinal conversation, the coherence and continuity of precedent suffer. These critiques collectively demonstrate that the continued existence of the non-reportable category is incompatible with the demands of a modern constitutional democracy.

Way Forward

India now stands at a decisive moment. The non-reportable category is a colonial remnant unsupported by statute, inconsistent with democratic norms, and incompatible with digital capacity. Moving forward requires structural reform.

First, the non-reportable category should be abolished, aligning Indian practice with global standards of transparency. If any differentiation is to be retained, it must be codified through Supreme Court Rules, not left to bench-level discretion. Second, the Court should establish a unified national repository free, authoritative, and searchable ensuring that every judgment is equally accessible. Third, institutional guidelines should emphasise that judicial reasoning is a public resource, and access to it is integral to the rule of law. Finally, training and administrative protocols must reinforce that transparency is not merely an administrative preference but a constitutional imperative. Judicial reasoning cannot reside in semi-visible spaces within a constitutional democracy. The practice of marking judgments as non-reportable once justified by colonial printing limitations now undermines transparency, weakens doctrinal coherence, and entrenches inequality of access. Comparative experience demonstrates a global shift toward openness. India must follow. In an era defined by digital access and constitutional commitments to openness, the hidden courtroom has no legitimate place

Author is Assistant Professor (Law), School of Law, UPES Dehradun. Views Are Personal.