In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal writes about the doctrine of stare decisis and its position in India, Canada and Unites States

Introduction

In its literal sense, “stare decisis” translates as “to stand by decided matters”. “Stare decisis” is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions and not to disturb settled matters.”

In its most generic sense, this doctrine states that the lower court is bound by the decision of the higher court, provided the lower court falls within the provincial jurisdiction of that higher court. However, the decision by any other higher court, which doesn’t have such jurisdiction, would only have persuasive authority.

The degree of persuasiveness is dependent upon various factors, which includes:

• Nature of the other jurisdiction plays a very important role.
• Then, comes the degree of persuasiveness, which in turn depends upon the level of the court which decided the earlier case in the other jurisdiction.
• The date on which such precedent was set. This factor is important because there is an assumption that more recent the case, the more reliable it will be, although this is not necessarily so.
• In some rare occasions, the reputation of the judge who has decided the earlier case also affects the degree of the persuasiveness of the authority.

The Indian position

The Supreme Court has correctly pointed out that the words of Article 141-“binding on all courts in India”, must be given a wide interpretation, but such as not to include the Supreme Court. The SC is not bound by its own judgments but is free to reconsider them in appropriate cases as and when required.[1]

However given the power to overrule a decision, what are the circumstances in which the power should be exercised. In the case of I.T.O Tuticorin v. T.S.D. Nadar[2], it was held that “the decisions of the court should not be overruled except under circumstances which compel them to do so…every time the court overrules its previous decision, the confidence of the public in the soundness of decision of this court is bound to be shaken…decisions of this court should be confined to questions of great public importance”.

While deciding the extent of applicability, of the doctrine of stare decesis upon the Supreme Court itself, Supreme Court has, in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr[3]., held that when the Apex Court is deciding any questions of law, it must take note that such decisions are being binding on all other subordinate courts, by the applicability of Article 141, and hence the SC must maintain an element of certainty and continuity in the interpretation of law in the country. The SC further stated that if the previous decisions, which are already having a force of precedent, are reviewed and altered, then it might lead towards making law uncertain, and might create confusion in its applicability, which must be constantly avoided. So, the higher courts must overrule its previous decision only after being satisfied that the previous decision was erroneous, and a fair amount of ambiguity is present and that to clear out such ambiguity the intervention of the court is necessary.

The Canadian position

Because of the maturing of Canadian jurisprudence, the Supreme Court of Canada has relatively reassessed its own position on the effect of its own prior decisions. In light of these changes, the current position appears to be as follows:

The Supreme Court of Canada is not bound to follow its own prior decisions. The Supreme Court can no longer be content to say that the case is governed by an earlier decision unless the decision provides the proper reconciliation of the competing interests which are involved.

All Canadian courts are bound to follow a precedent of the Supreme Court of Canada[4] and any pre-1949 decision of the Privy Council which has not been overruled by the Supreme Court of Canada. A minority opinion of the Supreme Court of Canada is, however, not binding.

A decision of a court of co-ordinate jurisdiction is not binding although where there is a conflict it may be appropriate to refer the case to the Court of Appeal. While the decisions of co-ordinate courts aren’t of binding nature, however, these are highly persuasive in nature.

The US Position

In the US, there are two variants of the doctrine of stare decisis. One is the strong form, according to which precedents are binding in nature. Another form is a weaker form, according to which precedents have mere persuasive value. In the weaker form, the dissenting or minority opinion of judgment could be more persuasive than the prevailing or majority opinion of the court. In this form, precedent becomes a convenient way to save time in litigation, the person who is arguing the case can simply cite the reasoning that has been given in another case, by saying that “My reasoning is similar to that”, and nothing more.

The principle of stare decisis thus essentially acts as a safeguard for the judges. It encourages the judges to resort to the previous judgments when required. Time and again, courts have held that such decisions are influential on the decisions by subordinate courts and therefore, the superior courts must be very careful and cautious while interpreting the law. The need is to demand that the judges exhibit more courage, and return to fundamental principles, resorting to stare decisis only when the positions lie on the fuzzy boundary of the region of legitimacy.

Conclusion

The available literature for this more or less settled issue of utmost jurisprudential importance is still wrapped in an enigma. While there exists a dominant school of thought that propounds the academic virtues of the doctrine, there is also another school, not contradictory but rather complementary to the same and which attaches a more philosophical connotation to the doctrine.

In my opinion, the doctrine of stare decesis is very much needed, but it must not be applied, where applying such would lead to injustice and unfairness to the parties in a suit.

[1] Bengal Immunity Company Limited v. State of Bihar, (1955) 2 S.C.R 603

[2] AIR 1965 TN 234

[3] AIR 1997 SC 1266

[4] Paul M. Perell, “The Doctrine of Stare Decisis,”

Available at <http://legalresearch.org/docs/perell.html#17> (last visited on 4^th September, 2012)