This article is written by Sparsh Agrawal from Symbiosis Law School, Hyderabad; and has been further updated by Vaishali N., a student at the School of Excellence in Law, Chennai. This article explains the doctrine of precedents while discussing important concepts revolving around it with the help of case laws.
It has been published by Rachit Garg.
Table of Contents
Introduction
According to Sir John Salmond, ”A precedent is said to be a judicial decision which contains its principles. The stated principle which thus forms its authoritative element is called the ratio decidendi. The concrete decision is thus binding between the parties, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.”
The appellate system which has been structured on the common law pattern of the hierarchy of competent courts, the doctrine of precedents can be considered as a vigilant omnipresence. The relevance of precedent as a guide to judicial decision making remains as undisputed in the present day as it was more than a hundred and forty years ago when Lord Campbell called attention to the importance of the binding effect of the ratio decided in A.G. v. Dean.
It is inconceivable that judges will express their mind on the question of law otherwise than through a reasoned articulation which bears upon prior case law contained in the decisions of their predecessors. In India, as in any legal system with its roots in common law, stare decisis epitomizes a legal ideology that expresses a fighting faith in the assertion that the law should be founded on such values as continuity, and certainty, Underlying the stare decisis rationale is the pervasive, albeit uncritical, assumption that the judicial process is concerned with an articulate and accurate enunciation of pre-existing law as opposed to the more arbitrary and inherently non-judicial process of legislative law-making.
Judges who are brought up in the tradition of English common law rationalize their decisions in terms of ratio decidendi of past cases. As a matter of legal theory, though not strictly as a matter of judicial practice, they are bound by prior decisions of controlling authority.
Some works on the Supreme Court and judges of the Supreme Court advertised that the Indian Supreme Court is lacking ‘unprecedented consciousness’. It is said that there have been activist judges in the court who have often enough refused to take note of the relevant precedent. Even the non-so-activist judges, it is said, have ignored precedents that could have been appropriately noticed and distinguished. There have been instances of judges who on careful reconsideration have disassociated themselves from their own earlier pronouncements.
In accordance with Article 141 of the Constitution, the Supreme Court of India is enjoined to declare the procedural law as well as the substantive law. The term ‘declared’ is said to be wider than the term ‘made’ or ‘found’ for that matter. It has been specified that to declare means to announce a particular opinion. Indeed, the term “made” involves a process, while the term “declare” expresses a result. The law declared by the Supreme Court is the law of the land. It is a precedent for itself and for all courts/authorities in India.
To deny this power to the Supreme Court footing it only “finds” law but does not “make” it, is to make ineffective the powerful instrument of justice placed in the hands of the highest Judiciary. While the position of the Supreme Court is subordinate to the legislature, in declaring the law, creativity is involved. A statute is binding; but it is the statute, as interpreted by the Supreme Court that is binding on all the other courts. The Supreme Court is not a mere interpreter of the existing law. As a wing of the State, it is a source of law”.
In Mohd. Ahmed Khan v. Shah Bano Begum it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court, after finding out the important rights of Muslim divorced women who were not there properly in the original texts or any other material, upheld the same.
What is doctrine of precedent
A judicial precedent is a legally binding rule or a decision that is given by a higher court in certain cases, which the lower courts rely on while deciding similar cases. Precedents are considered an important source of law. Keeton defines judicial precedents as “judicial decisions to which authority in some measure has been attached”.
Precedents serve to supplement and bridge the gaps in the legal system where they’re required. Hence, precedents can lay down a rule or law but cannot alter already established laws. Since these judicial precedents are given by judges, who are experts in law, they are generally presumed to be right, and it is on this basis that precedents have an element of authority attached to them. Hence, the doctrine of precedent refers to the authoritative nature of the precedents, which obligates the courts to apply precedent in cases where the material facts of the case are similar to those of the precedent case.
The rule of precedent has been adopted from English jurisprudence into the Indian Constitution. Article 141 of the Constitution stipulates that “the law declared by the Supreme Court shall be binding on all Courts within the territory of India”.
Historical growth of precedent in India
The English Common Law system is widely built upon the judicial precedents decided by the House of Lords and, currently, the English Courts. With the establishment of Mayor’s Courts by the British East India Company in 1726, the use of judicial precedents was introduced in India. In 1935, through the enactment of the Government of India Act, 1935, judicial precedents were finally given statutory recognition. Section 212 of the 1935 Act declared that the laws and precedents made by the Privy Council and the Federal Court shall be binding on all the decisions taken by Indian Courts. After independence, when our Constitution came into force in 1950, Article 141 was enforced, which strengthened the status of judicial precedents in the Indian legal system. It established that all the laws or rules made by the Supreme Court shall be binding on all the other lower courts. However, there was ambiguity regarding whether the Supreme Court would be bound by its own precedents or not. Referring to the English courts, initially, both the subordinate courts and the House of Lords themselves were bound by the decisions taken by the House of Lords. But later, in the case of Boys v. Chaplin (1967), it was ruled that the House of Lords would not be bound by its decisions. In India, in the case of Bengal Immunity Co. v. State of Bihar, 1955, the question of whether ‘all courts’ included the Supreme Court was resolved. The Court remarked that “there is nothing in the constitution that prevents SC from departing from its own decisions, if it is satisfied of its errors and of the beneficial interest of the general public.” Thus, the Supreme Court is not strictly bound by its own decisions.
What is ratio decidendi
According to Salmond, a precedent is a judicial decision that contains a principle. This principle has authority, or the force of law, which will bind the Courts in their subsequent judgements. So, this authoritative principle in a judicial decision is called the ratio decidendi. The entire judgement as a whole binds the parties to the case completely, but the ‘principle’ which constitutes the ratio decidendi of the judgement alone, has force of law vis-a-vis the world at large.
Rupert Cross defines a ratio decidendi as “the rule of law, expressly or impliedly treated by the judge as a necessary step in reaching his conclusion”. Ratio decidendi literally translates to “reason for deciding”. It is the rationale given by the judges for deciding a case or reaching a conclusion in a certain manner. A ratio is derived from the application of the law to the material facts of the case. Thus, it is a statement of applied law on the facts of the case, and this ‘reason or rationale’ is binding on the subordinate courts while they decide on cases with similar facts.
In the case of Shailyamanyu Singh v. the State Of Maharashtra (2023), the Court clarified that neither the finding of the facts by the court nor the reasons given for deciding on granting specific relief can be considered precedent. Only the statement of law applied to the legal issue raised on the facts based on which the case is decided forms the ratio decidendi, which constitutes a binding precedent.
Further, in Manager v. Pawan Kumar Dubey (1976), the Court remarked that ratio decidendi is the rule that is deduced from the application of law to the facts and circumstances of the case and not the conclusion that was arrived at in the case, since even a slight difference in facts in two similar cases can lead to very different conclusions even when the principles applied in both the cases are the same. In Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. (2005), the Court explained that “the ratio decidendi of a case is the principle of law that decides the dispute of facts in the case.”
What is obiter dicta
The Latin term “obiter dicta” (or “obiter dictum” in singular) means “things said by the way”. Obiter dicta, much in contrast to ratio decidendi, are those statements, discussions, legal opinions, or remarks given by the judges that do not directly play a role in how the decision or judgement of the case turns out. These are miscellaneous statements that constitute the major portions of the judgement, however, they are not legally binding like a precedent.
Professor Patterson defines obiter dictum as “a statement of law in the opinion that could not logically be a major premise of the selected facts of the decision”.
Obiter dicta are statements that are not central to any kind of legal reasoning or application of law but rather are used as an instrument of persuasion by the judges. They provide insights into the thought process of the judges and gain their views and opinions on a certain legal point. At times, one can even find suggestions or judges calling out the defects in a certain law through these obiter dicta. However, even these views, suggestions, and explanations into broader concepts of law can be given by the judges only if they are strictly relevant to the case in hand and when they feel a need to speak out for the sake of the public.
However, it is important to note that in the Indian legal system, certain cases have reiterated the binding capacity of obiter dicta of the Supreme Court over the High Courts and other subordinate courts. In Hiralal Gnaeshmal Jain v. State of Maharashtra (1992), the judges observed that even the obiter dicta of the Supreme Court will be binding on them; however, if the point of issue on which the decision is being made already has a direct decision of the Supreme Court but there also exists an obiter dicta of the Supreme Court on the same issue but contrary to the direct decision, then the authority of the direct decision will prevail over the obiter dicta. To put it more simply, even though the obiter dicta of the Supreme Court may have a binding effect, they cannot override the direct findings of the Supreme Court itself.
Furthermore, not every opinion of the Supreme Court would be binding on the High Court. This was held in the case of Mohandas Issardas & Ors. v. A. N. Sattanathan & Ors. (1955), where the Court clarified that the only opinions that would be binding on the subordinate courts were those that were given by the Supreme Court on the question that was put forth for the Supreme Court to decide, even though that question ultimately was not crucial to the final decision.
What is binding under Article 141
“What is binding is the ratio of the decision and not finding on facts, or the opinion of the Court on any question which was not required to be decided in a particular case. The law that will be binding under Article 141 would extend only to the observations on the points raised and decided by the Court in a case. Therefore, as a matter of practice, the court does not make any pronouncement, particularly in Constitutional matters, on the points not directly raised for its decision. The general principle of law laid down by the Supreme Court is applicable to every person including those who are not a party to that order.
In other words, it is the principle underlying a decision that is binding. While applying the decision in a later case, therefore, the later court should try to ascertain the true principle laid down by the provisos decision, in the context of the question involved in that case from which the decision takes its colour.
In this background, the following are some of the areas identified by the researcher to determine the scope of research and of the doctrine of precedents under the Constitutional framework of India.
“A decision is binding not because of its conclusion but in regard to its rationale and the principle laid down therein.” [J. J. Sharma Rao Vs Union territory of Pondicherry]
“In the hierarchical system of Courts. It is necessary for each lower-tier to accept loyally the decision of the higher tiers. It is inevitable in the hierarchical system of Courts that the decisions of the Supreme Appellate Tribunal do not attract the unanimous approval of the judiciary. But the system only works if someone is allowed to have the last word, which once spoken, is loyally accepted.”[Caspel Co, Ltd v. Broome ]
There are significant developments that happened during British India with regard to the theory of precedents in India. In India, the Doctrine of precedents has evolved for the necessary fulfilment of the goal of law i.e certainty, continuity, and stability.
Types of precedents
Authoritative and persuasive precedents
According to Salmond, authoritative precedents are those that judges are bound to follow regardless of whether they agree with the principle or not. They are one of the major sources of law. Authoritative precedent establishes a set of definite rules and is backed by legal force that binds other courts to follow it.
Persuasive precedents, as the name suggests, are judicial precedents that merely have an element of persuasion attached to them. They do not have any legal force or authority that obligates the courts to follow them; rather, it is left to the discretion of the courts to take into consideration the effect of such precedents. They do not directly establish any law but could lay the groundwork for an authoritative precedent that might be established later.
For example, in the English legal system, only the decisions of the superior courts of justice are authoritative precedents whereas in American, Canadian, or Irish courts the decisions laid out are merely persuasive precedents.
Absolute authoritative and conditional authoritative precedents
Authoritative precedents are further classified as absolute authoritative precedents and conditional authoritative precedents.
Absolute precedents are required to be followed by the courts with implicit obedience. Absolute precedents are usually rules and decisions that are already well settled; hence, the judges only have the duty to declare and apply them.
Conditional precedents are those that have the authority to bind the court’s decision, but under certain exceptions or special cases, they can be disregarded. This happens when certain legal decisions are inconsistent with law and reason and are not well-settled; hence, the judges are at liberty to dissent from or overrule them and make a new law. However, should they overrule a conditional precedent, they must keep in mind not to make the law uncertain.
For example, the decisions ruled by the House of Lords are absolutely binding on the subordinate courts of England. In India, the decision of a single bench of a high court is only conditionally binding on the other high courts and subordinate courts, and it can be overruled or dissented by another judge or a division bench of the same or different High Court.
Declaratory and original precedents
In a declaratory precedent, there is merely an application of a rule of law that already exists. On the other hand, original precedents are the ones that create new rules. These form laws for the future because of their current application. Original precedents are the ones that develop the legal system of a country.
Both declaratory and original precedents have equal legal authority and have a value of their own.
“Guidelines and norms”- binding nature of precedents
In the case of Vishaka v. State of Rajasthan, the accused was alleged of the offence of the brutal gang rape of a social worker. The three-bench judge of the Supreme Court laid down relevant guidelines and norms as there was no enacted law related to effective enforcement of the basic human rights gender equality and also guarantee against sexual harassment. The court observed that norms and guidelines should be followed in workplaces in accordance with Article 141 of the Constitution. Further, the court has stated that the guidelines were declared under Article 141 of the Indian Constitution and were binding and enforceable in law, and suitable legislation accordingly occupied the field.
This particular judgment raises pertinent questions related to the absence of explicit provisions in the Constitution, and accordingly treaties the same legal status as that of the domestic legislation, and it is also open to the court to take the direct cognizance related to International conventions to which India is a party, but the main issue arises that Parliament has not yet enabled legislation and to invoke the aid of such conventions or treaties as a basis for a liberal interpretation of the fundamental rights provisions? It is also not clear as to what is the scope of power of the Supreme Court under Article 141 of the constitution read along with Article 32.
The Kerala State Backward Classes ( Reservation for Appointment for Posts in Services under the State) Act, 1955 which has retrospectively validated the law contained in the relevant statutory declaration that no creamy layer must exist in the state. This particular provision was accordingly held unconstitutional by the Supreme Court. In the case of Indira Sawhney v UOI, the court gave a decision for the exclusion of the creamy layer in classes from reservation benefits in accordance with Article 141 of the Indian Constitution. Hence, the apex court was justified in declaring the above mentioned Kerala act as unconstitutional.
In another case of H.P. v. Nurpur (P) Bus Operation Union, the provision to Section 4 of the Himachal Pradesh Passengers and Goods taxation Act, 1995 is unlawful in nature. However, if at all, doctrine of prospective overruling is applied, the proviso which has been directed that collections already made on the basis of such proviso shall not stand invalidated. When it was applied in the Supreme Court of India it was duly held that the directions given by the High Court were improper since the doctrine of Prospective overruling is only available to the Supreme Court not to the High Courts.
General principles (to be added right before ‘guidelines and norms – binding nature of precedents’)
- The decisions of the superior courts absolutely bind the inferior courts, and they are obligated to follow them.
- The Supreme Court is not bound by it’s own decisions, and it has the liberty to depart from them if necessary.
- The decision put forth by one high court does not constitute a binding precedent over another.
- The high courts or the other subordinate courts do not have the power to rule out the decisions of the Supreme Court.
- A Bench with a lesser quorum cannot dissent from the decisions of a larger quorum.
Conditions which destroy or weaken binding force of precedents
The authority of precedents comes from the presumption that judicial decisions are correct. However, there are certain exceptions that undermine this premise and weaken or destroy the binding force of the precedents.
Abrogated decision
If a judicial decision is found to be inconsistent with a statute or statutory rule that is subsequently enacted, or if it is reversed or overruled by a higher court, then such a decision loses its binding authority. A decision is reversed when it is challenged on appeal in the appellate court. And a decision is said to be overruled when a higher court declares that the precedent case was wrongly decided and, hence, should not be followed anymore.
Affirmation or reversal on a different ground
Another situation in which the binding force of a precedent is weakened is when the decision is appealed and the appellate court affirms or reverses the decision on a different ground or point of law. Often, the decisions of the lower courts, for example, are affirmed on a different ground by the higher court, which deprives the precedent of its authority completely. This is done because the higher court might not have agreed to the grounds on which the decision was formed, or maybe simply because shifting the decision to a different ground provided an easier way to decide a case or reach a conclusion.
Ignorance of statute
Ignorance of a statue is a grave mistake that completely destroys the authority of a precedent. If a precedent was established by a court by completely ignoring a statute or failing to recognise its relevance, such a precedent will not have any binding force. Even a lower court can disregard such a precedent on this ground.
Inconsistency with earlier decisions of a higher court
A precedent ceased to have any binding authority if the court that decided it failed to acknowledge relevant decisions given by a higher court. In this case, the precedent will be rendered inconsistent with the decision laid down by the higher court. For example, if the High Court of Madras decides a case while ignoring the already existing relevant decision taken by the Supreme Court, the decision of the High Court will become inconsistent with the rule of the Supreme Court and hence will not bind any other courts to follow its decision.
Inconsistency between earlier decisions of the same rank
When there are two decisions given on a legal issue by the same court or by different courts of the same rank that are in conflict with each other, the court is not bound to follow them. The appellate court and other lower courts are free to choose which decision they want to follow. It can either follow the latest decision on the premise that it was recently decided or it can refuse to follow it altogether on the basis of it being arrived at ‘per incuriam’ (with carelessness or disregard for law or fact).
Precedents sub silentio or not fully argued
If a decision is made in a case where a particular point was not noticed and was not argued by any counsel, a rule formed in such a case shall not be binding since, had that point been fully argued by the counsels, the decision of the court in that case could have been overturned in favour of the other party.
However, recently, it has been stated that a precedent cannot be destroyed merely because an argument was badly argued or fallaciously reasoned. Rather, a line has to be drawn between the total absence of an argument on a crucial point and an inadequate argument. In K. Balkrishna Rao v. Haji Abdulla Sait (1980), the Supreme Court stated that the binding force of a precedent does not depend on whether a particular argument was made or not, unless the point for which the argument was advanced was decided by the SC previously.
Decisions of equally divided courts
If the bench of an appellate court is equally divided about a judicial decision being appealed, the common practice in the House of Lords was to dismiss the appeal altogether. However, this is not a problem these days, as the Benches constitute an uneven number of judges.
Erroneous decisions
Sometimes the decisions of the courts can be based on the wrong principles and might be in serious conflict with the fundamental principles of the common law. In such situations, though logic suggests that the courts should be free to disregard such decisions, practical considerations require the courts to stick to these decisions just so that certainty of legal principles does not have to be sacrificed. However, they can overrule these decisions in some cases where these erroneous decisions have been used for a long time and have thus caused injustice to the people.
The House of Lords in London Transport Executive v. Betts (1959), held that the House of Lords can disregard a prior decision on its own if it clashes with the fundamental principles of common law. Similarly, the Supreme Court of India has also given a similar judgement, in Bengal Immunity Co. Ltd. v. State of Bihar, that the Supreme Court can depart from its previous decision if it is satisfied of its error and could gravely impact the interest of the public.
Shah Bano case
In the case of Mohd. Ahmed Khan v. Shah Bano Begum, it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court held after finding out what were the important rights of Muslim divorced women which were not there properly in the original texts or any other material. Such an interpretation of religious texts by an earlier Constitutional Bench done by the apex court was held to be binding in Danial Latifi v. Union of India.
Further, it was not open to the court for re-examining the position any longer because already a Constitution of the Supreme Court had accordingly declared the law after considering the Suras 241-242 of Chapter II of the holy book of Quran and also the other relevant material available. Moreover, the court even elaborated on the fact that the Muslim Women ( Protection of Rights and Divorce) Act, 1986 which actually codifies the law as stated in the Shah Bano’s case. The fundamental purpose of the act is to allow the Muslim husband so that he can retain his freedom of avoiding payment for maintenance to his erstwhile wife after the divorce and also after the period of iddat.
The apex’s court decision in cases of Shah Bano case and Danail Latifi case upholds the importance of precedent as well as the law which has been declared by the Supreme Court by way of interpretation of the religious texts, especially when there are several interpretations available in order to explain the meaning of the texts.
Binding on Tribunals
The apex court had even insisted that the tribunals also must follow the doctrine of precedent. Moreover, a tribunal is also bound by law which is laid down by the High Court and the Supreme Court.
Judicial power
The apex court in the case of Paramjit Kaur v. The State of Punjab went a step forward in order to expand the powers laid down under Article 141 of the Constitution. In order to enquire about the extrajudicial killings in the State of Punjab, the Supreme Court issued direction to the National Human Rights Commission.
Therefore, the jurisdiction of such a Commission came into question in reference to the statutory limitations and obligations of the respective Commission. The apex court accordingly held that by its orders and directions it can confer jurisdiction on a particular body beyond the purview of the Jurisdiction.
Binding nature of directions and Res Judicata
The Supreme Court’s decision which is neither without Jurisdiction nor against the principles of natural justice or any relevant provisions under the constitution of India is bound to become a binding decision and hence operates as Res Judicata. Moreover, such a decision is also not open to the Supreme Court in accordance with Article 143 of the Constitution as it would be impractical and would lead to appeal over its own decisions. Such a decision can be reviewed only under Article 137 of the constitution which is to be read with Order 401 of Supreme Court Rules, 1966].
Further, in the case of Director of Settlements, A.P. v. M.R. Appanrao wherein the apex court affirmed the decision stated in Shenoy & Co. case and accordingly stated merely because of the principles of Res Judicata has not been considered in any particular case, still, it could be relevant ground for reconsideration of the Judgement by the larger bench of the Supreme Court.
Reporting a particular case as a precedent
The courts over the years have been stating that if at all the Supreme Court had a decision in which it did not declare any principles of law, but had given the directions for the communication in special circumstances, the High court which is subordinate should find the ratio decision given by the apex court and also ascertain the law so declared from a careful reading of the decision before it tends to apply in other cases.
If at all, the High Court is exercising statutory power under the criminal law it could not assume itself the powers and jurisdiction to exercise the function of the Supreme Court. In terms of reporting a case as though it may be constituted as a precedent, for further guidance, it is not proper on the part of Editors of Law Reports.
What is doctrine of stare decisis
The Latin term “stare decisis” is short for the phrase “stare decisis et non quieta movere”, which translates to “to stand by decisions and not disturb settled matters”. Initially, the doctrine of stare decisis did not exist. Later on, in 1833, in the case of Mirehouse v. Rennel (1833) Chief Justice Park remarked that there is an “urgent need for recognising the binding force of precedents”. This decision later led to the establishment of the doctrine in the legal system of England and subsequently in India. In India, Article 141 of the Constitution recognises the doctrine of stare decisis. The doctrine of stare decisis establishes that the subordinate courts are bound to follow the decisions pronounced by the higher courts while dealing with cases with similar legal issues. Essentially, its aim is to promote and strengthen the binding nature of judicial precedents so that there can be certainty and stability in the application of the law and in deciding legal issues. Hence, one main function of the doctrine is to establish certainty and coherence. In the case of Minerva Mills v. Union of India (1980), the Supreme Court said that “certainty and continuity are the essential ingredients of the rule of law”. It remarked that, in case a longstanding precedent established by the Apex Court suddenly gets overruled, the application of law would be afflicted by uncertainty and confusion. However, certain judgements clarified what can be done in case a Bench does not agree with the decision of another Bench. In the case of Sheshamma v. Venkata Rao (1940), the Madras High Court held that if one Division Bench does not accept the decision of another pertaining to a question of law, then the matter should be referred to a Full Bench. This was reiterated again in the case of Yedlapat Venkateswarlu v. State of Andhra Pradesh (1978), where the High Court said that one Bench should not proceed to express contrary views to those of another Division Bench without referring the matter to a Full Bench first.
The doctrine of stare decisis is based on expediency and public policy. It is generally followed by all the courts, but it is not applicable in all cases, since sometimes if a wrong decision has been pronounced and the court is satisfied that it should not continue to be followed, it has to depart from its application. In Maktul v. Manbhari (1958), the Court held that if the validity or correctness of a decision is being challenged over and over again or has been reversed by the Privy Council itself, then the doctrine of stare decisis will no longer be applicable. The Supreme Court, in alignment with the views of Justice Cardozo, has emphasised that it should not engage in the rigid application of the doctrine of stare decisis and that there should be reformulation and sometimes even revocation of a certain rule if it does not suit or serve the social consciousness of the hour. Additionally, it is the duty of the judges to understand the need of the hour and interpret the rules accordingly.
Stare Decisis and Precedents
The apex court in the catena of cases stated that “ when a precedent is recognized for a long period of time it matures into a stare decisis. The Supreme Court explained “it is not everything stated by a Judge while pronouncing a judgment that constitutes a precedent, the only thing in the decision binding upon the lower courts or a party is a principle on which the case has been decided. Therefore for a reason, it is pertinent to analyze the decision and isolate it from the ratio decidendi. According to the well-settled principles of the law, there are three postulates that every basic decision can comprise. They are:
I. Finding the proper material facts, whether direct or inferential. An inferential finding of a particular fact which a judge draws from perceptible or direct facts.
II.The statements of the relevant principles of law which are stated applicable to legal principles disclosed by the facts.
III. The judgment stated is generally a combined effect of the above-stated postulates.
Moreover, in the case of ICICI Bank v. Municipal Corporation of Greater Bombay stated that the decision given by the apex court must be read in accordance with the context of the statutory provisions which have been interpreted by the competent court. It has been stated that no judgment can be read if it’s a statue. Moreover, the law cannot afford to be always static in nature. Therefore, based on the relevant principles the Judges must apply intelligent techniques in order to use the precedents.
High Court cannot overrule the Supreme Court’s Decision
In case of Suganthi Suresh Kumar v. Jagdeesham, the apex court of the country duly stated that it is impermissible for the High Court to overrule the decision given by the Supreme Court merely on the ground that the decision stated by the Supreme Court laid down principles without considering any of the legal points.
Moreover, in the Pandurang Kalu Patil v. State of Maharashtra, the supreme court had even stated that the decisions of the High court will be binding until and unless the Supreme Court overrules them.
Important Judgements
In the case of Director of Settlements, A.P. v. M.R. Appanrao wherein the apex court affirmed the decision stated in Shenoy & Co. case and accordingly stated merely because of the principles of Res Judicata has not been considered in any particular case, still, it could be relevant ground for reconsideration of the Judgement by the larger bench of the Supreme Court.
In the case of ICICI Bank v. Municipal Corporation of Greater Bombay it was stated that the decision given by the apex court must be read in accordance with the context of the statutory provisions which have been interpreted by the competent court. It has been stated that no judgment can be read if it’s a statute. Moreover, the law cannot afford to be always static in nature. Therefore, based on the relevant principles the Judges must apply intelligent techniques in order to use the precedents.
Moreover, in the Pandurang Kalu Patil v. State of Maharashtra the supreme court had even stated that decisions of the High court will be binding until and unless the Supreme Court overrules them.
in the case of Paramjit Kaur v. The State of Punjab went a step forward in order to expand the powers laid down under Article 141 of the Constitution. In order to enquire about the extrajudicial killings in the State of Punjab, the Supreme Court issued direction to the National Human Rights Commission. Therefore, the jurisdiction of such a Commission came into question in reference to the statutory limitations and obligations of the respective Commission. It was duly held by the apex court that the Supreme Court referred to the matter when referred to the commission when made in exercise of the plentitude of its appropriate jurisdiction. The apex court accordingly held that by its orders and directions it can confer jurisdiction on a particular body beyond the purview of the Jurisdiction.
In Vishaka v. State of Rajasthan, the accused was alleged of the offence of brutal gang rape of a social worker. The three-bench judge of the Supreme Court laid down relevant guidelines and norms as there was no enacted law related to effective enforcement of the basic human rights gender equality and also guarantee against sexual harassment. The court observed that norms and guidelines should be followed in workplaces in accordance with Article 141 of the Constitution. Further, the court has stated that the guidelines were declared under Article 141 of the Indian Constitution and its binding and enforceable in law, and suitable legislation accordingly to occupy the field.
In Mohd. Ahmed Khan v. Shah Bano Begum, it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court held after finding out what were the important rights of Muslim divorced women were not there properly in the original texts or any other material.
Lalu Jela and Ors. v. State of Gujarat (1962)
In this case, five accused appealed jointly to the High Court against their conviction by the Sessions Judge under Section 410 of the CrPC. Section 419 specifies that appeals should be in the form of a written petition, and under Section 431, these appeals are to be made separately by different accused persons. Section 419 and related provisions allow for only separate appeals of the accused and not joint appeals; however, a previous Division Bench ruled that multiple convicted persons can file a single joint appeal, and this rule is being contested here. Thus, the question in this case pertains to whether multiple convicted individuals should file separate appeals or a joint appeal and whether the observations of the Supreme Court are a declaration of law binding on all the subordinate courts under Article 141 of the Constitution. The Court observed that the interpretation of the Division Bench allowing joint appeal was inconsistent with the principles established by Section 419. The Division Bench’s decision conflicted with the legal provisions of the CrPC, and emphasised on the binding nature of the Supreme Court’s decisions under Article 141 of the Constitution, and dismissed the validity of filing joint criminal appeals in this case.
D. Navinchandra & Co. v. Union of India (1989)
It was held that any judgement of the Supreme Court cannot, as such, be taken as a precedent. In this case, the issue placed before the Bombay High Court was whether a judgement pronounced by the Supreme Court in which it made an observation saying that it should not be treated as a precedent due to having unique facts and circumstances, even if issues might be similar, should be considered binding or not. The High Court of Bobay ruled that even though there is such an observation made by the SC in the judgement, the facts and circumstances of both cases are similar, hence its decision would still be treated as a precedent.
Shankar Raju v. Union of India (2011)
In this case, the petitioner, who was a judicial member of the Central Administrative Tribunal, seeks relief under Article 32. He had already completed two terms of five years each and had re-applied for the same position due to the vacancy. But his application was rejected as he had already completed his tenure of 10 years; this ground for rejection was challenged by the petitioner. The Administrative Tribunals Act, 1985, was amended in 2006, which limited the total term of a member. But in the case of A.K. Behera v. Union of India (2010), two judges upheld the validity of the amendment while one judge concluded it to be unconstitutional and arbitrary. The Court upheld the decision in the previous case and the constitutionality of the provision limiting the tenure. It held that the precedents apply to the current case and that the provisions do not undermine the security of tenure.
Recent judgments
Proteck India Info Services Pvt. Ltd. v. Commissioner, CGST, & Central Excise, New Delhi (2021)
In this case, the appellant was an exporter of taxable services and also received various services for which they paid taxes and took credit. However, they could not use their cenvat credit because their exports were not taxable; hence, he filed for a refund. But the appellant received a cause notice reasoning that he had not debited the refund claim amount from their cenvat credit at the time of filing, thereby not fulfilling the condition laid out in No. 2(h) of the notification. The central issue in this case revolves around the question of whether it was valid on the part of the Commissioner to reject the refund claim due to the appellant’s failure to debit at the time of filing. The tribunal held that the Commissioner had misinterpreted the rule by ignoring the ruling of the Supreme Court in the case of Hari Chand Shri Gopal & Ors (2010). and disregarded the principle of substantial compliance laid out by the Supreme Court in that decision, hence violating Article 141. The action of the Commissioner was held to be a form of judicial indiscipline and a violation of Article 141 of the Constitution. Therefore, the Commissioner’s action was held to be incorrect, and the appeals were allowed.
R. Anitha & Ors. v. State of Telengana & Ors. (2019)
The petitioners were about to join the Telangana State Judicial Service as Junior Civil Judges. However, their eligibility was challenged under Rule 5(2)(a)(i) of the Telangana State Judicial Service Rules of 2017 along with a notification issued by the Registrar (Administration) of the High Court of Telangana. The petitioners argued that the rule and notification directed that they must have a minimum of three years experience as practising advocates, but the Supreme Court, in its judgement in All India Judges Association v. Union of India (2002), declared this rule to be unconstitutional. The respondents contended that Article 235 of the Constitution granted the High Court the authority to prescribe eligibility criteria for the recruitment of judges. However, the High Court of Telangana upheld the contentions of the petitioner and decided that all the courts were duty bound to follow the decisions taken by the SC under Article 141; hence, the imposition of the Rule by the Bar was held invalid and unconstitutional.
Suggestions
- The doctrine of precedent as recognized under the constitution is an instrument of certainty, creativity, and predictability of Judicial interpretation of the statue, but while overruling its own decisions the courts need to be more cautious.
- That the High Court acts as an intermediary between Supreme court and the subordinate courts needs to be more careful that their decisions must be in accordance with the decisions of the Supreme Court and should act with utmost care that their decisions should not be reversed in the Supreme Court as it affects lot many cases decided in the lower court relying on the decisions of the High Court.
- The High Court must not take a different view from the view taken by their counterparts in other states, this persuasive value attached to the precedents needs to be minimized bypassing decisions at High Court taken into account passed by the other High Courts.
- Minimum accountability should be fixed on the Judges and advocates of the lower court and subordinate court who failed to bring out to the notice of the court or who passes the order in ignorance of the law laid down by the Supreme Court of India.
- While deciding cases, reportable judgment, the Supreme Court should also specifically write the ratio of the cases.
- The very recognition of the principles of the sub-silento and per-incuriam gives liberty to the superior courts to pass the orders carelessly, the recognition of these principles must be challenged by the supreme court itself.
- While differentiating with the earlier decision, the Court must not partially overrule a judgment but must decide on all the aspects a fresh one, this will result in completely overruling the judgment and there will be no place for any confusion. No partial overruling should be done.
- Taking into account the decisions of the international courts while developing principles of jurisprudence in the country is good for the continuous growth of the judiciary but this should be done in a predetermined manner. The authority attached to the decisions of international forums and Courts should be declared in advance.
- The law laid down under Article 141 of the Constitution is no less important than the law laid down by the parliament that should be scrupulously observed by the executive wing of the state. Thus, I would like to conclude with the words of Chandrachud. C.J. said in Deena v. Union of India “Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done, mechanically, that is, without a close examination of the rationale of the decision cited by the precedent”.
Conclusion
The doctrine of precedents as recognized under Article 141 of the Constitution of India is weakened in India as many decisions of the Supreme Court of India are overruled by the same court, by the larger bench or even the bench of equal strength, in some cases. Further, the decisions of a High Court which act as a binding precedent to all the subordinate courts within the same state in which the said High Court is designated.
The decisions of the High Courts in many cases have been reversed by the Supreme Court in appeal or in its extraordinary jurisdiction. The decision of one High Court is only persuasive in nature for the other High Courts that encourages the High Court to have different opinions on a similar situation or on the laws with part material.
Moreover, there is no mechanism that assures the strict adherence and compliance of the law as laid down by the Supreme Court under Article141. If the judge is to be bound by precedents he should have all the relevant authorities at his command. The ignorance of the subordinate Court has resulted in injustice to many poor litigants who do not afford to go in appeal.
The Backbone of Judiciary is already at stake due to the pendency of cases in India, more particularly on subordinate courts and decisions in ignortia ( per incuriam ) is adding to the woes of the poor litigant.
The plea of decision, sub-silento, and per-incuriam is used by the superior courts to avoid blame and liability in case of contradictory judgments by the courts of equal authority. Moreover, Overruling in part, and retaining in part is another confusing phenomenon wherein courts relook into law points decided in earlier judgment and differentiate its own decision.
The decisions of the international courts are taken into account while developing new and old principles of jurisprudence. The observations/directions issued by the Supreme Court in a Judgment are not the ‘law declared by the Supreme Court’ under Article 141 of the constitution of India, such directions are issued in exercise or powers under Article 142 of the Constitution. The recognition of the doctrine of precedents is essential for ensuring certainty, continuity, and predictability of the law of the land.
Frequently Asked Questions (FAQs)
What is the main difference between ratio decidendi and obiter dicta?
Ratio decidendi is the binding part of a court’s judgement, which consists of essential legal principles that other courts must follow in future decisions. It is the reasoning that forms the basis for the court’s decisions. Whereas, obiter dicta are miscellaneous remarks that provide insights into the judge’s views and opinions on a related matter or hypothetical situation.
What happens if the courts ignore precedents?
Precedents are required to be followed to maintain the certainty of the application of legal principles while deciding cases. If the courts start ignoring precedents, it can disrupt the consistency and predictability of legal decisions. There will be constant appeals and challenges to the court’s decision, which might cause a lot of confusion in the legal system. Further disregarding precedents without proper justifications would lead to the loss of the Court’s credibility and trust among the public.
What are the factors that increase or strengthen the authority of precedents?
There are a number of factors that contribute to increasing the authority of precedents. The number of judges in a Bench and their eminence are important factors. If the decision was given unanimously by the Bench or has been affirmed by other courts many times, then that further adds weight to the authority of the precedent. Further, if a law is enacted subsequently following the precedent, that also strengthens its authority. Additionally, time also plays a role here. If a precedent has been followed for a very long period of time, it increases its authority.
References
- Jurisprudence and Legal Theory, Dr. V.D Mahajan
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