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8/12/2019 Doctrine of Judical Precedent in India Written by j s Rajawat
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DOCTRINE OF JUDICAL PRECEDENT IN INDIA
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DOCTRINE OF JUDICAL PRECEDENT IN INDIA( with special reference to circumstance weakening binding force of precedent)
1J S Rajawat
INTRODUCTIONIt is Endeavour of any civilized society to be
governed by rule of law and which necessarily requires Law.
Precedents have been recognized as one of the source of law.
Judges make law is now acknowledge concept. Important limb of
Rule of Law is the even application of laws and by following
precedents this object of Rule of Law is also achieved2 But the
recent Judgment in Anil kumar v/s M K Aiyappa3 has
weakened the credibility of judicial precedent by holding thatmagistrate can not direct for registration of FIR agains public
servants without sanction in view of bar contained in section 197
of I P C and section 19 of PC Act 1988 is against the judgment of
state of Karanataka v/s P P Raju4in which this issue was decided
but without considering the above judgment of co-equal bench
give a irrational judgment which is totally against the age old
concept of judicial ethics, discipline and judicial propriety and this
judgment is sure to be reversed by supreme court in coming days.Such type of decisions lower down the dignity of judicial
precedent . In order to understand the increasing weakening
circumstance of judicial precedents in India it will be better to
understand the meaning and concept of judicial precedent
prevailing in the country.
WHAT IS MEANT BY A PRECEDENT?
In the language of a layman the termprecedent implies that what was done before should be done
1Advocate & Spl. P P ,C B I Email jsrajawat53@gmail.com2AIR 1988 SC 132532014Cr. L J Page 142006 Cr.L.J 4045
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again the same way. The method adopted in any problem solving
exercise is to find out if a similar problem has been tackled before.
If yes, then the next step is to find out the degrees of similarity that
exists between the problems. If the similarities are found to be
significant then next it needs to be analyzed whether the sameprinciple that was applied to the previously solved problem can be
applied successfully to solve the problem at hand. This way the
precedent works as an effective guide to solve new problems
having similarity with the earlier one. This helps in achieving
consistency and certainty in legal matters. And the corollary of this
situation is that people making decisions are often afraid to do
something new and striking in case it creates a precedent5 In
view of that in The Government of India Act, 1935,Section 212provided for the binding nature of the decisions of the Federal
Court and the Privy Council upon all Courts, and after
independence doctrine of precedents received Constitutional
recognition under Article141 of the Constitution of India while
providing that the law declared by the Supreme Court shall be
binding on all courts and tribunals within the territory of India.
The law laid down by the Supreme Court is binding on all Courts
and tribunals of the Country.
WHAT IS THE BINDING ELEMENT OF A CASE
Every judgment contains four major elements:
statement of material (relevant) facts
statement of legal principle(s) material to the decisionthe ratiodecidendi /stare decisis
5. In the words of a renowned legal philosopher and Scottish politician, MacCormick:
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discussion of legal principles raised in argument but not materialto the decisionobiter dicta
the decision or verdict
Ordinarily, a court will decide only the questions necessary for
determining the particular case presented. But once a court
acquires jurisdiction, all material questions are open for its
decision; it may properly decided all questions so involved, even
though it is not absolutely essential to the result that all should be
decided. It may, for instance, determine the question of the
constitutionality of a statute, although it is not absolutely necessaryto the disposition of the case, if the issue of constitutionality is
involved in the suit and its settlement is of public importance. An
expression in an opinion which is not necessary to support the
decision reached by the court is dictum or obiter dictum is
distinguished from the holding of the court in that the so- called;
law of the case & does not extend to mere dicta, and mere dicta arenot binding under the doctrine of stare decisis,
As applied to a particular opinion, the question of
whether or not a certain part thereof is or is not a mere dictum is
sometimes a matter of argument. And while the terms; dictum;
obiter dictum; are generally used synonymously with regard to
expressions in an opinion which are not necessary to support the
decision, in connection with the doctrine of stare decisis, a
distinction has been drawn between mere obiter and ;judicial dicta;
the latter being an expression of opinion on a point deliberately
passed upon by the court,
In applying the doctrine of stare decisis, a distinction is
made between a holding and a dictum. Generally stare decisis does
not attach to such parts of an opinion of a court which are mere
dicta. The reason for distinguishing a dictum from a holding has
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been said to be that a question actually before the court and
decided by it is investigated with care and considered in its full
extent, whereas other principles, although considered in their
relation to the case decided, are seldom completely investigated as
to their possible bearing on other cases. 6
It is not the entire judgment that is binding on the lower courts
but only the ratio decidendi. The ratio decidendi of a case is the
underlying principle or legal reason on which the result of the case
depends. This ratio is different from the obiter dicta which is not
held to be binding but may be regarded as having persuasive
control. And what we are concerned with is not who won or lost
but the legal principles that can be extracted from the case which isknown as the ratio decidendi. In the words of the Supreme Court:
A decision is binding not because of its conclusion but in
regard to its ratio and the principle laid down therein.
It is well settled that obiter dictum is a mere observation or remark
made by the court by way of aside while deciding the actual issue
before it. The mere casual statement or observation which is not
relevant, pertinent or essential to decide the issue in hand does not
form the part of the judgment of the Court and have noauthoritative value. The expression of the personal view or opinion
of the Judge is just a casual remark made whilst deviating from
answering the actual issues pending before the Court. These casual
remarks are considered or treated as beyond the ambit of the
authoritative or operative part of the judgment.7
In Arun kumar agarwals case, the supreme court has held that in
in the facts and circumstances of the present case, we are of the
opinion that the refusal of the learned Special Judge, vide its Order
dated 26.4.2005, to accept the final closure report submitted by
Lokayukta Police is the only ratio decidendi of the Order. The
6American jurisprudence 2d,Vol.20, at page 4377Arun kumar Agarwal 2011 Cr L J 4935
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other part of the Order which deals with the initiation of Challan
proceedings cannot be treated as the direction issued by the learned
Special Judge. The relevant portion of the Order of the learned
Special Judge dealing with Challan Proceeding reads asTherefore
matter may be taken up seeking necessary sanction to prosecute theaccused persons Raghav Chandra, Shri Ram Meshram and
Shahjaad Khan to prosecute them under Section 13 (1-d), 13 (2)
Anti Corruption Act and under Section 120-B I.P.C and for
necessary further action, case be registered in the criminal case
diary. The wordings of this Order clearly suggest that it is not in
the nature of the command or authoritative instruction. This Order
is also not specific or clear in order to direct or address any
authority or body to perform any act or duty. Therefore, by nostretch of imagination, this Order can be considered or treated as
the direction issued by the learned Special Judge. The wholistic
reading of this Order leads to only one conclusion, that is, it is in
the nature of `Obiter Dictum' or mere passing remark made by the
learned Special Judge, which only amounts to expression of his
personal view. Therefore, this portion of the Order dealing with
Challan proceeding, is neither relevant, pertinent nor essential,
while deciding the actual issues which were before the learned
Special Judge and hence, cannot be treated as the part of the
Judgment of the learned Special Judge.8
The principle of stare decisis can be divided into two components
or principles:
The first is the rule that a decision made by a higher court is
binding precedent which a lower court cannot overturn. The
second is the principle that a court should not overturn its own
precedents unless there is a strong reason to do so and should be
guided by principles from lateral and lower courts. The second
8 Arun kumar agarwal (Supra)
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principle is an advisory one which courts can and doesoccasionally ignore.
Basically, under the doctrine of stare decisis, the decision of a
higher court within the same provincial jurisdiction acts as bindingauthority on a lower court within that same jurisdiction. The
decision of a court of another jurisdiction only acts as persuasive
authority. The degree of persuasiveness is dependent upon various
factors, including, first, the nature of the other jurisdiction. Second,
the degree of persuasiveness is dependent upon the level of court
which decided the precedent case in the other jurisdiction. Other
factors include the date of the precedent case, on the assumption
that the more recent the case, the more reliable it will be asauthority for a given proposition, although this is not necessarily
so. And on some occasions, the judges reputation may affect thedegree of persuasiveness of the authority.
9
What the doctrine of precedent declares is that cases must be
decided the same way when their material facts are the same.
Obviously it does not require that all the facts should be the same.
We know that in the flux of life all the facts of a case will never
recur, but the legally material facts may recur and it is with thesethat the doctrine is concerned.
The ratio decidendi [reason of deciding] of a case can be defined as
the material facts of the case plus the decision thereon. The same
learned author who advanced this definition went on to suggest a
helpful formula. Suppose that in a certain case facts A, B and C
exist, and suppose that the court finds that facts B and C are
material and fact A immaterial, and then reaches conclusion X
(e.g. judgment for the plaintiff, or judgment for the defendant).
Then the doctrine of precedent enables us to say that in any future
case in which facts B and C exist, or in which facts A and B and C
exist the conclusion must be X. If in a future case A, B, C, and D
9Glanville Williams in Learning the Law (9th ed. 1973),
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exist, and the fact D is held to be material, the first case will not bea direct authority, though it may be of value as an analogy.
For stare decisis to be effective, each jurisdiction must have one
highest court to declare what the law is in a precedent-setting case.In India, The Supreme Court of India is the supreme authority in
legal matters as it is the highest judicial body and the cases decided
by it form the precedent for all the other courts in India; it includes
the High Courts, district courts and the other lower courts. The
Supreme Courts serves as the precedential body, resolving
conflicting interpretations of law. Whatever this court decidesbecomes judicial precedent.
Thus, what is to be ascertained from reading of the whole
judgment is as to what is the principle of law which has been laid
down in the decision. It is necessary to ascertain the rationale of
the judgment on the point of law. it has been observed that it has to
be ascertained as to what principle has been laid down inthe
judgment, in context with the question involved and stray
sentences and words do not constitute a precedent10
.
As general rule a decision of Bench
consisting of larger number ofJudges prevails over the decisionrendered by a Bench of lesser number of Judges. Even in a case
where there may be a later decision but a decision rendered earlier
on the point by a Bench consisting larger number of Judges have
the binding effect.11
So far decisions of High Courts are concerned,
they have binding effect within the State and the decisions of the
High Courts of other States have on persuasive force. The High
Court while deciding a matter, if faced with decisions of its own
High Court of co-equal number of Judges, taking irreconcilableview on the point. the proper course is to refer the matter to larger
Bench as this alone Is considered to be appropriate. The difficult
however, is often faced by the Courts when two decisions of the
101992(4)SCC 36311AIR 1974 SC 1596
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Benches of the higher court consisting of co- equal number of
Judges are cited on one point and the two decisions cannot be
reconciled. The view which is coming down since long has been
that the later decision will have the binding effect as it would be
taken that the earlier view stands impliedly over-ruled by the laterdecision.
The view which is being now taken is that a decision which is
better on point of law should be preferred. The rationale behind the
later view is that fortuitous chance of point of time has no
relevance and it should not be the deciding factor as to which case
should be followed. That when the Court which is faced with two
contrary views on one point decided by Benches of co-equal
number of Judges, must find out, which of the two views, is betteror more accurate on point of law and that should be followed. But
there seems to be adrift in the view that the later decision will have
binding effect. The view which is being now taken is that a
decision which is better on point of law should be preferred. The
rationale behind the later view is that fortuitous chance of point of
time has no relevance and it should not be the deciding factor as to
which case should be followed. held that the Court which is faced
with two contrary views on one point decided by Benches of co-
equal number of Judges, must find out, which of the two views, is
better or more accurate on point of law and that should be
followed.
An excerpt view from the Constitutional Law of India by Seervai
in this regard as follows:
"...But judgment of the Supreme Court, which cannot stand
together, present a serious problem to the High Courts and
subordinate Courts. It is submitted that in such circumstances the
correct thing is to follow that judgment which appears to the Courtto state the law accurately or more accurately than the other
conflicting judgment."12
The position that emerges, in view of
some later decisions of some of the High Courts, indicated above,
12Constitutional law of India by Seervai
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is that presently it is the task of the lower Court to find out which
of the two conflicting decisions of the higher Court is more
accurate on the point of law and to follow the same. Possibility of
different views as to which of the two judgments is more accurate
on point of law .13
CIRCUMSTANCES WEAKENING THE BINDING FORCE
OF PRECEDENTS.
1. ABROGATED DECISIONS: A decision ceases to be binding if
a statute or statutory rule is inconsistent with it is subsequently
enacted or if it is reversed or overruled by a higher court.
2. I GNORANCE OF STATUTE: A precedent is not binding if itwas rendered in ignorance of a statute or rule having the force of
statute i.e. delegated legislation. Such decisions are per incuriam
and not binding . The mere fact that the earlier court
misconstrued a statute or ignored a rule of construction is no
ground for impugning the authority of precedent. It is clear law
that a precedent loses its binding force if the court that decided it
overlooked an inconsistent decision of a higher court . Such
decisions are also per incuriam. A court is not bound by its owndecision that is in conflict with one another. If the new decision is
in conflict with the old, it is given per incuriam and is not binding
on later courts. In this circumstances the rule is that where there
are previous inconsistent decisions of its own , the court is free to
follow either i.e. earlier or later.
To come within the category of per incuriam it must be shown not
only that the decision involved some manifest slip or error but also
that to leave the decision standing would be likely, inter alia, toproduce serious inconvenience in the administration of justice or
significant injustice to citizens.
13Article by Justice Brijesh Kumar
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Sibbia's case (supra). The decisions of this Court in Salauddin
Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K.
L. Verma v. State and Another (1998) 9 SCC 348, Adri Dharan
Das v. State of West Bengal (2005) 4 SCC 303 and Sunita Devi v.
State of Bihar and Another (2005) 1 SCC 608 are in conflict withthe above decision of the Constitution Bench in Sibbia's case
(supra). He submitted that all these orders which 19 are contrary
to the clear legislative intention of law laid down in Sibbia's case
(supra) are per incuriam. He also submitted that in case the
conflict between the two views is irreconcilable, the court is bound
to follow the judgment of the Constitution Bench over the
subsequent decisions of Benches of lesser strength. 33. He placed
reliance on N. Meera Rani v. Government of Tamil Nadu andAnother (1989) 4 SCC 418 wherein it was perceived that there was
a clear conflict between the judgment of the Constitution Bench
and subsequent decisions of Benches of lesser strength. The Court
ruled that the dictum in the judgment of the Constitution Bench has
to be preferred over the subsequent decisions
He also placed reliance on Union of India and Others v. K. S.
Subramanian (1976) 3 SCC 677 and State of U.P. v. Ram Chandra
Trivedi (1976) 4 SCC 52 and submitted that in case of conflict, theHigh Court has to prefer the decision of a larger Bench to that of a
smaller Bench. Mr. Jethmalani submitted that not only the
decision in Sibbia's case (supra) must be followed on account of
the larger strength of the Bench that delivered it but the subsequent
decisions must be held to be perincuriamand hence not binding
since they have not taken into account the ratio of the judgment of
the Constitution Bench. He further submitted that as per the
doctrine of `per incuriam', any judgment which has been passedin ignorance of or without considering a statutory provision or a
binding precedent is not good law and the same ought to be
ignored. perusal of the judgments in Salauddin Abdulsamad
Shaikh v. State of Maharashtra, K. L. Verma v. State and Another,
Adri Dharan Das v. State of West Bengal and Sunita Devi v. State
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of Bihar and Anotherlaid down in para 42 by the Constitution
Bench that the normal rule is not to limit operation of the order of
anticipatory bail, was not taken into account by the courts passing
the subsequent judgments. The observations made by the courts in
the subsequent judgments have been made in ignorance of andwithout considering the law laid down in para 42 which was
binding on them. In these circumstances, the observations made in
the subsequent judgments to the effect that anticipatory bail should
be for a limited period of time, must be construed to be per
incuriamand the decision of the Constitution Bench preferred. He
further submitted that the said issue came up for consideration
before the Madras High Court reported in Palanikumar and
Another v. State 2007 (4) CTC 1 wherein after discussing all thejudgments of this court on the issue, the court held that the
subsequent judgments were in conflict with the decision of the
Constitution Bench in Sibbia's case (supra) and in accordance with
the law of precedents, the judgment of the Constitution Bench is
biding on all courts and the ratio of that judgment has to be
applicable14
In State of Bihar v. Kalika Kuer @ Kalika Singh and others AIR
2003 SC 2443 this Court held that when an earlier decision mayseems to be incorrect to a Bench of a coordinate jurisdiction
considering the question later, on the ground that a possible aspect
of the matter was not considered or not raised before the Court or
more aspects should have been gone into by the Court deciding the
matter earlier but it would not be a reason to say that the decision
was rendered per incuriam and liable to be ignored. The earlier
judgment may seem to be not correct yet it will have the binding
effect on the latter bench of coordinate jurisdiction. The Court heldthat easy course of saying that earlier decision was rendered per
incuriamis not permissible and the matter will have to be resolved
only in two wayseither to follow the earlier decision or refer the
14Sissharam S Mehetra v/s State 2010 SC
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matter to a larger Bench to examine the issue, in case it is felt that
earlier decision is not correct on merits. In this respect reference
may also be made15
3 SUB SILENTIO: Precedents sub silentio or not argued: A
decision passes sub silentio when the particular point of law
involved in decision is not perceived by the court or present to its
mind. When a decision is on point A upon which judgement is
pronounced but there was another point B on which also court
ought to have pronounced before deciding he issue in favour of the
party, but that was not argued or considered by the Court. In such
circumstances although point B was logically involved in thefacts and although the case had a specific out come , the point B is
said to pass sub silentio.[ Gerard v/s Worth of Pipers Ltd (1936) 2
All. E R 905(A) ] . It is rightly said that an hundred precedent sub
silentio are not material. Where a judgement is given without the
losing parties having been represented , there is no assurance that
all the relevant consideration have been brought to the notice of the
court and consequently the decision ought not be regarded as
absolute authority even if it does not fall within sub silentio rule. A
precedent is not destroyed merely because it was badly argued ,inadequately considered and fallaciously reasoned. Total absence
of argument vitiates the precedent. A decision is an authority only
for what it actually decides and not for what may logically or
remotely follows from it. Decision on a question which has not
been argued cannot be treated as precedent.M/s. Goodyear India
Ltd. v. State of Haryana and another, AIR 1990 SC 781: 1990(2)
SCC 71: 1989 Supp. (1) SCR 510: 1989(2) Scale 982When
observation of the court on a question about validity of a statutoryprovision which was neither raised nor argued would not be a
binding precedent.Rajpur Ruda Meha and others v. State of
Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677.
15GL Batra v/s Haryana 2013 SC
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judgment it is for the Government to take a decision relating to the
number of seats and not the Committee constituted by the State
Government. The further submission of the learned Counsel for the
petitioner is that only NCTE has got power to regulate the
admission and not the Government or its Committee. According topetitioner's Counsel the judgment of Allahabad High Court in Writ
Petition No. 36619 of 2004, Association of Professional Colleges
and Ors. v. State of Uttar Pradesh and Anr. and other connected
petitions decided on 21.12.2004 is per-incuriam to apex Court
judgment and sub-silentioillegal.16
5. DISTINGUISHING:A binding precedent is a decided case
which a court must follow. But a previous case is only binding in alater case if the legal principles involved is the same and the facts
are similar. Distinguishing a case on its facts, or on the point of
law involved, is a device used by judges usually in order to avoid
the consequences of an earlier inconvenient decision which is, in
strict practice, binding on them.
If a Court deems fit to follow a precedent of a superior court the
proper course , in such a case, is to try to find out and follow the
opinions expressed by larger benches of SuperiorCourt in themanner in which it had done this. The proper course for a Court , is
to try to find out and follow the opinions expressed by larger
benches of superior Court in preference to those expressed by
smaller benches of the Court. If, however, the Court was of
opinion that the views expressed by larger benches of this Court
were not applicable to the facts of the instant case it should say so
giving reasons supporting its point of view.17
Apex Court is bound by its earlier
decisions. It is only when the Supreme Court finds itself unable to
162005(3) ESC 216217Union of India and another v. K.S. Subramanian, AIR 1976 SC 2433;
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accept the earlier view, it shall be justified in deciding the matter in
a different way.18
6. OVERRULING: A higher court can overrule a decision made in
an earlier case by a lower court eg. the Court of Appeal canoverrule an earlier High Court decision. Overruling can occur if
the previous court did not correctly apply the law, or because the
later court considers that the rule of law contained in the previous
ratio decidendi is no longer desirable. The overruling is
retrospectively except as regards matters that are res judicata or
accounts that have been settled in the meantime.
The Apex Court or any superior court cannot allow itself to be tied
down by and become captive of a view which in the light of the
subsequent experience has been found to be patently erroneous,
manifestly unreasonable or to cause hardship or to result in plain
iniquity or public inconvenience. The Court has to keep the
balance between the need of certainty and continuity and the
desirability of growth and development of law. It can neither by
judicial pronouncements allow law to petrify into fossilized
rigidity nor can it allow revolutionary iconoclasm to sweep away
established principles. On the one hand the need is to ensure thatjudicial inventiveness shall not be desiccated or stunted, on the
other it is essential to curb the temptation to lay down new and
novel principles in substitution of well established principles in the
ordinary run of cases and the readiness to canonize the new
principles too quickly before their saintliness has been affirmed by
the passage of time. It may perhaps be laid down as a broad
proposition that a view which has been accepted for a long period
of time should not be disturbed unless the Court can say positivelythat it was wrong or unreasonable or that it is productive of public
hardship or inconvenience.19
Decision of Full Bench of High Court
18Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC 623.
19AIR 1974 SC 2009
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passed after considering the local conditions and history should not
be easily disturbed.20
7. REVERSING:. Reversing is the overturning on appeal by a
higher court, of the decision of the court below that hearing theappeal. The appeal court will then substitute its own decision.
8. CONCESSION: Concession made by counsel on a question of
law is not binding as precedent.21
9.CONSENT: When a direction or order is made by consent of
the parties, the Court does not adjudicate upon the rights of the
parties nor lay down any principle.22
10. NON SPEAKI NG ORDER: Non speaking order dismissing
special leave petition would not constitute binding precedent as to
the ratio of the High Court involved in the decision against which
special leave petition to appeal was filed.23
the law can be laid
down that court must give reasons for reaching conclusion. the
judgment of court below do not comply with the requirement of
statutory provisions as laid down in Cr.P.C.the court ought not to
have given defective and cryptic judgment. In fact it is nojudgment in eye of laws.24
11.SPECIF IC EXCLUSION:A judgment stating therein itself that
the ratio laid down there in shall not be binding precedent or shall
not be followed or relied upon , can not be treated as binding
precedent.25
20AIR 1991 SC 1134
21AIR 1987 SC 2381: State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC 357.
22Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38
23Ajit Kumar Rath v/s State of Orissa (1999) 9 SCC 596.
24Premkumar v/s State of Punjab 2013 Cr.L.J. 2973
25Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437.
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12 .ON FACTS: If a judgment is rendered merely having regard to
the fact situations obtaiing therein , the same could not be
declaration of law within meaning of Article 141.26
There is
nothing in the Constitution which prevent the Supreme Court from
the reversing its previous decision27. An earlier decision cannot bedeparted unless there are extra-ordinary or special reasons for
doing so.
Non-consideration for foreign decisions. The decision of
Constitution Bench which held the field a quarter of century
without challenge. Reconsideration on account of non-
consideration of an American decision, not cited before the bench,
is not called for.
28
Thus , one of the tools of an Advocate to persuade a Court on the
point canvassed before it, that is to cite a binding precedent, is not
always without limitations and it has to be an endevour of every
advocate to perform an exercise to find out the ratio decidendi of a
judgement and its relevancy to the proposition put before the court
in the context of the facts of the case, before the same is quoted.
PRINCIPLES OF PROSPECTIVE OVERRULING
Prospective overruling implies that an earlier decision of the same
issue shall not be disturbed till the date of the later judgement. It is
resorted to mould relief claimed to meet the justice of the case. It
means that relief though the Petitioner may be entitled to in law
because of interpretation of the law made by the Supreme Court,
the same shall not be applicable to past transactions. Frequently
such situations arise in service matters or tax matters where in the
person already appointed for a long time based on interpretation ofa law by the Apex Court in its earlier judgment , but the same is
overruled in the later judgement, and therefore the person already
26UP State Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 58627AIR 1967 SC 997,41028AIR 1986 SC293, AIR 1971 SC 2313
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in public employment need not be directed to vacate the post or the
tax already imposed and collected is not directed to be refunded.
In normal course, a law declared by
supreme court is the law assumed to be from the date ofinception and prospective overruling is only an exception when the
Supreme Court it self make the applicability of the ration of the
judgment prospectively to do complete justice to the parties or to
avoid chaos. It is therefore necessary that if a law is to be made
applicable prospectively, the same is required to be so declared in
the judgment when it is delivered29
. If Supreme Court does not
exercise such discretion to hold that the law declared by it would
operate only prospectively, High Court can not of its own do so
ADVANTAGES AND DISADVANTAGES OF THE
DOCTRINE OF JUDICIAL PRECEDENTS
There are both advantages and disadvantages in following the
method of precedents in deciding cases.
The most significant advantage is the element of consistency and
certainty that is brought in with the application of precedents. Agood decision making process must be consistent. Similar cases
must be decided similarly to avoid inconsistency. Consistency is
perhaps the most important advantage claimed for the doctrine of
judicial precedent. It may also allow persons generally to order
their affairs and come to settlements with a certain amount of
confidence. The interests of justice also demand impartiality from
the judge. In this method the Judges have clear cases to follow.
This is assured by the existence of a binding precedent, which he
must follow unless it is distinguishable. If he tries to distinguish anindistinguishable case his attempt will be obvious. And hence this
method ensures impartiality from the judge. Case law is practical
in character. It is based on the experience of actual cases brought
29M.A.Murthy v/s State of Karnataka (2003) 7 SCC 517.
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before the courts rather than on logic or theory. Case laws are
viable statute law and the rules and principles are derived from
everyday life. This means that it should work effectively and be
intelligible and is thus practical. It removes any element of
ambiguity regarding the authority of the binding precedents andenables lower courts to follow the decisions of higher courts
unanimously. The making of law in decided cases offers
opportunities for growth and legal development, which could not
be provided by Parliament. The courts can more quickly lay down
new principles, or extend old principles, to meet novel
circumstances. There has built up over the centuries a wealth of
cases illustrative of a vast number of the principles of English law.
Also the hierarchy of the courts ensures that lower courts followhigher courts and this leads to an orderly development of law. It is
also a convenient timesaving method. If a problem has already
been answered, it is natural to reach the same conclusion by
applying the same principle. It also helps save unnecessary
litigation. The existence of a precedent may prevent a judge
making a mistake that he might have made if he had been left on
his own without any guidance. The doctrine of precedent may
serve the interests of justice. It would be unjust to reach a different
decision in a similarly situated case.
The most evident disadvantage of this method is the rigidity it
confers on the development of law. The doctrine of stare decisis is
a limiting factor in the development of judge-made law. Practical
law is founded on experience but the scope for further experience
is restricted if the first case is binding. The cases exemplify the law
in great detail, therein lies another weakness of case law. It is in
bulk and its complexity makes it increasingly difficult to find thelaw. There are so many cases that it is hard for judges to find
relevant cases and the reasoning may not be clear. The
convenience of following precedent should not be allowed to
degenerate into a mere mechanical exercise performed without any
thought. Judicial mistakes of the past are perpetuated unless bad
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decisions happen to come before the court of appeal for
reconsideration. A system that was truly flexible could not at the
same time be certain because no one can predict when and how
legal development will take place. However, the advantage of
certainty is lost where there are too many cases or they are tooconfusing. The overruling of an earlier case may cause injustice to
those who have ordered their affairs in reliance on it. Precedent
may produce justice in the individual case but injustice in the
generality of cases. It would be undesirable to treat a number of
claimants unjustly simply because one binding case had laid down
an unjust rule.
CONCLUSION
Lord Halsbury has said that there is more to the law than a
mechanical process of logical deduction. It is obvious that the
Judge has in every case to decide for himself which of the
circumstances of the alleged precedent were relevant to the
decision and whether the circumstances of his own case are in their
essentials similar. Once he has decided which principle to apply, a
bit of logic may enter into his application of principles. But there
cannot always be a principle which imposes itself or an absolutelyinescapable logical deduction. Generally there is a choice. And this
has been explained by Chandrachud, C.J. in Deena v. Union of
India as 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 as a
precedent.
However, it must be conceded that stare decisis is only a part of
this topic. There is much more. There are substantive rules for the
interpretation of statutes, there are unique considerations when
principles of the law of equity are involved and problems caused
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by the evidentiary rules of onus of proof. Yet, while the multitude
of these rules provides the lawyer with a large variety of other
tools and techniques for legal reasoning and legal argument, it also
has to be conceded that stare decisis continues to play the pivotal
role. The great American judge, Oliver Wendell Holmes Jnr, hadsaid The life of the Law has not been logic; it has been
experience. It can be concluded that for an organized and orderly
development of law the method of using judicial precedents is
inevitable.
J S Rajawat, Advocate
SPL. P P , C B I