Law of Precedents - Adv Shweta Sharma

                                                                                                                                                            

Justice Dr. B S Chauhan once in his lecture on the Law of Precedents quoted Mahabharat, when he said “Mahajano yen gatah Sa Panthaah”, which translates to “that path is right path which has been followed by the virtuous men”. He further added that Law of Precedents is based on this very theory. Precedents, as is obvious from its literal meaning, are previous instances upon which the legal principles are modeled.

The Courts of England in medieval times were entrusted with the responsibility of laying down the Law through interpretation of various customs and usage. They became the fountainhead of the legal principles in the absence of any codified Law, thus making the outcome of any case more predictable. In 18th century Lord Mansfield, the Chief Justice of King’s bench, was instrumental in shaping the common law, majorly the mercantile Law, based upon precedents exemplifying the settled legal principles. He reaffirmed the Law of precedents and the doctrine of Judicial consistency and predictability of legal outcome and said “Law does not consist of particular cases, but of general principles.” So, the relief was based on settled legal principles, refined through time, by the Judicial interpretation of local customs and usage. This also laid down the foundation of principle of stare decisis. The principle of stare decisis asserts that courts "must follow earlier judicial decisions when the same points arise again in litigation” as per Black's Law Dictionary (10th ed. 2014)

Stare decisis or Law of Precedents in modern times:

Section 212 of Government of India Act, 1935, which established the hierarchy of Courts in India, provided that law declared by the federal court (the top most Court) and any judgment of the Privy Council shall, so far as applicable, be recognised as binding and shall be followed by all courts in British India. On the same lines, Article 141 of Constitution of India states that “The Law declared by the Supreme Court shall be binding on all the Courts within the territory of India”. In the words of Supreme Court, itself, the “Law declared” has to be found from the legal principles discussed and decided by the Court in a Judgement. It is the Legal Principle culled out from the reasoning of the judgement given, in the light of the issues or questions of Law raised in any case and the decision reached after thorough discussion of the Law points.  It has not to be confused with observations or passing remarks made by the Court in the course of delivering the judgement. A judgement thus, may consist of two parts: the ratio decidendi and obiter dicta. Ratio decidendi is a Latin maxim which translates to “the rule of Law or the Legal principle on which the decision is based”. It is the ratio decidendi as laid down by the Supreme Court which binds all the Courts throughout the territory of India. 

Power of High Courts to bind lower Courts:

The position of High Courts’ power to lay down legal principles or precedents in order to bind the Courts within its territorial jurisdiction is somewhat different. There is no constitutional equivalent of Art 141 when it comes to the power of High Courts to lay down precedents. Such power of High Courts is however enshrined in Constitution itself. Art 215 provides that High Courts are Court of record, i.e., the Acts and judicial proceedings of these Courts are recorded for a perpetual memory and testimony. These records, called records of the Court, import absolute verity (i.e., truth or principle). Art 227 on the other hand gives the High Courts power of superintendence over all the Courts and tribunals within its territory. It also bestows the power of rule-making and regulating the working of the lower Courts, upon the High Courts. Thus, a comprehensive and cumulative reading of Art 215, Art 226 and Art 227 of the Constitution makes it clear that the High Courts are in fact vested with the power to bind the lower Courts and tribunals within its territory by the Law as laid down by them. This proposition was recognized by the Supreme Court in the case of “East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893”.

Departure from precedents:

The rule states “stare decisis et non quieta movere”, i.e., “stand by decisions and do not move that is quiet”. The rule of stare decisis is generally followed in vertical hierarchy of Courts, as it is the constitutional mandate to obey the rule of Law and its non-compliance would create judicial uncertainty and also illegality. Horizontally, e.g., inter-se the different High Courts, there is no binding force in the precedents, however, they have strong persuasive value. It is more of a rule of courtesy, judicial comity and prudence, horizontally. When there are compelling circumstances before a bench of Supreme Court and serious doubts are cast over the propriety of the precedent or Law as laid down by the larger bench, it is not proper for the bench to hold that the Law is incorrect and overrule it. The matter must be as referred to the Chief Justice for referring it to a larger bench of the Supreme Court, which may in its wisdom overrule the Law and set a new precedent. Similar rule applies in case of High Courts (Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., AIR 2011 SC 312). Supreme Court has held in “Zenith Steel Tubes and Industries Ltd. v. SICOM Ltd. (2008) 1 SCC 533” that in case there exist conflicting judgements of the co-equal benches, it is desirable to refer the matter to a larger bench. 

When there does not exist any clear view or precedent in relation to any legal question, the bench may use its discretion to arrive at a clear view. Here arises an opportunity for the judges to arrive at dissenting view about the legal question raised. In such a situation the precedent is the majority view taken by the judges. However, there have been many instances where minority views have proved to be a much more liberal and correct interpretation of the Law, giving effect to not only the letter but also the spirit of the Law. They are refreshing break from the regressive and myopic views taken by the majority of judges. Many such dissenting views have been fortified into Law at a later stage. (Kindly refer to minority view of H.R. Khanna, J., in “ADM Jabalpur vs SK Shukla (1976) 2 SCC 521” known as the Habeas corpus case; dissenting view of Fazal Ali, J., in “A.K. Gopalan vs State of Madras AIR 1950 SC 27” for his view on Art 21 of Constitution and preventive detention as per “procedure established by Law”; dissenting view of K. Subba Rao, J., in “Khadak Singh vs State of UP 1963 AIR SC 1295” known as the “Right to privacy a fundamental right under Art 21” case)

Stare decisis- vs- per incuriam:

There are certain exceptions to the rule of stare decisis. The decisions which are given per-incuriam and sub-silentio do not have the power to bind the lower Courts. A sub-silentio decision, or the decision given without there being any deliberation or discussion over the legal questions raised in any case and the Law applicable there upon, cannot be referred to as the Law as it is exact contradiction to the definition of a precedent. A decision which is per-incuriam, also does not have any binding force. In curia means “ignorance” or “carelessness” and a decision given by the Supreme Court or High Courts due to ignorance of, or in carless disregard of the Statutory provision or any precedent applicable to the Court. Such a decision, which is given per incuriam, need not be followed by the lower Courts as it does not have binding effect as envisaged under Article 141 of the Constitution of India. Thus, it is the rule of Law, settled by way of judicial scrutiny of statutory provisions and applicability of any earlier precedent on the legal questions raised in any case, which has the binding effect and are binding as per the principle of stare decisis. In State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139, the Court held that “any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as precedent. A conclusion without reference to relevant provision of law is weaker than even casual observation”.