doctrine of judical precedent in india written by j s rajawat

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 [email protected] 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

doctrine of judical precedent in india written by j s rajawat

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