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Stare Decisis - The Principle Of Precedents And Its Practice In India

Introduction

The principle of binding nature of precedents is known as Stare decisis et non quieta movere. Courts have developed this principle to ensure consistency and predictability in judicial matters. In the event of an ambiguity in interpretation of a provision of law or a legal principle, one arranges their affairs in accordance with the judgments dealing with the same, or similar, issues. If a dispute arises subsequently, the expectation is that the courts would follow their previous judgments, and such a discipline brings in consistency and confidence in the administration of justice. This article examines some of the aspects of this principle and its practice in India.

Systematic Development of the Principle

The principle of stare decisis or the binding nature of the precedents is one of the attributes of Common law. According to the Blackstonian theory^[1*], judges do not make law, but only find them or propound them. It follows that once the courts `find' the law or declare them, people are entitled to rely on such law and arrange their affairs. In the event of a subsequent dispute, courts are expected to apply the law found by it earlier, and apply the same to resolve later disputes. In this way, courts depart from their traditional function of resolving the disputes between the parties before them, and make law that would be applicable to future transactions. Thus, the courts declare what the law on a particular subject is. This theory is called the declaratory theory. However, the declaratory theory of law was not applicable to the Chancery Courts, which administered equity. The rules of the courts of equity are "established from time to time - altered, improved, and refined from time to time.^[2*]" Fitzgerald divides the judgments into two categories, authoritative and persuasive^[3*]. An authoritative judgment binds the court in a subsequent case, whereas a persuasive judgment is not binding, but the court may consider it. Foreign judgments and obiter dicta are examples of judgments having persuasive value. The judgements of superior courts are binding on the lower courts and thus they are authoritative judgments. One difficult question that arises in case of authoritative judgments is what happens if the court makes an error and the subsequent court finds that it would be unwise and unjust to follow it. The subsequent court will have to either follow the earlier judgments and maintain predictability, or refuse to follow it and decide the case as it deems fit. The Common law courts followed the stare decisis principle and respected the binding nature of precedents. The courts looked at the legislature to make law to remove the basis of the earlier judgments, so that such judgments lose their relevance. Originally, the House of Lords was also bound by its earlier decisions^[4*]. However, the Privy Council maintained that it was not bound by its earlier decisions^[5*]. In 1966, the House of Lords made an announcement that it would not be strictly bound by its earlier decisions.

[1* William Blackstone, "Commentaries on The Laws of England" at p.69.]

[2* Re Hallet (1879) 13 Ch.D. at p.710, as cited in P.J.Fitzgerald, Salmond on Jurisprudence, 12th Ed. p.145 ]

[3* Fitzgerald, supra, id.]

[4* London Tramways v. London County Council (1898) AC 375 as cited in David Wong, infra.]

[5* Fitzgerald, supra, p.146.]

"Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so."^[6*] A decision in the judgment operates as res judicata to the parties to the dispute. The reasons for the decisions in the judgment, i.e., ratio decidendi becomes law for all parties who are not parties to the dispute also^[7*]. There are certain circumstances which will weaken or destroy the binding nature of the precedents^[8*]. A subsequent law will abrogate stare decisis and remove the basis for its binding nature. If a judgment is affirmed or overruled on some other ground, it will lose its significance as a binding precedent. If a judgment is given in ignorance of a statutory provision or a binding precedent, it is per incuriam and will not have any binding effect. Decisions of equally divided courts will not have any binding effect. In Bengal Immunity Company Limited v. State of Bihar^[9*], Das, C.J. made an attempt to justify overruling the previous decisions on this ground. Another circumstance is sub silentio, that is to say, if a case is decided on a particular point, but if it is later demonstrated that it could not have decided that point, without first deciding another point, the rule of sub silentio applies^[10*].

[6* David Vong, "Binding Precedent and English Judicial law-making" available at https://www.law.kuleuven.be/apps/jura/public/art/21n3/vong.pdf accessed on 16.11.2019]

[7* A.K.Awasthi, "Stare Decicis and Supreme Court" available at intro.nic.in/web journal/8.htm. last accessed on 16.12.2019.]

[8* Generally, Fitzgerald, supra, p.148]

[9* AIR 1955 SC 661]

[10* Gerard v. Worth of Paris Ltd, [1936] 2 ALL.E.R. 905 (C.A.) as cited in Fitzgerald, supra, p.154]

Application of stare decisis in India

In India, courts have held that the lower court is bound by the decision of a higher court. A lower court in a State is bound by the judgments of the High Court of that State and the Supreme Court. A single judge of the High Court of bound by the judgment of a Division Bench, Full Bench or Supreme Court. The Division Bench of a High Court is bound by the judgment of the Full Bench of the same High Court and the Supreme Court. A judgment of a High Court will only have a persuasive value over the other High Courts. The judgments of the Supreme Court is binding on all the other courts in India by reason of Article 141 of the Constitution of India^[11*]. Like the House of Lords, the Supreme Court also stated that it is bound by its own decisions and it reserved the right to review its own decisions in appropriate cases^[12*]. A two member Bench or three member Bench of the Supreme Court is bound by the judgment a coordinate Bench^[13*] and also by the judgment of the Constitution Bench. A Constitution Bench is bound by the judgment of a seven member or a higher Bench. However, there are many instances where a two ember Bench or a three member Bench doubted the correctness of a Constitution Bench judgment and referred it to a larger Bench for reconsideration. The binding nature of the judgment of the Supreme Court on itself is the subject matter of many judgments.

[11* Article 141 provides: "The law declared by the Supreme Court shall be binding on all courts within the territory of India."]

[12* Bengal Immunity, supra]

[13* Union of India v. Raghubir Singh, 1989 SCC (2) 754]

In Bengal Immunity, the issue of stare decisis was raised before a Constitution Bench of seven judges. The appellant challenged the notice issued by the Commissioner of Sales Tax, Bihar asking it to take registration in the State of Bihar and pay tax as its goods were sold in the State of Bihar. The appellant contended that it had no place of business in Bihar and its sales were inter-state sales, which are outside the taxing powers of the States in terms of Article 286 of the Constitution. In State of Bombay v. United Motors (India) Ltd.^[14*], a Constitution Bench of five judges considered the scope of Article 286 and held, by majority, that a State in which the goods are actually delivered for the purpose of consumption therein has power to levy tax on the transaction and Article 286(2) did not affect such power. It was argued that the court in Bengal Immunity was bound by the majority decision in United Motors and thus, the issue was no longer res integra.

[14* (1953) SCR 1069]

The judgment in Bengal Immunity was decided by a majority of 4:3, with N.H. Bhagwati, J., who was part of the majority in United Motors, which was decided by a majority, changed his view and overruled United Motors. Bhagwati J's opinion tilted the scales in both United Motors and Bengal Immunity. Das, CJ, explained the reason for overruling United Motors. He held that the majority decision in United Motors authorises imposition of a tax which was outside the domain of the State legislature and allowing it to remain would perpetuating an unauthorised tax burden imposed on the people. Das, CJ, also went on to analyse the number of judges who formed the majority in United Motors and State of Travancore-Cochin v. Shanmugha Vilas Cashewnut factory^[15*]. After considering the common judges in both these cases and Bhagwati, J, who has changed his view from that in United Motors, Das, CJ, considered that these two cases were decided by the judges in the ratio of 3:3. The number of judges who form part of the Bench would determine the binding nature of its judgment. However, the analysis undertaken by Das, CJ has no precedents either before or after Bengal Immunity^[16*]. Bhagwati, J, wrote a separate concurring judgment explaining why he was taking a view different from the one he took in United Motors. This case is an example of the difficulties faced by judges when constrained to overrule their earlier judgments. In Sambhu Nath Sarkar v. The State of West Bengal^[17*], a Constitution Bench of seven judges rejected the contention that they were bound to follow the court's earlier decision in A.K. Gopalan^[18*] which stood for a long time, holding that they would review their earlier decisions if they are "inconsistent with the legal philosophy of our Constitution" and that "perpetuation of an error would be harmful to public interests". In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay^[19*], P.N.Bhagwati, J, faced the argument that the court's earlier decision in Northern India Caterers v. State of Punjab^[20*], would be binding on it. Bhagwati, J. was part of the court that decided Northern Caterer. The majority overruled Northern Caterer. Bhagwati, J, wrote a concurring judgment stating that the court's earlier binding judgments in Kedar Nath Bajoria v. State of West Bengal^[21*] and A. Thangal Kunju Musaliar v M. Venkitachalam Potti^[22*] were not brought to the knowledge of court that decided Northern Caterer. This case is an example of how a judgment loses its precedent value if it is per incuriam, rendered in ignorance of an earlier binding judgment or law. If there are two interpretations possible, the courts have held that they would not depart from the earlier interpretation even if they disagree with the earlier interpretation^[23*]. However, the yardstick would be different, if they reach a conclusion that the earlier decision was erroneous. After referring to Jackson J^[24*], that "I see no reason why I should be considered consciously wrong today because I was unconsciously wrong yesterday" and Lord Denning^[25*] that "The doctrine of precedent does not compel Your Lordships to follow the wrong path until you fall over the edge of the cliff", the court held in Distributors (Baroda) Pvt Ltd v. Union of India^[26*], that if there are overriding considerations, they would reconsider and review their earlier decisions. One of the difficulties in following the principle of stare decisis is that it is the ratio of the decision or ratio decidendi and not the decision itself that will have the binding effect^[27*]. In many judgments the ratio decidendi is not spelt out clearly. One of the tests recommended in this regard is Professor Wambaugh's "Inversion Test" to discern the ratio in a judgment^[28*]. In some cases, the judges agree on the decision but for different reasons. Cases like these will not have any precedent value as the judges did not agree on the reasons for reaching their decision^[29*]. In some instances, the Supreme Court deprecated the practice of a two member Bench doubting the correctness of the decision of a Constitution Bench and referring it to a five member Bench^[30*]. In some instances, when a two member Bench doubted the correctness of a Constitution Bench and referred it to a seven member Bench, the same was entertained^[31*].

[15* State of Travancore-Cochin v. Shanmuga Vilas Cashewnut factory, AIR 1953 SC 333]

[16* This is one of the circumstances pointed out by Fitzgerald, supra, as weakening the principle of stare decisis. The number of judges in a majority or minority view of a judgment was considered for the purposes of determining the precedent value of the judgment. In Supreme Court Advocates-on-Record Assn v. Union of India, (2016) 5 SCC 1 at para 669, the court made an interesting analysis and found that in some cases when one considers the number of judges in the judgments overruling, and the overruled judgments, it shows that five judges had overruled opinions of seven judges.]

[17* (1973) 1 SCC 856. See also Waman Rao v. Union of India, (1985) 1 SCC 275. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, the court struck a different note and held that it would be hard to discard stare decisis when certain situations have crystallised and unsettling them would create avoidable problems.]

[18* [1950] S.C.R. 88]

[19* AIR 1974 SC 2009]

[20* (1967) 3 SCR 339]

[21* 1954 SCR 30]

[22* (1955) 2 SCR 1196]

[23* Lt. Col. Khajoor Singh v. Union of India, (1961) 2 SCR 828]

[24* In his dissenting opinion in Massachusetts v. United States, (1947) 333 U.S. 611]

[25* Ostime v. Australian Mutual Presidential Society, (1960) AC 459]

[26* (1986) 1 SCC 43]

[27* Prakash Amichand Shah v. State of Gujarat, (1986) 1 SCC 581]

[28* The central idea is that in order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. State of Gujarat v. Utility User's Welfare Association, 2018 6 SCC 21. In Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court, (1990) 3 SCC 682, the court observed that it is the discretion of the court to determine the ratio of the case cited before it.]

[29* In Vidyacharan Shukla v. Khubchand Baghel, AIR 964 SC 1099, Subba Rao, J, wrote the main judgment. Rajagopa Ayyangar, J, Raghubar Dayal, J, and Mudholkar, J, agreed with Subba Rao, J, that the appeal should be dismissed but each of them did not agree with the reasons given by Subba Rao, J and gave their respective reasons.]

[30* Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha, (2001) 4 SCC 448]

[31* A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602]

Conclusion

No one would dispute the proposition that consistency for the sake of consistency is not desirable, and where the circumstances demand a change of opinion, one would not hesitate to make the change. The Supreme Court has declared in no uncertain terms, time and again, that the courts would follow their earlier judgments. However, the court also declared that it would not hesitate to review and overrule its earlier judgments if it is necessary, and it would not be strictly bound by the rule of procedure such as stare decisis. Though the court has attempted to frame certain broad parameters for exercise of its powers in this regard, it has, by and large, left it to the wisdom of the judges considering the cases cited before them. This resulted in instances where the court first overruled its judgment and later such judgment was overruled, restoring the principles laid down in the first judgment^[32*]. A number of judgments in which the Supreme Court doubted its own judgments was sought to be reviewed, and the frequency with which such reviews are sought shows the necessity to look into the reasons for such frequent review.

[32* Para 673.6 in Supreme Court Advocates-on-Record, supra.]

[*] Research Scholar, VIT School of Law,VIT Chennai-600 127.

[**] Associate Professor & Head of the Department, VIT School of Law, VIT Chennai -600 127.

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