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ASMITA MALVIYA (517)

LAW AS A PRACTISE OF COURTS- PRECEDENTS

Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. The doctrine of precedent, which is also known as the Doctrine of Stare Decisis, i.e stand by the decision, is based on the principle that like cases should be decided alike. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries. This is particularly so in the case of England and other countries which have been influenced by English Jurisprudence. According to Salmond, The great body of the unwritten law is almost entirely the product of outside cases, accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the first at the close of the 13th century. In practice, if not in theory, the common law of England has been created by the decisions of English judges. In CIT vs. B. R. Constructions1, the AP High Court has discussed in detail the general principles regarding the binding nature of precedent which reads: The effect of a binding precedent in India is that the decisions of the Supreme Court are binding on all the Courts. Article 141 of the Constitution embodies the rule of precedents. All the subordinate Courts are bound by the judgements of the High Courts. A single Judge of a High Court is bound by the judgement of another single Judge and a fortiori judgments of Benches consisting of more Judges than one. So also, a Division Bench of a High Court is bound by the judgement of another Division Bench or a Full Bench. A single Judge or Benches of High Courts cannot differ from the earlier judgements of co-ordinate jurisdiction merely because they hold a different view on the question of law for the reason that certainty and uniformity in the administration of justice is of paramount importance. But if the earlier judgement is erroneous or adherence to the rule of precedents results in manifest injustice, differing from an earlier judgement will be permissible. When a Division Bench differs from the judgement of another Division Bench, it has to refer the case to a Full Bench. A Single Judge cannot differ from a decision of a Division Bench except when that decision or a judgement relied upon in that decision is overruled by a Full Bench or the Supreme Court, or when the law laid down by a Full Bench or the Supreme Court is inconsistent with the decision. It may be noticed that a precedent will not be binding (i) if it is reversed or overruled by a higher Court; (ii) when it is affirmed or reversed on a different ground; (iii) when it is inconsistent
1

(1993) 202 ITR 222 (AP) (FB)

with the earlier decisions of the same rank (iv) when it is sub silentio; and (v) when it is rendered per incuriam.

NATURE OF PRECEDENT

A precedent is purely constitutive and in no degree abrogative. This means that a judicial decision can make a law but not alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same. They cannot substitute their opinions for the established rule of law. Their function is limited to supplying the vacancies of the legal system, filling up with new law the gaps that exist in the old and supplementing the imperfectly developed body of legal doctrine. Judicial precedent is an important source of English law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents.. In particular, they may be:
y

Reversed: where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect

Overruled: where in a later case a higher court decides that the first case was wrongly decided

A refusal to follow: this arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision

Distinguished: where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts

Explained: a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.

DOCTRINE OF PRECEDENT IN INDIA A BRITISH LEGACY

Pre-Independence

According to S.212 of the Govt of India Act, 1935 - Law laid down by Federal Court and any judgment of the Privy Council is binding on all courts of British India Privy Council was supreme judicial authority.

Post-Independence

Supreme Court became the supreme judicial authority streamlined system of courts was established.

Supreme Court y y Binding on all courts in India. Not bound by its own decisions, or decisions of PC or Federal Court

High Courts y y y Binding on all courts within its own jurisdiction Only persuasive value for courts outside its own jurisdiction. In case of conflict with decision of same court and bench of equal strength, referred to a higher bench. y Decisions of PC and federal court are binding as long as they dont conflict with decisions of SC.

Lower courts y Bound to follow decisions of higher courts in its own state, in preference

to high courts of other states.

CONSTITUTIONAL PROVISIONS REGARDING PRECEDENTS OF THE SC SCOPE OF Article 141 Art. 141 states, The law declared by the SC shall be binding on all courts within the territory of India. However, Art. 141 does not mean or imply that the law once declared by the SC cannot be altered by a competent legislature Jamnadas Prabhudas

vs Commr. Of Income-Tax 2. If, by an amendment the law is changed, the amendment would not affect Art. 141 because the declaration itself would come to an end with the change of the law. In Nand Kishore vs State Of Punjab3, the SC declared, The court, as a wing of a state, is itself a source of law. The law is what the SC says it is. This famous statement of the court has been greatly criticized as it gives excess power to the courts, and neglects the concept of separation of powers. The objective of this provision is to ensure that the SC may declare law or pass necessary measures that are necessary to do complete justice Golak nath v. State of Punjab4.

AUTHORITY OF PRECEDENT

The reason why a precedent is recognized is that a judicial decision is presumed to be correct. That which is delivered in the judgment must be taken for established truth. In all probability, it is true in fact and even if it is not, it is expedient that it should be held to be true. The practice of following precedents creates confidence in the minds of the litigants. Law becomes certain and known and that in itself is a great advantage. It is conducive to social development; administration of justice becomes even-handed and fair. Decisions are given by judges who are experts in the study of law.

THEORIES OF PRECEDENTS

Do judges make law?

There are two contrary views on this point. The first view is that judges only declare the existing law. The second view is that they make law.

Declaratory theory- According to this theory, judges are no more than the discoverers of law. They discover the law on a particular point and declare it. This view has been supported by many writers, jurists and judges. In other words, judges are not law makers. They merely apply settled principles of law to a case.
2 3

AIR 1951 Bom. 438 1995 (6) SCC 614 4 , AIR 1967 SC 1643

Blackstone wrote: They (judges) are the depositories of the laws; the living oracles who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land. In Rajeshwar Prasad v. State of West Bengal5Jusitce Hidayatullah observed : No doubt the law declared by this court (Supreme Court of India) binds courts in India, but it should always be remembered that this court does not enact.

Criticism of Declaratory theory : Critics have pointed out that in the field of equity, judges have not only been active in modifying, rationalizing and explaining common law rules but also in creating new law at times. It is forgotten by the advocates of the declaratory theory that judges not only interpret the existing law but also expound new propositions of law.

ORIGINAL PRECEDENTS THEORY

According to this view, judges make law. A number of jurists have supported this view. Lord Bacon said that the points which the judges decide in cases of first impression is a distinct contribution to the existing law. In his book Law and Opinion in England, Dicey writes: As all lawyers are aware, a large part and as many would add, the best part of the law of England is judge-made law--- that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by the Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of legislation.

METHODS OF JUDICIAL DECISIONS

There are two methods of judicial decisions: deductive and inductive. In the case of deductive method, the general legal rule is already fixed and certain and the same is applied in individual cases by the judges. The latter are not required to use their own intellect. Their function is merely to apply the law which is already clearly laid down in the same way as a

AIR 1956 SC 1887

student of geometry uses the axioms. In the case of inductive method, the judge has to start from a particular case and come to a general principle of law. The process is from the particular to the general. According to Allen: In the one theory, antecedent decisions are helpful only as the illustration of a general proposition; in the other, they are the very soil from which the general propositions must be mined.

DOCTRINE OF STARE DECISIS

The dictionary meaning of this phrase is the legal principle of determining points in litigation according to precedent . The doctrine of stare decisis is invoked when the reversal of a decision, followed for a considerable length of time, is likely to seriously embarrass those who had, relying upon its particular interpretation of a statute, would find themselves frustrated by a different interpretation. The court should as far as possible stick to the doctrine of stare decisis. One of the chief reasons is that a matter that has once been fully argued and decided should not be allowed to be reopened. However, this is not a universal command. If the rule were to be followed blindly, it would stunt change, and the growth of society. Where public interest is invoked, and where the question is one of constitutional construction, the doctrine may be departed from6. The important principles in reconsidering the decisions of the SC were set out in the Bengal Immunity case7. The SC said there is nothing to prevent the SC from departing from a previous decision if it is convinced of its error and its baneful effect on the general interest of the public. However, this power of review must be exercised with due care and caution and only for advancing public well-being. There should be consistency in law. If any view has been taken by the Supreme Court or the lower authorities and remains unchallenged and the law is not amended / modified, such view should prevail. There should be consistency in law as held in Radhasoami Satsang vs. CIT 8, CIT vs. Balkrishna Malhotra.9 The Supreme Court in Sakhi vs. Union of India 10 observed : Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by
AIR 1953 SC 252 AIR 1955 SC 661 8 (1992) 193 ITR 321 (SC), 9 (1971) 81 ITR 759 (SC). 10 AIR 2004 SC 3566
7 6

decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by Court of competent jurisdiction authorized to construe it, such declaration is absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the Courts and should be followed in similar cases. It is a whole-some doctrine which gives certainty to law and guides the people to mould their affairs in future.

DOCRTINE OF PROSPECTIVE OVER-RULING In the case of Golak Nath v. State of Punjab11, the SC adopted the Doctrine of Prospective Over ruling. In this case, the validity of the first, fourth and the seventeenth amendment of the Constitution of India was challenged. And it was contended that those were invalid. Prior to that case, in Shankari Prasad and Sajjan Singh, these amendments were held to be valid whereas in Golak Naths case, they were held to be invalid. Ordinarily, this would have upset everything done so far. The result was that the SC restricted the effect of its decision to future cases. This is known as Doctrine of Prospective Over ruling.

ELEMENTS OF A JUDGEMENT RATIO DECIDENDI AND OBITER DICTA RATIO DECIDENDI

The dictionary meaning of this Latin expression, is the rule of law on which a judicial decision is made, or reason for deciding. Every decision has 3 basic postulates 1. Findings of facts both direct and inferential 2. Statement of principles applicable to the legal problems as disclosed by Facts 3. Judgment based on the combined effect of the above. To consider the ratio decidendi of a case, the SC has to ascertain the principle upon which it was decided. This is sometimes difficult in cases where divergent views are expressed by different judges, but eventually the

11

AIR 1967 SC 1643

final decision is taken. A decision is binding not because of its conclusion, but in regard to its ratio and the principle laid down therein. General statements made beyond the ratio decidendi have mere persuasive value only. This was held in Union of India vs. Dhanwanti Devi12. A case is only an authority for what it decides, and not from what logically follows from it . Although the decidendi can be applied to similar cases on basis of fact and law, the SC has said that care must be taken to ensure that it is not applied mechanically.

OBITER DICTA

Obiter dicta is a judges expression of opinion uttered in court, or while giving judgement, but not essential to the decision and not part of the ratio decidendi. It also means an incidental remark, or something said in passing. Normally, even an obiter dictum is expected to be obeyed and followed. The obiter dicta of the SC are entitled to considerable weight Commissioner of Income Tax v. Vazir Sultan13. However, the weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, no matter how eminent cannot be treated as a having the weight of authority. In some cases, the obiter dicta of the court will have mere recommendatory effect, and the government or parties to the case are not bound by them. In India, it has been held by the Bombay HC, that the obiter dicta of the PC were binding on all courts in India, on the ground that if the highest court of appeal had applied its mind and decided a question, judicial discipline required that the decision should be followed.

PER INCURIAM

Incuria literally means carelessness and the phrase per incuriam is used to describe judgments that are delivered with ignorance of some statute or rule. It is well-settled in the English doctrine of precedents that a judgement rendered in ignorance of a statute, or a rule having statutory force, which would have affected the result is not binding on a court otherwise bound by its own decisions. In London Street Tramways Co. v. London County

12 13

(1996) 6 SCC 44 AIR 1959 SC 814

Council 14, the House of Lords recognized that such a judgment was an exception to the rule that the House of Lords was absolutely bound by its own judgments. The same exception was recognized by the Court of Appeal in the Bristol Aeroplane case (1944) 1KB 718. The court gave the explanation It cannot be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. The Court of Appeal in Morelle Ltd v Wakeling 15stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

SUB SILENTIO

When a particular point involved in a decision is not taken notice of and is not argued by a counsel, the court may decide in favour of one party, whereas if all the points had been put forth, the decision may have been in favour of the other party. Hence such a rule is not an authority on the point which had not been argued and this point is said to be sub silentio.

14 15

(1898) AC 375 [1955] 1 All ER 708, [1955] 2 QB 379