THE DOCTRINE of rule of law rests on the basic foundation and structure of a country’s well ordered government and its established courts of justice. Though it is the legislative wing of the government that makes the law, there is yet a large body of common law based on customs and practices of the society which gives them the sanctity of law.
6.In the ultimate analysis it is the courts of justice that administer alt these laws and in their interpretative jurisdiction, they take note of the intendment of the legislature and often supply the omissions in the enacted law and some- times propound even new avenues for the legislature to take note of and regularise them by the enacted law. The legal profession and the litigant public, therefore, look for enlightenment in the law of the country by
studying the law reports which contain the decisions of the highest courts of the country. In the federal set up of Bharat, such authoritative decisions emanate only from the High Courts in the states and the Supreme Court at the centre.
It, therefore, follows that the law reports which contain these authoritative decisions should be on a pattern that will survey the binding precedents duly edited and annotated. The choice of the reportable judgments, the pattern of editing and the need for any annotation, call for some deep thinking. As the doctrine of precedents has come to stay in India, it is necessary to make law reporting efficient based on certain basic and workable principles. The Constitution of India has provided in article 141
that the law declared by the Supreme Court would be binding on all the courts in India. Though there is no similar provision with regard to the High Courts, it is well settled that the courts subordinate to the High Courts are bound by their decisions.1 The Law Commission of India in its 14th Report has observed “The present system of treating judicial precedents as binding and citing them in Court serves a very valuable purpose and should be continued.”2
The decisions of the highest courts of the land prior to the commencement of the Constitution of India in 1950 are also governed by the doctrine of precedent if not overruled by the Supreme Court. Section 212 of the Government of India Act, 1935 provided that the judgment of the Federal Court and the Privy Council shall be binding on all the courts in India.3 The provision in article 372 (1) of the Constitution clearly postulates that “all the law in force in the territory of India immediately prior to the commencement of this Constitution shall continue in force until altered or repealed or amended by a competent Legislature or other competent authority.”4 It must be remembered that a decision of a Bench of two judges is binding on a single judge and the former is subject to a Full Bench decision.5 The overlooking of a precedent often leads to an erroneous decision.6 A deliberate ignoring of a precedent will tantamount to insubordination and possibly lead to contempt action also.7 It is also necessary to remember that the Privy Council decisions prior to the coming into force of the Constitution of India are binding on the High Courts in the absence of any constitutional prohibition.8
However, too much emphasis on precedents is not healthy. The judge must be helped by and not cabined by precedents. The dictum of Lord Mansfield in Jones v. Randall® is a good pointer : “The Law of England would be a strange science indeed if it were decided upon precedents only. Precedents serve to illustrate principles and to give them a fixed certainty” One good reason for the elastic powers conferred on the Supreme Court in its interpretative jurisdiction is to enable it to change the law when it feels it to be necessary as stated by the act which shows the law reports and reporting in India. The Law Commission’s recommendation that the Law Reporting Council should consist of the Advocate-General, an academic lawyer, a representative of the Bar Council, adequate representation of the High Court Bar Association and one member from the Muffasil Bar appears to be reasonable. It will be unwise to leave the entire matter exclusively to the Bar Council or to the Bar Association of the High Court as such.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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