DOCTRINE OF PRECEDENTS PART-1

INTRODUCTION

Defining a precedent by its nominative definition “A precedent is a previous instance or case which furnishes an example or rule for subsequent conduct, and a pattern upon which subsequent conduct is based.” [1] Article 141 of Indian constitution defines and gives constitutional binding to law of precedents in India. It makes the subordinate courts bound to the decisions of higher courts, which are based on reason and merit as well this practice eases the burden of courts, and ensures uniformity in the system. India is a common law country, where we accord great importance to doctrine of stare decisis as well as doctrine of precedents. The doctrine of precedents exists in India since time immemorial, even before the establishment of supreme court of India in 1950.

They are not just considered as evidence of law but as sources of law. Courts not only interpret law, but create binding laws in form of precedents which are to be followed by lower courts and even has a binding and authoritative value for the same court in future. Precedents give a broader and loftier construction to statutory law, which makes construing meaning out of them easier while in a broader perspective also gives direction to future laws made on that subject. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.[2]

The doctrine of precedent and stare decisis overlap each other. The meaning of stare decisis is to decide a litigation by the points of a previous case. Stare decisis by its literal meaning, is a latin phase which means to stand by decisions. This is also expressed in the maxim stare decisis et non quieta movere, which means to stand by decisions and not to disturb what is settled. This in a broader and wider sense means what is settled should not be disturbed, without a reasonable reason. This rule is not in converse of reason, but only application of previous reason as it prevents unnecessary delay in cases, and lowers the burden of courts in the presence of a properly reasoned decision of the same or higher court.

RATIO DECIDENDI AND OBITER DICTA

In applying the doctrine of precedent, it is reasonable to know that only the ratio decidendi part of the judgement is binding on the immediate parties and gives a binding value for further discussion and consideration in other cases. If we define term by its use, ratio decidendi is the part of precedent which has binding force of law and can be used to decide further cases. In central board of dawoodi bohra community v. state of Maharashtra[3] it was stated by the apex court that a decision is an authority for what is decided not what can be logically deduced therefrom. The ratio decidendi of a judgement can only be ascertained by reading the judgement in its whole. What is set out in a judgement, should be read in the context of the whole judgement, not in isolation. If multiple reasons are given behind a particular decision all become part of ratio decidendi. By reading the judgement in fragments, one cannot ascertain the whole ratio decidendi of the case. Ratio decidendi of a case cannot be read as a theorem or statute, it has to be read in its entirety and context. Some words involved can only be understood contextually, not literally. Ratio decidendi has to be taken along the facts of the case,

Obiter dictum is a mere saying which does not have a binding value, but can be used as an authoritative source for taking guidance for development of future law in a particular area. It gives direction for future deliberation on a subject or question in law. Obiter dicta of supreme court can have binding value on high court in case of absence of a direct pronouncement on the particular question concerned. But in case of supreme court it doesn’t have a binding value, but can have a persuasive value. It is a judicial comment given during delivering a judgement, may not be directly related to the question in discussion, but could be in the mind of the judge while delivering the decision.

In practical situations, any normal judgement of supreme court or high court runs into 600-800 pages. So a lot of effort is required to differentiate between the two in a judgement. It is very technical work and requires expertise, because mistakes cannot be afforded.

NEED FOR CHANGE

Judges while deciding cases, sometimes rely on verbatim interpretation of constitution while sometimes they use historical cases to corroborate and reason their judgement. Article 141 of constitution of India declares that “The law declared by the Supreme Court shall be binding on all courts within the territory of India”. Article 141 is like a foundational stone which provides clarity on law, consistency and prevents arbitrariness.

There are a number of merits in this practice, but in a fast changing world, where a number of economic, social and political changes are affecting the society, it is compulsory to leave some lacuna for reasonable changes. The question arises that does this word ‘all courts’ include the supreme court of India itself or not. Doctrine of stare decisis is not an absolute doctrine, it is for maintaining consistency of law laid down under article 141. The power to review its own decisions is given to the supreme court by way of article 137 of constitution of India, which states that “subject to the provisions of any law made by parliament or any rules made under article 145, the supreme court shall have power to review any judgement or order made by it”. So this provision straightaway gives a wide range of powers under review jurisdiction to the courts to differ from their own previous decisions.

The reason for giving such a wide range of discretionary powers to supreme court, was for complete administration of justice. So the apex court is not absolutely bound by its own previous decisions. It is compulsory to note that, under article 141, the law declared by supreme court becomes the law of the whole country. If we bind its decision making powers beyond a certain limit, it could prove as an impediment to the development of jurisprudence and the process of justice. This power also originates from our common law background, the roots and primary structure of which were laid down during the british rule in our country. The same is not the case with high courts. In the absence of a binding precedent, they can exercise their discretion. But in the presence of a binding precedent of supreme court, which has answered the question in discussion, the high court is bound by law to follow the precedent.


[1] Lakshminath A., Precedent in Indian Law: Judicial Process, (EBC, Delhi, 3rd edition, 2009).

[2] Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644. 

[3] central board of dawoodi bohra community v. state of Maharashtra, (2002) 7 SCC 273.

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