The doctrine of precedent refers to the doctrine that the court is to follow judicial decisions in earlier cases, when the same questions or points are raised before it in subsequent matters. According to Salmond, the phrase ‘the doctrine of precedent’ has two meanings. In its loose sense, it means that precedents are reported, may be cited and will probably be followed by courts. In strict sense, it means not only that a precedent has great authority but in certain circumstances, courts are bound by previously decided cases. Thus, what a court really does is to apply principles or decisions laid down in past.
According to Hart and Sacks, stare decisis furthers three primary goals. First, the doctrine promotes private ordering of citizens affairs by enabling them to plan their social and economic transactions with confidence that they are in compliance with existing law. Stare decisis also encourages private settlement of disputes by discouraging individuals from forum and judge shopping (Eskridge and Frickey 1994, 568; Hanssen 1999).
Second, stare decisis furthers fair and efficient adjudication by sparing litigants the need to relitigate (and judges the need to reconsider) every issue in every case, and it discourages a rush of litigation whenever a change of personnel occurs on the bench. Third, stare decisis promotes public confidence in the judiciary by providing some constraints on judges power through the obligation to build upon prior decisions in a fashion that may withstand professional criticism.
FOUNDATION OF STARE DECISIS
The basic reason behind the doctrine of stare decisis is the maintenance of consistency and certainty. Certainty, predictability, and stability in law are considered to be the major objectives of the legal system, and the doctrine of stare decisis aims at achieving these objectives.
In Hari Singh v. State of Haryana, it was noted that it is true that in the system of justice which is administered by courts, one of the basic principles to be kept in mind that the courts of co-ordinate jurisdiction should have consistent opinions in respect of similar sets of facts and circumstances or question of law. If opinions given on identical facts are inconsistent, instead of achieving harmony in the judicial systems, it will lead to judicial anarchy. The view that has held the field for a long time must not be disturbed merely because of the possibility of another view.
Stare decisis is the preferred course because it promotes evenhanded, predictable, and consistent development of legal principles fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis is intended to insure that people are guided in their personal and business dealings by prior court decisions, through established and fixed principles they announce. Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right. Stated otherwise, stare decisis is the most important application of a theory of decision-making consistency in our legal culture and it is an obvious manifestation of the notion that decision-making consistency itself has normative value.
The doctrine of stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. The doctrine of stare decisis is crucial to the system of justice because it ensures predictability of the law and the fairness of adjudication.
DOCTRINE OF PRECEDENT: PROS AND CONS
A number of commentators have explored the pros and cons of the doctrine of stare decisis. Supporters of the system, argue that obeying precedent makes decisions “predictable.” Another advantage of this doctrine, as mentioned earlier is that it brings certainty, stability and consistency in law. It also saves time and energy of judges as they are not required to determine the same question of law over and over again once it has been settled. As noted by Bodenheimer, the doctrine also plays a role in curbing arbitrariness on the part of judges as they are bound to follow established precedents thus preventing bias and error. The doctrine brings flexibility in law and law is shaped according to the social, economic and other circumstances.
However, critics argue that stare decisis is an application of the argument from authority logical fallacy and can result in the preservation and propagation of cases decided wrongly. Another argument often used against the system is that it is undemocratic as it allows unelected judges to make law. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed.
Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution.
Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. Another factor is that the doctrine of binding precedent can in a sense hinder the development of law. Society is not static and there are changes in social, economic and other circumstances with time. Changed circumstances may require a different interpretation of law.
This doctrine has been applied in service matters. In Managing Director, ECIL v. B.Karunakar, the view was adopted. Prospective over ruling is a part of the principles of constitutional cannon of interpretation and can be resorted to by the Supreme Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings and to avoid uncertainty and avoidable litigation. In other words action taken contrary to the law declared prior to the date of declaration is validated in larger public interest. The law as declared applies to future cases.
The doctrine has been adopted to avoid multiplicity of proceedings, and avoid uncertainty in law. It was observed in the case of M.A. Murthy v. State of Karnataka that the doctrine of prospective overruling was a part of the constitutional cannons of interpretation.
While Golak Nath`s case, certain guidelines have been laid down as regards the application of doctrine of prospective overruling, as observed in Somaiya Organics India Ltd.v. State of U.P.
The parameters have not been adhered to in practice. It may be mentioned here that unless the court expressly makes the operation of a decision of a decision prospective, it will be retrospective in operation.
It is for the Supreme Court to indicate as to whether the decision in question will operate prospectively. In other words there shall be no prospective over ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistencies in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of the transaction forming part of the daily affairs.
So the concept of Prospective Overruling, as the title of the project reflects, is a deviation from the principle of retroactive operation of a decision and thus, a deviation from the traditional Blackstonian principle too. To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.e., have only prospective operation. This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned cases.
DOCTRINE OF STARE DECISIS IN INDIA
The doctrine of stare decisis as is understood today appears to not have existed in India during the ancient or medieval times. It is only with the establishment of British rule in the country that the concept of binding precedent came to be applicable in India. The British Rule led to the hierarchy of courts as well as reporting of decisions, i.e., the two pre conditions for the stare decisis. In 1813, Dorin suggested the adoption of the doctrine of stare decisis in India.
The establishment of British Rule led to the setting up of the Sardar Diwani Adalats and the Supreme Courts at Calcutta, Bombay and Madras. In 1861, the high court Act was enacted providing for the establishment of high Courts by issue of letters patent. Such courts had original as well as appellate jurisdiction. A hierarchy of courts was thus established.
The Government of India Act, 1935 expressly made the decisions of the Federal court and the Privy Council binding on all Courts in British India and thus gave statutory recognition to the doctrine of stare decisis. The Federal courts were not bound by its own decisions. After independence, the doctrine of precedent continues to be followed in the country.
Article 141 of the Constitution of India makes the ‘law declared’ by the Supreme Court binding on all courts within the territory in India. The Expression ‘law declared’ implies the law creating role of the Supreme Court. The Supreme Court is not bound by its own decisions. In Bengal Immunity Co. v. State of Bihar the court observed that there is nothing in the Indian constitution that prevent the Supreme Court from departing from its own previous decision if it is convinced of its error and baneful effect on public interest. In so far as high court are concerned, the decisions of a High Court are binding on all subordinate courts within the jurisdiction of High Court.
M.A. MURTHY v. STATE OF KARNATAKA AND ORS.
PETITIONER- M.A. MURTHY
RESPONDENT – STATE OF KARNATAKA AND ORS.
DATE OF JUDGEMENT – 02/09/2003
CITATION – 6913-6914 OF 2003
JUDGE – DORAISWAMY RAJU AND ARIJIT PASAYAT
FACTS OF THE CASE- Karnataka State Financial Corporation invited applications for recruitment to two posts of Manager (Finance and Accounts) by advertisement dated 18.7.1995. The advertisement inviting applications for the two posts of Manager (Finance and Accounts), one post for general and one post of scheduled caste, prescribed the requisite educational qualification. It was stipulated in the advertisement that the age and other qualifications were to be reckoned as of 31.7.1995. It was also indicated that the applications in the prescribed format with complete information should reach the prescribed authority before 29th July, 1995 and incomplete applications and applications without necessary enclosures were to be rejected.
Appellant and respondents 4 and 5 were applicants in response to the advertisement. Though respondent No.4 was not qualified on the last date of submission of application, he was permitted to attend and appear for the written test. However, on the date of interview he was eligible. The written test was conducted on 1.10.1995 and the viva vice was conducted on 25.11.1995. Similar was stated to be the position vis- à-vis respondent No.5. When respondent No.4 was selected, appellant challenged his selection to be not in accordance with law. It is to be noted that waiting list is prepared and respondent No.5 was placed in the waiting list.
A writ application was filed before the Karnataka High Court at Bangalore challenging the selection of respondent No.4 and placing respondent No.5 in the waiting list. Though, learned Single Judge of the High Court held that respondent No.4 was ineligible as on the date of employment, he held that in public interest the selection was to be maintained.
A reference was made to the decision of this Court in Ashok Kumar Sharma and Anr. v. Chander Shekher and Anr. (1993 Supp (2) SCC 611) where it was held that if the applicant had acquired qualification by the time of interview that is sufficient.
The High Court by the impugned judgment held that though admittedly on 18.7.1995 i.e. on the date of advertisement the respondent No.4 was not qualified to make an application, yet few dates and facts are relevant. He had appeared for the M.B.A. examination in April 1995 and the results were declared on 4.9.1995. The written examination was held on 1.10.1995 and viva voce was conducted on 25.11.1995. At least by the time the written examination and the viva voce tests were held, he had acquired the requisite qualification. Judgment in Ashok Kumar Sharma’s case No. I was delivered on 18.12.1992 and decision in the review petition in the said case was rendered on 10.3.1997. The appointment of respondent No.4 was made when the earlier decision of Ashok Kumar Sharma’s case No.I held the field. It was, therefore, held that on the date of selection, the first judgment held the field; and, therefore, by applying logic of that decision the selection of respondent No.4 cannot be questioned.
Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.
It was permissible for this case to set aside the appointments of respondent no.4 and respondent no.5, on the peculiar facts of this case, we consider it to be not called for and the rights of parties instead could be adjusted by working out equities, in the interests of substantial justice by adopting a different course. The appellant shall rank senior to respondent No.4 by treating his appointment to be with effect from the date of selection of respondent No.4. This shall be only for the purpose of fixing the seniority and continuity of service only not for entitlement to any salary or other financial benefits. As respondent No.5 was only in the waiting list, and it is stated that he has been subsequently appointed, he will also rank below the appellant and respondent No.4. The appeals are accordingly allowed. There shall be no order as to costs.
L.C. GOLAKHNATH AND ORS. v. STATE OF PUNJAB AND ANR.
PETITIONER- I.C. GOLAKHNATH & ORS
RESPONDENT- STATE OF PINJAB & ANRS
DATE OF JUDGEMENT– 27/02/1967
BENCH– RAO, K. SUBBA(CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. BACHWAT, V.SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K. VAIDYIALINGAM, C.A.
CITATTION– 1967 AIR 1643 1967 SCR(2) 762
FACTS OF THE CASE- The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar, Punjab. In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared ‘surplus’. This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme Court in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their constitutional rights to acquire and hold property and practice any profession (Articles 19(f) and (g)) and to equality before and equal protection of the law (Article 14). They also sought to have the Seventeenth Amendment – which had placed the Punjab Act in the Ninth Schedule – declared ultra vires.
The issues involved were whether Amendment is a “law” under the meaning of Article 13(3)( a), and whether Fundamental Rights can be amended or not.
JUDGEMENT OF THE CASE- The judgement reversed Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights. The judgement left Parliament with no power to curtail Fundamental Rights.
The Supreme Court, by thin majority of 6:5, held that a constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(3) of the Constitution. The majority did not believe there was any difference between ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. The majority did not agree with the view that Article 368 of the Constitution contained “power and procedure” to amend, but instead believed that the text of Article 368 only explained the procedure to amend the constitution, the power being derived from entry 97 of the List I of the VII Schedule to the Constitution.
Since according to Article 13(2), the parliament could not make any law that abridges the Fundamental Rights contained in Part III of the Constitution, a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights chapter contained in the Constitution of India. Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights chapter of the Constitution were said to be void.
MANAGING DIRECTOR, ECIL HYDERABAD v. B. KARUNAKAR
PETITIONER- MANAGING DIRECTOR ECIL HYDERABAD ETC.
RESPONDENT-B. KARUNAKAR ETC.
DATE OF JUDGEMENT– 01/10/1993
BENCH– M.N. VENKATACHALIAH CJI & P.B. SAWANT & K. RAMASWAMY &S. MOHAN & B.P. JEEVAN REDDY
CITATTION– 1993 4 SCC 727 1993 25 ATC 704
FACTS OF THE CASE– In this case, the respondent was a Engineer working in the ECIL. He was charged with passing of a spurious EC. TVth as one made by Electronics Corporation (employer) under the brand name ‘Ajanta’. On the basis of complaint made by the purchaser, an inquiry was instituted against the respondent. At the conclusion of the inquiry, he was dismissed from the service by the service by the Corporation by its order dated 27-04-1987. The respondent challenged the same by way of writ petition in the High Court. The ground taken by him in the writ petition was not tendered for cross examination though his testimony was relied upon by the Corporation and the Enquiry Officer against him. The learned Single Judge negative the same by holding that while it s true that the said witness was not tendered for the cross examination by the respondent, it can be said to have prejudiced him in as much as he has obtained an affidavit from the said person retracting his earlier statement. The learned Single Judge remarked that even if the witness has been tendered for cross examination, he would have made more beneficial statement that those contained in the affidavit in the favor of the respondent. The learned Single Judge, evidently with the view to satisfy himself as to the truth of the charges, noted the essential features of the cases against the respondent and held that the defense put forward by the respondent was rightly rejected. Accordingly, he dismissed the writ petition. The respondent thereupon filed a writ appeal wherein he urged, for the first time that the enquiry report not having been supplied to him, the enquiry is vitiated. Indeed, this appears to be the only point urged in the appeal. The Division Bench purporting to follow the decision in the court in the Union of India v. Mohd. Ramzan Khan 1991 1 SCC 588, allowed the appeal and made the following observation: “We make it clear that the respondent is at the liberty to continue the inquiry against the appellant from the stage not held to be vitiated.” A further observation was made that the Corporation may consider whether it is jus, expedient and worthwhile to proceed with the inquiry at this distance of time. It is against the said judgement that the present appeal was preferred actually this was the leading case in which the opinion of the Constitution Bench was rendered .
JUDGEMENT OF THE CASE – It has been held by the constitution Bench that the principles of natural justice do require that the copy of the enquiry report is supplied to the charged officer though it is not necessary to give him a notice indicating the proposed penalty. But, it has been held, this requirement will be held obligatory only from the date of the judgement in Ramzan Khan case, viz., 20-11-1990. In this case, it may be noted, the order of dismissal of the respondent is far earlier to the said date. In the circumstances, the dismissal order cannot be said to be vitiated by on furnishing of the Enquiry Officer’s report. So far as the merits are concerned, the only contention urged before the Single Judge was in our opinion, rightly repelled and, therefore, there is no ground for the interference with the order of dismissal. In the circumstances, the appeal is allowed. The order of the Division Bench of the High Court is set aside and the order of learned Single Judge is restored.
It is brought to our notice that pursuant to the judgement of the Division Bench, the respondent was restored to service and that he was also paid 50%of the back wages. Shri H.N Salve, learned council for the Corporation fairly stated that the Corporation is not interested in recovering the back wages already paid nor is it going to make a claim with respect to emoluments paid for the period the respondent served subsequent to the order of the Division Bench of the High Court. There shall be no order as to costs.
The doctrine of stare decisis makes the decisions of courts, usually the higher forums, binding on subordinate courts in cases in which similar or identical questions of law are raised before the court. The application of this doctrine ensures that there is uniformity and certainty in the law. It saves time and efforts of judges and helps in preventing arbitrary action on the part of judges. The doctrine thus ensures that at least over a certain period of time law remain certain and people are able to conduct their business in accordance with the prevalent interpretation of law. The doctrine is thus in the interest of public policy.
In India, the doctrine is constitutionally recognized in respect of the decisions of the Supreme Court which have been declared under Article 141 to be binding on all courts and tribunals in the country. This of course implies that even a single pronouncement of the Supreme Court would be binding on subordinate courts. However, as held in the Bengal Immunity case, the decisions of the Supreme Court are not binding on itself. It is only the reasons for deciding a case i.e., the ratio decidendi of the case which are binding on future courts.
In order for the doctrine of stare decisis to be applicable, there are two basic prerequisites, first that there must be authentic reporting of decisions of courts. The second requirement is an established hierarchy of courts. The principle that the decisions of higher forums would be binding on lower forums is referred to as vertical stare decisis while that the decisions of forums would be binding on coordinate or coequal benches is known as horizontal stare decisis. The great value of the doctrine of stare decisis is that it provides certainty. While the doctrine of stare decisis is in the interest of public policy, there are number of disadvantages of the doctrine.
In view of the large numbers of pronouncements of the Supreme Court and high courts it is difficult to locate all the precedents. Also, even in case of an erroneous decision, lower forums are bound to follow the decision as precedent. Contrary decisions, of coordinate benches can create confusion for lower forums. Another major disadvantage is that if a strict interpretation is given to this doctrine, and precedents are considered to be binding even on the highest forums, it may hinder the development of law which is necessary with changes in society. Stare decisis is not meant to be an inflexible rule that hinders the development of law. The Supreme Court appears to have taken this view in the Mirzapur Moti Kureshi Kasab case that while stare decisis is ordinarily to be adhered to, precedents can be reconsidered in view of changed circumstances where there are compelling reasons to do so. Thus, while the doctrine of stare decisis should generally be adhered to, the same should not be interpreted in a manner as to hinder the development of law and the correction of erroneous decisions. At the same time, the power to reconsider decisions cannot be given forum and thus, it is appropriate that the power remains with higher forums to the court that rendered the decision.
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