Precedent - Law of Precedent

Departure

Law of Precedent

In Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, the Supreme Court overruled its own decision in State of Bombay v. The United Motors Ltd., AIR 1953 SC 255, observing that the Supreme Court can depart from its previous decisions if it is convinced of its error and its baneful effect on the general interest of the public.

The overruling of a decision is permissible, “if the rule of construction accepted by the Supreme Court is inconsistent with the legal philosophy of the Constitution” (Superintendent and Legal Remembrancer, State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997)

In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Supreme Court held that the court reviews its earlier judgment in

the interest of public good where it had a significant impact on the fundamental rights of the citizens.

In Golaknath v. State of Punjab, AIR 1967 SC 1643, the Supreme Court held that the law in Article 13(2) of the Constitution included the amendment of the Constitution under Article 368 and overruled its two previous judgments in Sankari Prasad v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, where it had been held otherwise. The most important instance of the rule that Supreme Court is not bound by its own decision is in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, as the Golaknath was partly overruled in this case. It was held therein that power of the Parliament to amend the Constitution is derived from Article 245, 246 and 248 and not from Article 368. Therefore, amendment is a legislative process and in case the amendment takes away the right conferred by Part III of the Constitution, it is void.

In Maganlal Chagganlal (Pvt.) Ltd. v. Municipal Corporation of Greater Bombay, AIR 1974 SC 2039, the Supreme Court held that if the previous decision is erroneous and has given rise to public inconvenience and hardship, there is no harm in overruling such decision. (See also: H H Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur v. Union of India, AIR 1971 SC 530; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534; and Subramanian Swamy v. State of T.N., (2014) 5 SCC 75)

Bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law

“40. We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. v. State of Bihar, AIR 1955 SC 66, it was held that the words of Article 141, “binding on all courts within the territory of India”, though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawson’s Settlement Lloyds Bank Ltd. v. Dawson, (1966) 3 All ER 68, on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. 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.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”

2019 SCeJ 3000 VINOD KUMAR v. ASHOK KUMAR GANDHI.