Precedent - Law of Precedent

Precedents: A source of “law” under the Constitution of India

Article 141 of the Constitution lays down that the “law declared” by the Supreme Court is binding upon all the courts within the territory of India. The “law declared” has to be construed as a principle of law that emanates from a judgment, or an interpretation of a law or judgment by the Supreme Court, upon which, the case is decided. Hence, it flows from the above that the “law declared” is the principle culled out on the reading of a judgment as a whole in the light of the questions raised, upon which the case is decided. (See: Fida Hussain v. Moradabad Development Authority (2011) 12 SCC 615; Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213; and CIT v. Sun Engg. Works (P) Ltd. (1992) 4 SCC 363).

The Supreme Court has consistently held that a decision which is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution. In State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139, the Court held that “any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as precedent…. A conclusion without reference to relevant provision of law is weaker than even casual observation”. This principle is not only the evidence of laws but source of law also. It is instrument for persuasion of judges.

Case decided by the court without any consideration on principle of law, cannot be treated as precedent (Vide: Satish Kumar Gupta v. State of Haryana, AIR 2017 SC 2072).

The High Courts are Court of record under Article 215 of the Constitution. By virtue of the provisions of Article 227, the High Courts have power of superintendence over all Courts and tribunals in their respective jurisdiction. Thus, it is implied that all Courts and Tribunals in the respective State will be bound by the decisions of the High Court.

(See: East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893; Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195; and Raval & Co. v. K G Ram Chandran, AIR 1974 SC 818).

The full form of the principle is “Stare decisis et non quieta movere”, which means “stand by decisions and do not move that which is quite”.

There are vertical and horizontal stare decisis. The horizontal one is a rule of prudence, and may be diluted by factors e.g. manifest error, distinction on facts, etc. (vide Keshav Mills Co. Ltd. v. C.I.T. AIR 1965 SC 1636). The vertical principle require only compliance, being a rule of law. It’s breach would cause judicial indiscipline and impropriety. (See: Nutan Kumar v. IInd Additional District Judge AIR 2002 SC 3456).

Judgments of the courts are not computer outputs ensuring consistency and absolute precision but they are product of human thoughts based on the given set of facts and interpretation of the applicable law. If the doctrine of precedent

is not applied, there may be confusion in the administration of law and respect for law would irretrievably suffer.

It is necessary to create a predictable and a non-chaotic condition. The cardinal principle of uniformity is basic principle of jurisprudence that promotes equity, equality, judicial integrity and fairness. Predictability is a powerful tool in the modern law literature.

- Precedents form foundation of administration of justice (Tribhovandas P. Thakker v. Rattilal Motilal Patel, AIR 1968 SC 372).

- Precedents keep the law predictable. (Surinder Singh v. Hardial Singh, AIR 1985 SC 89)

- Follow it to mark Path of Justice (Union of India v. Amrit Lal Manchanda, AIR 2004 SC 1625).

A decision made by a higher court is binding and the lower court cannot over turn it. The court not to overturn its own precedent unless there is a strong reason to do so.

In Union of India v. Raghubir Singh, AIR 1989 SC 1933, the Supreme Court held that the binding precedent is necessary to be followed in order to maintain consistency in judicial decision and enable an organic development of the law. It also provides an assurance to an individual as to the consequence of transactions forming part of his daily affairs.

In Mamleshwar Prasad v. Kanahaiya Lal, AIR 1975 SC 907, the Supreme Court held as under:—

“Certainty of the law, consistency of rulings and comity of Courts – all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.”

The benefit of this doctrine is to provide certainty, stability, predictability and uniformity. It increases the probability of judges arriving a correct decision, on the assumption that collective wisdom is always better than that of an individual. It also preserve the institutional legitimacy and “adjudicative integrity”. It is flexible in nature, as there are ways to avoid precedents. It provides equality in treatment and thus prevents bias, prejudice and arbitrariness and avoids inconsistent / divergent decisions. It prevents uncertainty and ambiguity in law [Union of India v. Raghubir Singh, (1989) 2 SCC 754; and Justice R V Raveendran : “Precedents – Boon or Bane”, (2015) 8 SCC 1 (J)].

The courts have to nurture, strengthen, perpetuate and proliferate certainty of law and not deracinate its clarity (Vide: State of U.P. v. Ajay Kumar Sharma, (2016) 15 SCC 289).

The disadvantages are to find out the ratio decidendi, if there are number of reasons. The distinction can be made on facts to avoid inconvenient precedents.

When it speaks of the law declared, it means only the ratio decidendi of the decision and it may also include obiter dictum, provided it is upon a legal point raised and argued. Several decisions of the Supreme Court are exclusively determined on facts and as the facts of two cases cannot be similar, such decisions cannot be relied upon as precedents for the decision of other cases.

Authoritative precedents are legal sources of law. Observations contained in the opinion of a judgment cannot be regarded as laying down law on the point.

(See: John Martin v. State of W.B., AIR 1975 SC 775)

The use of precedent is an indispensable foundation upon which to decide what is the law and its application in individual case. It provides a basis for orderly development of legal rules. (Vide: Gopabandhu Biswal v. Krishna Chandra Mohanty, AIR 1998 SC 1872).