Doctrine of Judicial Precedent and their declining credibility

INTRODUCTION

It is Endeavour of any civilized society to be governed by rule of law and which necessarily requires ‘Law”. Precedents have been recognized as one of the source of law. Judges make law is now acknowledge concept.   Important limb of “Rule of Law” is the even application of  laws and by following precedents this object of Rule of Law is also achieved[2]  But the recent Judgment   in Anil kumar v/s M K  Aiyappa [3] has weakened the credibility of judicial precedent  by holding that magistrate can not direct for registration of FIR agains public servants without sanction in view of bar contained in section 197 of I P C and section 19 of PC Act 1988 is against the judgment of  state of Karanataka v/s P P Raju[4]in which this issue was decided but without considering the above judgment of co-equal bench give a irrational judgment which is totally against the age old concept of judicial ethics, discipline and judicial propriety  and this judgment is sure to be reversed by supreme court in coming days. Such type of decisions lower down the dignity of judicial precedent . In order to understand the  increasing weakening  circumstance of judicial precedents in India  it will be better to understand the meaning and concept of judicial precedent prevailing in the country.     

WHAT IS MEANT BY A PRECEDENT?

In the language of a layman the term ‘precedent’ implies that what was done before should be done again the same way. The method adopted in any problem solving exercise is to find out if a similar problem has been tackled before. If yes, then the next step is to find out the degrees of similarity that exists between the problems. If the similarities are found to be significant then next it needs to be analyzed whether the same principle that was applied to the previously solved problem can be applied successfully to solve the problem at hand. This way the precedent works as an effective guide to solve new problems having similarity with the earlier one. This helps in achieving consistency and certainty in legal matters. And the corollary of this situation is that people making decisions are often afraid to do something new and striking in case ‘it creates a precedent’[5] In view of that  in  The Government of India Act, 1935,Section 212 provided for the binding nature of the decisions of the Federal Court and the Privy Council upon all Courts, and  after independence doctrine of precedents received Constitutional recognition under Article141 of the Constitution of India while providing that the law declared by the Supreme Court shall be binding on all courts and tribunals within the territory of India. The law laid down by the Supreme Court is binding on all Courts and tribunals of the Country.

 

WHAT IS THE BINDING ELEMENT OF A CASE

Every judgment contains four major elements:

• statement of material (relevant) facts

• statement of legal principle(s) material to the decision – the ratio decidendi / stare decisis

• discussion of legal principles raised in argument but not material to the decision – obiter dicta

• the decision or verdict

 

Ordinarily, a court will decide only the questions necessary for determining the  particular case presented. But once a court acquires jurisdiction, all material questions are open for its decision; it may properly decided all questions so involved, even though it is not absolutely essential to the result that all should be decided. It may, for instance, determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictumis distinguished from the holding of the court in that the so- called; law of the case & does not extend to mere dicta, and mere dicta are not binding under the doctrine of stare decisis,

As applied to a particular opinion, the question of whether or not a certain part thereof is or is not a mere dictum is sometimes a matter of argument. And while the terms; dictum; obiter dictum; are generally used synonymously with regard to expressions in an opinion which are not necessary to support the decision, in connection with the doctrine of stare decisis, a distinction has been drawn between mere obiter and ;judicial dicta; the latter being an expression of opinion on a point deliberately passed upon by the court,

In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding has been said to be that a question actually before the court and decided by it is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. [6]

It is not the entire judgment that is binding on the lower courts but only the ratio decidendi. The ratio decidendi of a case is the underlying principle or legal reason on which the result of the case depends. This ratio is different from the obiter dicta which is not held to be binding but may be regarded as having persuasive control. And what we are concerned with is not who won or lost but the legal principles that can be extracted from the case which is known as the ratio decidendi. In the words of the Supreme Court: “A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.”

It is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.[7]

 

In Arun kumar agarwal’s case, the supreme court has held that in in the facts and circumstances of the present case, we are of the opinion that the refusal of the learned Special Judge, vide its Order dated 26.4.2005, to accept the final closure report submitted by Lokayukta Police is the only ratio decidendi of the Order. The other part of the Order which deals with the initiation of Challan proceedings cannot be treated as the direction issued by the learned Special Judge. The relevant portion of the Order of the learned Special Judge dealing with  Challan Proceeding reads as”Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1-d), 13 (2) Anti Corruption Act and under Section 120-B I.P.C and for necessary further action, case be registered in the criminal case diary. The wordings of this Order clearly suggest that it is not in the nature of the command or authoritative instruction. This Order is also not specific or clear in order to direct or address any authority or body to perform any act or duty. Therefore, by no stretch of imagination, this Order can be considered or treated as the direction issued by the learned Special Judge. The wholistic reading of this Order leads to only one conclusion, that is, it is in the nature of `Obiter Dictum' or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view. Therefore, this portion of the Order dealing with Challan proceeding, is neither relevant, pertinent nor essential, while deciding the actual issues which were before the learned Special Judge and hence, cannot be treated as the part of the Judgment of the learned Special Judge.[8]

 

The principle of stare decisis can be divided into two components or principles:

The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and does occasionally ignore.

Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority.[9]

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon. The same learned author who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. In India, The Supreme Court of India is the supreme authority in legal matters as it is the highest judicial body and the cases decided by it form the precedent for all the other courts in India; it includes the High Courts, district courts and the other lower courts. The Supreme Courts serves as the precedential body, resolving conflicting interpretations of law. Whatever this court decides becomes judicial precedent.

Thus, what is to be ascertained from reading of the whole judgment is as to what is the principle of law which has been laid down in the decision. It is necessary to ascertain the rationale of the judgment on the point of law. it has been observed that it has to be ascertained as to what principle has been laid down in the judgment, in context with the question involved and stray sentences and words do not constitute a precedent[10].

As general rule a decision of Bench consisting of larger number of Judges prevails over the decision rendered by a Bench of lesser number of Judges. Even in a case where there may be a later decision but a decision rendered earlier on the point by a Bench consisting larger number of Judges have the binding effect.[11]So far decisions of High Courts are concerned, they have binding effect within the State and the decisions of the High Courts of other States have on persuasive force. The High Court while deciding a matter, if faced with decisions of its own High Court of co-equal number of Judges, taking irreconcilable view on the point. the proper course is to refer the matter to larger Bench as this alone Is considered to be appropriate. The difficult however, is often faced by the Courts when two decisions of the Benches of the higher court consisting of co- equal number of Judges are cited on one point and the two decisions cannot be reconciled. The view which is coming down since long has been that the later decision will have the binding effect as it would be taken that the earlier view stands impliedly over-ruled by the later decision.

The view which is being now taken is that a decision which is better on point of law should be preferred. The rationale behind the later view is that fortuitous chance of point of time has no relevance and it should not be the deciding factor as to which case should be followed. That  when the Court which is faced with two contrary views on one point decided by Benches of co-equal number of Judges, must find out, which of the two views, is better or more accurate on point of law and that should be followed. But there seems to be adrift in the view that the later decision will have binding effect. The view which is being now taken is that a decision which is better on point of law should be preferred. The rationale behind the later view is that fortuitous chance of point of time has no relevance and it should not be the deciding factor as to which case should be followed. held that the Court which is faced with two contrary views on one point decided by Benches of co-equal number of Judges, must find out, which of the two views, is better or more accurate on point of law and that should be followed.

An excerpt  view from the Constitutional Law of India by Seervai  in this regard as follows:

"...But judgment of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and subordinate Courts. It is submitted that in such circumstances the correct thing is to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgment."[12] The position that emerges, in view of some later decisions of some of the High Courts, indicated above, is that presently it is the task of the lower Court to find out which of the two conflicting decisions of the higher Court is more accurate on the point of law and to follow the same. Possibility of different views as to which of the two judgments is more accurate on point of law .[13]

CIRCUMSTANCES WEAKENING THE BINDING FORCE OF PRECEDENTS. 

1. ABROGATED DECISIONS: A decision ceases to be binding if a statute or statutory rule is inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court. 

2. IGNORANCE OF STATUTE: A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of statute i.e. delegated legislation. Such decisions are per incuriam and not binding . The mere fact that the earlier court misconstrued a statute or ignored a rule of construction is no ground for impugning the authority of precedent. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court . Such decisions are also per incuriam. A court is not bound by its own decision that is in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on later courts. In this circumstances the rule is that where there are previous inconsistent decisions of its own , the court is free to follow either i.e. earlier or later. 

To come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.

Sibbia's case (supra). The decisions of this Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 and Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench in Sibbia's case (supra). He submitted that all these orders which  19 are contrary to the clear legislative intention of law laid down in Sibbia's case (supra) are per incuriam. He also submitted that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength. 33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that the dictum in the judgment of the Constitution Bench has to be preferred over the subsequent decisions

He also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3 SCC 677 and State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in case of conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller Bench.  Mr. Jethmalani submitted that not only the decision in Sibbia's case (supra) must be followed on account of the larger strength of the Bench that delivered it but the subsequent decisions must be held to be per incuriam and hence not binding since they have not taken into account the ratio of the judgment of the Constitution Bench.  He further submitted that as perthe doctrine of `per incuriam', any judgment which has been passed in ignorance of or without considering a statutory provision or a binding precedent is not good law and the same ought to be ignored.  perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anotherlaid down in para 42 by the Constitution Bench that the normal rule is not to limit operation of the order of anticipatory bail, was not taken into account by the courts passing the subsequent judgments. The observations made by the courts in the subsequent judgments have been made in ignorance of and without considering the law laid down in para 42 which was binding on them. In these circumstances, the observations made in the subsequent judgments to the effect that anticipatory bail should be for a limited period of time, must   be construed to be perincuriam and the decision of the Constitution Bench preferred. He further submitted that the said issue came up for consideration before the Madras High Court reported in Palanikumar and Another v. State 2007 (4) CTC 1 wherein after discussing all the judgments of this court on the issue, the court held that the subsequent judgments were in conflict with the decision of the Constitution Bench in Sibbia's case (supra) and in accordance with the law of precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that judgment has to be applicable [14]

In State of Bihar v. Kalika Kuer @ Kalika Singh and others AIR 2003 SC 2443 this Court held that when an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of coordinate jurisdiction. The Court held that easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways – either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. In this respect reference may also be made[15]

 

3 SUB SILENTIO: Precedents sub silentio or not argued: A decision passes sub silentio when the particular point of law involved in decision is not perceived by the court or present to its mind. When a decision is on point A upon which judgement is pronounced but there was another point B on which also court ought to have pronounced before deciding he issue in favour of the party, but that was not argued or considered by the Court. In such circumstances although point B was logically involved in the facts and although the case had a specific out come , the point B is said to pass sub silentio.[ Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A) ] . It is rightly said that an hundred precedent sub silentio are not material. Where a judgement is given without the losing parties having been represented , there is no assurance that all the relevant consideration have been brought to the notice of the court and consequently the decision ought not be regarded as absolute authority even if it does not fall within sub silentio rule. A precedent is not destroyed merely because it was badly argued , inadequately considered and fallaciously reasoned. Total absence of argument vitiates the precedent. A decision is an authority only for what it actually decides and not for what may logically or remotely follows from it. Decision on a question which has not been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990 SC 781: 1990(2) SCC 71: 1989 Supp. (1) SCR 510: 1989(2) Scale 982When observation of the court on a question about validity of a statutory provision which was neither raised nor argued would not be a binding precedent.Rajpur Ruda Meha and others v. State of Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677. 

Judgment it is for the Government to take a decision relating to the number of seats and not the Committee constituted by the State Government. The further submission of the learned Counsel for the petitioner is that only NCTE has got power to regulate the admission and not the Government or its Committee. According to petitioner's Counsel the judgment of Allahabad High Court in Writ Petition No. 36619 of 2004, Association of Professional Colleges and Ors. v. State of Uttar Pradesh and Anr. and other connected petitions decided on 21.12.2004 is per-incuriam to apex Court judgment and sub-silentio illegal.[16]

5. DISTINGUISHING: A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principles involved is the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them. 

If a Court deems fit to follow a precedent of a superior court the proper course , in such a case, is to try to find out and follow the opinions expressed by larger benches of SuperiorCourt in the manner in which it had done this. The proper course for a Court , is to try to find out and follow the opinions expressed by larger benches of superior Court in preference to those expressed by smaller benches of the Court. If, however, the Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should say so giving reasons supporting its point of view. [17]

Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds itself unable to accept the earlier view, it shall be justified in deciding the matter in a different way.[18]

6. OVERRULING: A higher court can overrule a decision made in an earlier case by a lower court eg. the Court of Appeal can overrule an earlier High Court decision. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. The overruling is retrospectively except as regards matters that are res judicata or accounts that have been settled in the meantime. 

The Apex Court or any superior court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilized rigidity nor can it allow revolutionary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonize the new principles too quickly before their saintliness has been affirmed by the passage of time. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience.[19]Decision of Full Bench of High Court passed after considering the local conditions and history should not be easily disturbed. [20]

7. REVERSING:. Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision. 

8. CONCESSION: Concession made by counsel on a question of law is not binding as precedent.[21]

 

9. CONSENT: When a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. [22] 

10. NON SPEAKING ORDER: Non speaking order dismissing special leave petition would not constitute binding precedent as to the ratio of the High Court involved in the decision against which special leave petition to appeal was filed. [23]the law can be laid down that court must give reasons for reaching conclusion. the judgment of court below do not comply with the requirement of statutory provisions as laid down in Cr.P.C.the court ought not to have given defective and cryptic judgment. In fact it is no judgment in eye of laws.[24]

11.SPECIFIC EXCLUSION:A judgment stating therein itself that the ratio laid down there in shall not be binding precedent or shall not be followed or relied upon , can not be treated as binding precedent.[25]

12 .ON FACTS: If a judgment is rendered merely having regard to the fact situations obtaiing therein , the same could not be declaration of law within meaning of Article 141.[26] There is nothing in the Constitution which prevent the Supreme Court from the reversing its previous decision[27]. An earlier decision cannot be departed unless there are extra-ordinary or special reasons for doing so.

Non-consideration for foreign decisions. The decision of Constitution Bench which held the field a quarter of century without challenge. Reconsideration on account of non-consideration of an American decision, not cited before the bench, is not called for. [28]

Thus, one of the tools of an Advocate to persuade a Court on the point canvassed before it, that is to cite a binding precedent, is not always without limitations and it has to be an endevour of every advocate to perform an exercise to find out the ratio decidendi of a judgement and its relevancy to the proposition put before the court in the context of the facts of the case, before the same is quoted.

PRINCIPLES OF PROSPECTIVE OVERRULING

Prospective overruling implies that an earlier decision of the same issue shall not be disturbed till the date of the later judgement. It is resorted to mould relief claimed to meet the justice of the case. It means that relief though the Petitioner may be entitled to in law because of interpretation of the law made by the Supreme Court, the same shall not be applicable to past transactions. Frequently such situations arise in service matters or tax matters where in the person already appointed for a long time based on interpretation of a law by the Apex Court in its earlier judgment , but the same is overruled in the later judgement, and therefore the person already in public employment need not be directed to vacate the post or the tax already imposed and collected is not directed to be refunded.

In normal course, a law declared by supreme court is the law assumed to be from the date of inception and prospective overruling is only an exception when the Supreme Court it self make the applicability of the ration of the judgment prospectively to do complete justice to the parties or to avoid chaos. It is therefore necessary that if a law is to be made applicable prospectively, the same is required to be so declared in the judgment when it is delivered[29]. If Supreme Court does not exercise such discretion to hold that the law declared by it would operate only prospectively, High Court can not of its own do so                                        

ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS

There are both advantages and disadvantages in following the method of precedents in deciding cases.

The most significant advantage is the element of consistency and certainty that is brought in with the application of precedents. A good decision making process must be consistent. Similar cases must be decided similarly to avoid inconsistency. Consistency is perhaps the most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence. The interests of justice also demand impartiality from the judge. In this method the Judges have clear cases to follow. This is assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. And hence this method ensures impartiality from the judge. Case law is practical in character. It is based on the experience of actual cases brought before the courts rather than on logic or theory. Case laws are viable statute law and the rules and principles are derived from everyday life. This means that it should work effectively and be intelligible and is thus practical. It removes any element of ambiguity regarding the authority of the binding precedents and enables lower courts to follow the decisions of higher courts unanimously. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. Also the hierarchy of the courts ensures that lower courts follow higher courts and this leads to an orderly development of law. It is also a convenient timesaving method. If a problem has already been answered, it is natural to reach the same conclusion by applying the same principle. It also helps save unnecessary litigation. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a similarly situated case.

The most evident disadvantage of this method is the rigidity it confers on the development of law. The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding. The cases exemplify the law in great detail, therein lies another weakness of case law. It is in bulk and its complexity makes it increasingly difficult to find the law. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the court of appeal for reconsideration. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. However, the advantage of certainty is lost where there are too many cases or they are too confusing. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

CONCLUSION

Lord Halsbury has said that there is more to the law than a mechanical process of logical deduction. It is obvious that the Judge has in every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the circumstances of his own case are in their essentials similar. Once he has decided which principle to apply, a bit of logic may enter into his application of principles. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction. Generally there is a choice. And this has been explained by Chandrachud, C.J. in Deena v. Union of India as “Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision cited as a precedent.”

However, it must be conceded that stare decisis is only a part of this topic. There is much more. There are substantive rules for the interpretation of statutes, there are unique considerations when principles of the law of equity are involved and problems caused by the evidentiary rules of onus of proof. Yet, while the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare decisis continues to play the pivotal role. The great American judge, Oliver Wendell Holmes Jnr, had said ‘The life of the Law has not been logic; it has been experience’. It can be concluded that for an organized and orderly development of law the method of using judicial precedents is inevitable.

 

Rajasthan high court has declared holiday of 18.03.14. Hundreds of wittiness in criminal trials are summoned for their evidence, some of them come from far distinct places and found that courts are closed. There should be mechanism to inform the litigants / witness summoned to lessen the sufferings of mute and unrepresented witnesses.Courts are declaring holiday unnecessarily  specially when  decision mounting arrears of litigation is challenge to system. Holi is of 16 and 17 march but court  are closed  one day before i.e 15.3.14 and further holiday  one day after Holi i.e. 18.3.14 has been declared by high court.

There is a continuous demand of increasing number of judges  increasing of posts of judges will not alone will be solution unless the BAR and Bench together will not managed the working days. Can this poor or any developing country like India can afford.

J S Rajawat, Advocate

SPL. P P , C B I

[1] Advocate & Spl. P P ,C B I  Email jsrajawat53@gmail.com

[2] AIR 1988 SC 1325

[3] 2014Cr. L J  Page 1

[4] 2006 Cr.L.J 4045

[5] . In the words of a renowned legal philosopher and Scottish politician, MacCormick:

[6] American jurisprudence 2d,Vol.20, at page 437

[7] Arun kumar Agarwal 2011 Cr L J 4935

[8]  Arun kumar agarwal (Supra)

[9] Glanville Williams in Learning the Law (9th ed. 1973),

[10] 1992(4)SCC 363

[11] AIR 1974 SC 1596

[12] Constitutional law of India by Seervai

[13] Article by Justice Brijesh Kumar

[14] Sissharam S Mehetra v/s State 2010 SC

[15] GL Batra v/s Haryana 2013 SC

[16] 2005(3) ESC 2162

[17] Union of India and another v. K.S. Subramanian, AIR 1976 SC 2433;

[18] Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC 623. 

[19] AIR 1974 SC 2009

[20] AIR 1991 SC 1134

[21] AIR 1987 SC 2381: State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC 357.

[22] Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38

[23] Ajit Kumar Rath v/s State of Orissa (1999) 9 SCC 596. 

[24] Premkumar v/s State of Punjab 2013 Cr.L.J. 2973

[25] Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437. 

[26] UP State Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586

[27] AIR 1967 SC 997,410

[28] AIR 1986 SC293, AIR 1971 SC 2313

[29] M.A.Murthy v/s State of Karnataka (2003) 7 SCC 517.

 

 

JasRaj Rajawat 
on 02 April 2014
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