INTRODUCTION
Article 141. The law declared by the Supreme Court shall be binding on all courts within the territory of India.
Binding force of judgement
Precedent is binding for what is
explicitly decides and no more, the decision is an authority for what it
decides and not for what can be logically deducted therefrom. A slight
distinction of facts or additional facts may sometime make a lot of difference.
A slightest deviation in one circumstance becomes a precedent for another. The
words in a judgement are not used after weighing the pros and cons of all
conceivable permutation and combinations of situations that may arise.
In a Constitution Bench judgment in Union of India vs. Raghubir Singh (1989) 2 SCC
754, Chief Justice Pathak [as His Lordship then was] observed as under : "The doctrine of binding
precedent has the merit of promoting a certainty and consistency in judicial
decisions, and enables an organic development of the law, besides providing
assurance to the individual as to the consequence of transactions forming part
of his daily affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a Court."
1. Broadly speaking, every judgment of
superior courts has three segments, namely, (i) the facts and the point at
issue; (ii) the reasons for the decision; and (iii) the final order containing
the decision. It is the ratio decidendi [reasons for the decision] of a
judgment and not the final order in the judgment, which forms a precedent.
2. What is binding is the ratio of the
decision and not any finding of facts. It is the principle found out upon a
reading of a judgment as a whole, in the light of the questions before the Court
that forms the ratio and not any particular word or sentence. A judgment of
the Court has to be read in the context of questions which arose for
consideration in the case in which the judgment was delivered.
3. It is not everything said by a judge
while giving judgment, constitutes a precedent. The enunciation of the reason
or principle on which a question before the court has been decided, is alone
binding as a precedent.
4. A judgment should be understood in the
light of the facts of that case, and no more should be read into it than what
it actually says.
5. Every judgment to qualify to be a
precedent should invariably answer an issue of law; and a decision is available
as a precedent only if it decides a question of law.
6. The
only thing binding as an authority upon a subsequent judge is the principle
upon which the case was decided.
7. It is well settled that a decision of the
Apex Court based on specific facts does not operate as a precedent for future
cases. Only the principles of law that emanate from a judgment of the Court,
which have aided in reaching a conclusion of the problem, are binding
precedents within the meaning of Article 141.
8. The expression “declared” in
Article 141 of the Constitution is wider than the words “found or made”.
To declare is to announce opinion. Interpretation, ascertainment and evolution
are parts of the process, while that interpreted, ascertained or evolved is
declared as law.
AIR 2004 SC 2890 Mahmood Dawood
Sheikh vs. State of Maharashtra (2 judges)
Para 13: That being so, the
Judgment in Harjeet Singh's case (supra) does not in any assist the
appellant. There is no such thing as a judicial precedent on facts though
counsel, and even Judges, are sometimes prone to argue and to act as if they
were, said Bose J. about half century back in Willie (William) Slaney vs.
The State of Madhya Pradesh, (1955(2) SCR 1140 at page 1169).
A decision is available as a
precedent only if decides a question of law. A Judgement should be understood
in the light of facts of that case and no more should be read into it than what
it actually says. It is neither desirable nor permissible to pick out a word or
a sentence from the Judgement of this Court divorced from the context of the
question under consideration and treat it to be complete law decided by this
Court. The Judgement must be read as a whole and the observations from the
Judgement have to be considered in the light of the questions which were before
this Court.
HOW THE LAW IS DECLARED OR LAID
DOWN
AIR 1992 SC 1593 State of
Punjab vs. Surindra Kumar (3 judges)
Para 6: A decision is available
as a precedent only if it decides a question of law.
[(2012) 3 SCC 387] Sudebanand
vs. State through CBI (2 judges)
Para 28: Now, the interpretation
of a legal provision and its application to a set of facts are two different
exercises requiring different approaches.
28.1: "Interpretation"
means the action of explaining the meaning of something. For interpreting a
statutory provision, the court is required to have an insight into the
provision and unfold its meaning by means of the well-established canons of
interpretation, having regard to the object, purpose, historicism of the law
and several other well-known factors. But, what is important to bear in mind is
that the interpretation of a legal provision is always independent of the facts
of any given case.
28.2: "Application"
means the practical use or relevance (of something to something); the
application of a statutory provision, therefore, is by definition case related
and as opposed to interpretation, the application or non-application of a
statutory provision would always depend on the exact facts of a given case.
Anyone associated with the process of adjudication fully knows that even the
slightest difference in the facts of two cases can make a world of difference
on the question whether or not a statutory provision can be fairly and
reasonably applied to it.
AIR 1991 SC 101 (Constitution
Bench of Five Judges) DTC vs. DTC Majdoor Congress
The expression “declared” is
wider than the words “found or made”. To declare is to announce opinion. Indeed
the latter involves the process, while the former expresses the result.
Interpretation, ascertainment and evolution are parts of the process, while
that interpreted, ascertained or evolved is declared as law.
(2003) 6 SCC 697 [Constitution
Bench of Five Judges] Islamic Academy of Education vs. State of
Karnataka & Ors.
Para 2: The ratio decidendi of a
judgment has to be found out only on reading the entire judgment. In fact, the
ratio of the Judgement is what is set out in the Judgement itself. The answer
to the question would necessarily have to be read in the context of what is set
out in the Judgement and not in isolation. In case of any doubt as regards any
observations, reasons and principles, the other part of the Judgement has to be
looked into. By reading a line here and there from the judgment, one cannot
find out the entire ratio decidendi of the judgment.
Para 139: A judgment, it is
trite, is not to be read as a statute. The ratio decidendi of a Judgement is
its reasoning which can be deciphered only upon reading the same in its
entirety. The ratio decidendi of a case or the principles and reasons on which
it is based is distinct from the relief finally granted or the manner adopted
for its disposal. [See, Executive Engineer, Dhenkanal Minor Irrigation
Division, Orissa and Ors vs. N.C. Budharaj (Deceased) By LRs. and Ors]
Para 143: It will not, therefore,
be correct to contend, as has been contended by Mr. Nariman, that answers to
the questions would be the ratio to a judgment. The answers to the questions
are merely conclusions. They have to be interpreted, in a case of doubt or
dispute with the reasons assigned in support thereof in the body of the
judgment, wherefore, it would be essential to read the other paragraphs of the
Judgement also. It is also permissible for this purpose (albeit only in certain
cases and if there exist strong and cogent reasons) to look to the pleadings of
the parties.
2007 (3) SCC 720 (Three Judges
Bench) Sanjay Singh & Ors. vs. UPSC & Ors.
Para 10: Broadly speaking, every
judgment of superior courts has three segments, namely, (i) the facts and the
point at issue; (ii) the reasons for the decision; and (iii) the final order
containing the decision. It is the ratio decidendi of a judgment and not the
final order in the judgment, which forms a precedent.
2011 (12) SCC 615 (Two judges
Bench) Fida Hussain vs. Moradabad Development Authority
Para 18. In the case of Director of
Settlements, A.P. vs. M.R. Apparao, (2002) 4 SCC 638, this Court
held:
"7. So far as the first
question is concerned, Article 141 of the Constitution unequivocally indicates
that the law declared by the Supreme Court shall be binding on all courts
within the territory of India. The aforesaid Article empowers the Supreme Court
to declare the law. It is, therefore, an essential function of the Court to
interpret a legislation. The statements of the Court on matters other than law
like facts may have no binding force as the facts of two cases may not be
similar. But what is binding is the ratio of the decision and not any finding
of facts. It is the principle found out upon a reading of a judgment as a
whole, in the light of the questions before the Court that forms the ratio and
not any particular word or sentence... A judgment of the Court has to be read
in the context of questions which arose for consideration in the case in which
the judgment was delivered. ... The law which will be binding under Article 141
would, therefore, extend to all observations of points raised and decided by
the Court in a given case..."
20. It is now well settled that a
decision of this Court based on specific facts does not operate as a precedent
for future cases. Only the principles of law that emanate from a judgment of
this Court, which have aided in reaching a conclusion of the problem, are
binding precedents within the meaning of Article 141. However, if the question
of law before the Court is same as in the previous case, the judgment of the
Court in the former is binding in the latter, for the reason that the question
of law before the Court is already settled. In other words, if the Court
determines a certain issue for a certain set of facts, then, that issue stands
determined for any other matter on the same set of facts.
[(1990) 3 SCR 352] Five Judges
Bench – Krishna Kumar vs. Union of India
It was observed that the
enunciation of the reason or principle upon which a question before a Court has
been decided is alone binding as a precedent, and the ratio decidendi is the
underlying principle, namely, the general reasons or the general grounds upon
which the decision is based on the test or abstract the specific pecularities
of the particular case which gives rise to the decision.
PRECEDENTS – JUDGMENTS DELIVERED
BY SINGLE BENCH – DIVISION BENCH – CONSTITUTION BENCH ETC.
Siddharam Satlingappa Mhetre
vs. State of Maharashtra and Ors (2011) 1 SCC 694 –The judgment of a
larger strength is binding not only on a judgment of smaller strength but the
judgment of a co-equal strength is also binding on a Bench of Judges of
co-equal strength.
A three-Judge Bench of this Court
in Official Liquidator vs. Dayanand and Ors (2008) 10 SCC 1 again
reiterated the clear position of law that by virtue of Article 141 of the
Constitution, the judgment of the Constitution Bench in State of Karnataka
and Others vs. Umadevi (3) and Others (2006) 4 SCC 1 is binding on
all Courts including this Court till the same is overruled by a larger Bench.
Para 60 …. Likewise, there have
been instances in which smaller Benches of this Court have either ignored or
bypassed the ratio of the judgments of the larger Benches including the
Constitution Benches. These cases are illustrative of non-adherence to the rule
of judicial discipline which is sine qua non for sustaining the system.
Para 65. ……….The learned
Attorney-General submitted that a Constitution Bench judgment of this Court was
binding on smaller Benches and a judgment of three learned Judges was binding
on Benches of two learned Judges -- a proposition that learned counsel for the
appellants did not dispute.
…..In our view, judicial
discipline and propriety demands that a Bench of two learned Judges should
follow a decision of a Bench of three learned Judges.
Para 66 ……"the law laid down
in a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or co-equal strength and it would be inappropriate
if a Division Bench of two Judges starts overruling the decisions of Division
Benches of three Judges. The Court further held that such a practice would be
detrimental not only to the rule of discipline and the doctrine of binding
precedents but it will also lead to inconsistency in decisions on the point of
law; consistency and certainty in the development of law and its contemporary
status - both would be immediate casualty"
In the case of P. Ramachandra
Rao vs. State of Karnataka, a 7 Judges Bench of the Apex court, in
respect of doctrine of precedents, observed to say that –
The well settled principle of
precedents which has crystallized into a rule of law is that a bench of lesser
strength is bound by the view expressed by a bench of larger strength and
cannot take a view in departure or in conflict therefrom. (Para 29)
AIR 2011 SC 421 [two judges
bench] Safiya Bee vs. Mohd. Vajahath Hussain
In Central Board of Dawoodi
Bohra Community and Anr. vs. State of Maharashtra and Anr. [(2005) 2
SCC 673], (para 12), a Constitution Bench of this Court summed up the legal
position in the following terms :
"(1) The law laid down by
this Court in a decision delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum
cannot disagree or dissent from the view of the law taken by a Bench of larger
quorum. In case of doubt all that the Bench of lesser quorum can do is to
invite the attention of the Chief Justice and request for the matter being
placed for hearing before a Bench of larger quorum than the Bench whose
decision has come up for consideration. It will be open only for a Bench of
co-equal strength to express an opinion doubting the correctness of the view
taken by the earlier Bench of co-equal strength, whereupon the matter may be
placed for hearing before a Bench consisting of a quorum larger than the one
which pronounced the decision laying down the law the correctness of which is
doubted.
(3) The above rules are subject
to two exceptions : (i) The above said rules do not bind the discretion of the
Chief Justice in whom vests the power of framing the roster and who can direct
any particular matter to be placed for hearing before any particular Bench of
any strength; and
(ii) In spite of the rules laid
down herein above, if the matter has already come up for hearing before a Bench
of larger quorum and that Bench itself feels that the view of the law taken by
a Bench of lesser quorum, which view is in doubt, needs correction or
reconsideration then by way of exception (and not as a rule) and for reasons
given by it, it may proceed to hear the case and examine the correctness of the
previous decision in question dispensing with the need of a specific reference
or the order of Chief Justice constituting the Bench and such listing."
The above principles and norms
stated with reference to the Supreme Court are equally relevant and applicable
to the High Court also.
DOCTRINE OF PRECEDENTS VIS A VIS
TO DOCTRINE OF STARE DECISIS
[AIR 2001 SC 8] [2 JUDGES] SAURASHTRA
CEMENT AND CHEMICAL vs. UOI
Para 32. On the other count Mr.
Chidambaram's submission pertaining to delegated legislation in taxing statute
however, does not call for any detail discussion since the authority of the
legislature in introducing the Act of 1957 cannot be doubted in any way and in
any event is a settled proposition of law for more than a decade and it is on
this score that the doctrine of stare decisis has its due application in the
contextual facts and in this context the decision of this Court in Mishri
Lal's case, (Mishri Lal (d) by L.Rs. vs. Dhirendra Nath (d) by
L.Rs., (1999) 4 SCC 11 : (1999 AIR(SCW) 2350 : AIR 1999 SC 2286) seem to be
rather apposite. This Court observed :
11. It is further to be noted
that Meharban Singh's case, (AIR 1971 SC 77) came to be decided as early
as 1970 and has been followed for last three decades in the State of Madhya
Pradesh and innumerable number of matters have been dealt with on the basis
thereof and in the event, a different view is expressed today, so far as this
specific legislation is concerned, it would unsettle the situation in the State
of Madhya Pradesh and it is on this score also that reliance on the doctrine of
'stare decisis' may be apposite. While it is true that the doctrine has no
statutory sanction and the same is based on a Rule of convenience and
expediency and as also on 'Public Policy' but in our view, the doctrine should
and ought always to be strictly adhered to by the Courts of law to sub-serve
the ends of justice.
12. This Court in Maktul vs.
Mst. Manbhari, 1959 SCR 1099 , explained the scope of the doctrine of
stare decisis with reference to Halsbury's Laws of England and Corpus Juris Secundum
in the manner following :-
"The principles of 'Stare
Decisis' is thus stated in Halsbury's Laws of England :
"Apart from any question
as to the Courts being of co-ordinate jurisdiction, a decision which has been
followed for a long period of time, and has been acted upon by persons in the
formation of contracts or in the disposition of their property, or in the
general conduct of affairs, or in legal procedure or in other ways, will
generally be followed by Courts of higher authority than the Court establishing
the rule, even though the Court before whom the matter arises afterwards might
not have given the same decision had the question come before it originally.
But the supreme appellate Court will not shrink from overruling a decision, or
series of decisions, which establish a doctrine plainly outside the statute and
outside the common law, when no title and no contract will be shaken, no
persons can complain, and no general course of dealing be altered by the remedy
of a mistake".
The same doctrine is thus
explained in Corpus Juris Secundum :-
"Under the stare decisis
rule, a principle of law which has become settled by a series of decisions
generally is binding on the Courts and should be followed in similar cases.
This rule is based on expediency and public policy, and, although generally it
should be strictly adhered to by the Courts, it is not universally applicable."
13. Be it noted however that Corpus
Juris Secundum, adds a rider that "previous decisions should not be
followed to the extent that grievous wrong may result; and, accordingly, the
Courts ordinarily will not adhere to a rule or principle established by
previous decisions which they are convinced is erroneous. The rule of stare
decisis is not so imperative or inflexible as to preclude a departure therefrom
in any case, but its application must be determined in each case by the
discretion of the Court, and previous decisions should not be followed to the
extent that error may be perpetuated and grievous wrong may result.
14. The statement though
deserves serious consideration in the event of a definite finding as to the
perpetration of a grave wrong but that by itself does not denude the time
tested doctrine of Stare Decisis its efficacy".
Para 33. The two English decisions (Admiralty
Commrs. vs. Valverda Owners, (1938) AC 173 at 194 and Button vs.
Director of Public Prosecution, Swain vs. Director of Public
Prosecutions, (1966) AC 591 also sound a similar note.
Para 34 Recently Paripoornan, J. in Kattite
Valappil Pathumma vs. Taluk Land Board, (1997) 4 SCC 114 : (1997
AIR(SCW) 1142 : AIR 1997 SC 1115) in paragraph 18 observed :
"We are further of the
view, that even if another view is possible, we are not inclined to take a
different view at this distance of time. Interpretation of the law is not a
mere mental exercise. Things which have been adjudged long ago should be
allowed to rest in peace. A decision rendered long ago can be overruled only if
this Court comes to the conclusion that it is manifestly wrong or unfair and
not merely on the ground that another interpretation is possible and the Court
may arrive at a different conclusion. We should remember that the law laid down
by the High Court in the above decision has not been doubted so far. The Act in
question is a State enactment. These are weighty considerations to hold that
even if a different view is possible, if it will have the effect of upsetting
or reopening past and closed transactions or unsettling titles all over the
State, this Court should be loathe to take a different view. On this ground as
well, we are not inclined to interfere with the Judgement under appeal."
Para 35. On the wake of the aforesaid,
we do feel it expedient to record that taking recourse to the doctrine as above
would be an imperative necessity, so to avoid uncertainty and confusion, since
the basic feature of law is its certainty and in the event of any departure
therefrom the society would be in utter confusion and the resultant effect of
which would be legal anarchy and judicial indiscipline - a situation which
always ought to be avoided. The central legislature introduced the legislation
(MMRD Act) in the year 1957 and several hundreds and thousands of cases have
already been dealt with on the basis thereof and the effect of a declaration of
a contra law would be totally disastrous affecting the very basics of the
revenue jurisprudence. It is true that the doctrine has no statutory sanction
but it is a rule of convenience, expediency; prudence and above all the public
policy. It is to be observed in its observance rather than in its breach to
serve the people and subserve the ends of justice.
2011 (2) SCC 132 [2 JUDGES] SHANKER
RAJU vs. UOI
Para 9. It is a settled principle of
law that a judgment, which has held the field for a long time, should not be
unsettled. The doctrine of stare decisis is expressed in the maxim "stare
decisis et non quietamovere", which means "to stand by decisions
and not to disturb what is settled." Lord Coke aptly described this in his
classic English version as "those things which have been so often adjudged
ought to rest in peace." The underlying logic of this doctrine is to
maintain consistency and avoid uncertainty. The guiding philosophy is that a
view which has held the field for a long time should not be disturbed only
because another view is possible. This has been aptly pointed out by
Chandrachud, C.J. in Waman Rao vs. Union of India, (1981) 2 SCC
362 at pg. 392 thus:
"40. ... for the
application of the rule of stare decisis, it is not necessary that the earlier
decision or decisions of longstanding should have considered and either
accepted or rejected the particular argument which is advanced in the case on
hand. Were it so, the previous decisions could more easily be treated as
binding by applying the law of precedent and it will be unnecessary to take
resort to the principle of stare decisis. It is, therefore, sufficient for
invoking the rule of stare decisis that a certain decision was arrived at on a
question which arose or was argued, no matter on what reason the decision rests
or what is the basis of the decision. In other words, for the purpose of
applying the rule of stare decisis, it is unnecessary to enquire or determine
as to what was the rationale of the earlier decision which is said to operate
as stare decisis."
10 In Manganese Ore (India)
Ltd. vs. Regional Asstt. CST, (1976) 4 SCC 124, at page 127, it was
opined that the doctrine of stare decisis is a very valuable principle of
precedent which cannot be departed from unless there are extraordinary or
special reasons to do so.
11 In Ganga Sugar Corpn. vs.
State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned that,
"the Judgments of this Court are decisional between litigants but
declaratory for the nation." This Court further observed:
"28. ... Enlightened
litigative policy in the country must accept as final the pronouncements of
this Court... unless the subject be of such fundamental importance to national
life or the reasoning is so plainly erroneous in the light of later thought
that it is wiser to be ultimately right rather than to be consistently wrong.
Stare decisis is not a ritual of convenience but a rule with limited
exceptions."
12 In Union of India vs. Raghubir
Singh, (1989) 2 SCC 754, at page 766, this Court has enunciated the
importance of doctrine of binding precedent in the development of jurisprudence
of law:
"8. Taking note of the
hierarchical character of the judicial system in India, it is of paramount
importance that the law declared by this Court should be certain, clear and
consistent. It is commonly known that most decisions of the courts are of
significance not merely because they constitute an adjudication on the rights
of the parties and resolve the dispute between them, but also because in doing
so they embody a declaration of law operating as a binding principle in future
cases. In this latter aspect lies their particular value in developing the
jurisprudence of the law.
9. The doctrine of binding
precedent has the merit of promoting a certainty and consistency in judicial
decisions, and enables an organic development of the law, besides providing
assurance to the individual as to the consequence of transactions forming part
of his daily affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court."
13 In Krishena Kumar vs. Union
of India, (1990) 4 SCC 207, at page 233, this Court has explained the
meaning and importance of sparing application of the doctrine of Stare Decisis:
"33. Stare decisis et non
quietamovere. To adhere to precedent and not to unsettle things which are
settled. But it applies to litigated facts and necessarily decided questions.
Apart from Article 141 of the Constitution of India, the policy of courts is to
stand by precedent and not to disturb settled point. When court has once laid
down a principle of law as applicable to certain state of facts, it will adhere
to that principle, and apply it to all future cases where facts are
substantially the same. A deliberate and solemn decision of court made after
argument on question of law fairly arising in the case, and necessary to its
determination, is an authority, or binding precedent in the same court, or in
other courts of equal or lower rank in subsequent cases where the very point is
again in controversy unless there are occasions when departure is rendered
necessary to vindicate plain, obvious principles of law and remedy continued
injustice. It should be invariably applied and should not ordinarily be
departed from where decision is of long standing and rights have been acquired
under it, unless considerations of public policy demand it."
14 In Union of India &Anr.
vs. Paras Laminates (P) Ltd, (1990) 4 SCC 453 at pg. 457, this Court
observed as under :-
"9. It is true that a
bench of two members must not lightly disregard the decision of another bench
of the same Tribunal on an identical question. This is particularly true when
the earlier decision is rendered by a larger bench. The rationale of this rule
is the need for continuity, certainty and predictability in the administration
of justice. Persons affected by decisions of tribunals or courts have a right
to expect that those exercising judicial functions will follow the reason or
ground of the judicial decision in the earlier cases on identical matters".
It has been opined that in the
absence of a strict rule of precedent, litigants would take every case to the
highest court, in spite of a ruling to the contrary, in the hope that the
decision may be overruled.
