Doctrine of 'Precedent' in India

"Precedent literally means a rule followed or a principle applied previously by a

competent authority under similar facts and circumstances". If a previous decision by a court is
taken as a basis or source for deciding the case under similar facts and circumstances, It is
called judicial precedent. In general sense, precedence means 'some set pattern guiding the
future conduct. The fundamental principle behind the precedent is that like cases should be
treated alike. In judicial Field it means the guidance or authority of past decision for future
cases. The importance of precedent is precedent is recognized by both ancient law and modern
law.
In every country , there is one Supreme authority having exclusive power of judicial
authority . In India the Supreme Court having such authority. The law declared by the Supreme
Court is binding upon all the other Courts of India including High Courts under Article 141 of the
Indian Constitution. High Court is the Highest tribunal of the State. The decision of High Court
are Binding on all the Subordinate Courts.

Meaning and Definition :

"Precedent, Which are enforceable by law are called judicial precedents." According to
Oxford Dictionary 'Precedent means " A previous instance or case which is or may be taken as
an example of rule for subsequent cases" . (Or by which some similar act or circumstances may
be supported or justified )

a) Bentham : According to Bentham 'Precedents are Judge made laws.

b) Gray : According to Gray , " A precedent covers everything said or done which furnished a
rule for subsequent practice.

c) Keeton : In the words of Keeton ' A Judicial Precedent is a judicial decision to which authority
has in some measure been attached

(See Also...Kinds of Precedent)

1) Ancient India -
 In ancient India we find very little trace of the theory of Precedent.
The judicial cases in those days were not very complicated in nature, nor
were the laws. The ancient judge was not, therefore expected to lay down
any new points or novel dicta. In the medieval period also the doctrine of
Precedent was not in vogue. It is only after the British rule was established
that the theory of Precedent started taking shape and through the passage
of time it acquired great significance.

2) Government of India Act 1935 -

Under the Government of India Act 1935, a Federal Court was
established in India, Section 212 of the Government of India Act :

"The law declared by the Federal Court and by any judgement of the
Privy Council shall, so far as applicable, be recognized as binding on and
shall be followed by all Courts in British India, and so far as respects the
application and interpretation of this Act or any order in Council there under
any matter with respect to which the federal legislature has power to make
laws in relation to the State, in any Federal state"
Thus, the decisions of the Federal Court were made binding on all the
subordinate Courts in India. The Privy Council, however, was to be the
supreme judicial authority. and it was not bound by its own decisions.

3) Attainment of Independence -

After attainment of Independence, the Privy Council no longer

remained the supreme appellate Court for the Indians and the Federal Court
was abolished. The Constitution of India established the Supreme Court as
the final appellate Court. In the States there are High Courts and in the
district there are district Courts. In civil matters, the court of first instance is
the Munsif's Court and in criminal matters that of the Magistrate.

4) High Courts -

Judgements of the particular High Court are binding on all

subordinate to it. For the lower Courts within the jurisdiction of another
High Court, the judgement of another High court have only a persuasive
value. In case of a conflict between the decisions of two High Courts, the
lower court will follow that pronounced by the High court which controls it.

In the high Court, the smallest Bench consists of a single Judge. A

Bench of two Judges is called a Division bench and one compressing three or
more Judges is called a Full Bench. The decision of a larger Bench is binding
on a smaller Bench. Whereas a Bench has no mandate over another Bench
of equal authority. But consideration of judicial propriety and docurum
demand that judges of co-ordinate jurisdiction in a High Court should not
overrule one another's decisions. The usual procedure in case of difference
of opinion with an earlier decision of the same Court is to refer the question
to a larger Bench.

The High Courts inter se possess equal authority. In actual practice

however, judgement of other High Courts are diligently traced and cited in
judgements. Full Bench decision of other High Courts are looked upon with
great reverence.

The decision of the erstwhile Federal Court are binding on the High Courts
only so far as they do not clash with those of the Supreme Court.

Article 225 of the constitution of India says :

 "Subject to the provisions of this Constitution and to the
provision of anus law of the appropriate legislature made by virtue of the
powers conferred on that legislature by this Constitution, the jurisdiction of,
and the law administered in , any existing High Court...Shall be the same as
immediately before the commencement of this article also refer to case law.
Therefore, the pronouncements of the pre-Constitution Privy Council shall be
binding on the High Courts unless they are in conflict with the rulings of the
Supreme Court. If the Supreme Court overrides a pre-Constitution Privy
Council decision, it would lost all force. In case of a conflict between a
judgment of the pre-Constitution Privy Council and that of the federal court,
the former will prevail.
The Supreme Court is the highest judicial tribunal in India. The law
declared by it shall be binding on all Courts in India, excluding however the
Supreme Court itself. The Supreme Court is not bound by its own decisions,
or by those of the Privy Council or federal court.

5) Power of Supreme court under Article 141 of the Constitution -

The authority of the Supreme Court over all other Courts in India has
been given expression in Article 141.
It says that : "The law declared by the Supreme Court shall be binding on
all the Courts within the territory of India " The term 'law declared' has been
interpreted not only to be ratio decidendi of a decision which has been
accorded a binding force, but also to include and obiter dictum, provided it
is a point raised and argued .

(See also.... Difference between Ratio Decidendi and Obiter Dicta )

6) Relevant case law : The following case laws illustrate the significance
of judicial precedents in the Indian Legal System.

1) T Sareetha V/s Venkata subbaiah. Air 1983 A.P.

2) Smt Harvider Kaur V/s Harmander Singh , AIR 1984 Del.66

3) Saroj Rani V/s Sudarshan Kumar , AIR 1984 SC 1562.

Kinds of Precedent

Judicial Precedents are an important source of law. They have enjoyed High authority in all
times and in all countries.

There are four kinds of Precedent it may be classified under the following heads -

1) Authoritative Precedents

a) Absolute Precedents

b) Conditional Precedents

2) Persuasive Precedents

3) Original Precedents

4) Declaratory Precedents

1) Authoritative Precedents
 According to Salmond, an authoritative Precedent is one which Judges must follow
whether they approve it or not. Authoritative Precedents are the legal sources of law.
Authoritative Precedents establish law in pursuance of definite rule of law which confers upon
them that effect. The authoritative Precedents must be followed by the Judges whether they
approve of them or not.

Authoritative Precedents are of two kinds, Absolute and Conditional.

A) Absolute:
In case of absolutely authoritative Precedents, they have to be followed by the Judges
even if they do not approve of them. They are entitled to implicit obedience.

B) Conditional:
In the case of authoritative Precedents having a Conditional authority, the Court can
disregard them under certain circumstances. Ordinarily they are binding but under special
circumstances, they can be disregarded.

2) Persuasive Precedents –

A persuasive Precedent is one which the Judges are under no obligation to follow but
which they will take into consideration and to which they will attach great weight as it seems to
them to deserve. Persuasive Precedents are merely Historical. If Persuasive Precedents succeed
in establishing law at all, they do indirectly by serving as the Historical ground of some later
authoritative Precedent. They do not have any legal force or effect in themselves. The
Persuasive Precedents can merely persuade the Judge but it is up to the judge to follow them or
not.

3) Original Precedents –

According to Salmond , an original Precedent is one which creates and applies a new
rule. In the case of Original Precedent, it is law for the future because it is now applied. The
number of original Precedents is small but their importance us very great, they alone develop
the law of the country. They serve as good evidence of law for the future.

4) Declaratory Precedents -

According to Salmond, a declaratory precedent is one which is merely the application of

an already existing rule of law. In the case of declaratory precedent, the rule is applied because
it is already law. In case of advanced countries, declaratory Precedents are more numerous. A
declaratory precedent is good as a source of law as an original Precedent.

The legal authority of both is exactly the same. An original Precedent is

an authority and source of law but both original and declaratory Precedents have their own
value.

See also... Doctrine of Precedent in India

Difference between Ratio Decidendi and Obiter Dicta

The expression 'Ratio Decidendi' literally means " rule of law

or Ruling or knowing the law". When the highest Court(Apex Court) of
judicature in a country formulate/ makes a rule, while deciding a case basing
on that rule, that case is accepted as a valid Precedent. The apex court
furnishes the various reasons on which the decision was given in that
particular case. Such rule or ruling is called 'ratio decidendi'.

In other words, ratio decidendi is a principal of law made by the judge to

decide the problem. Obiter dicta are observations made by the Judge, which
are not essential for reaching the decision. when a decision is said to have
binding force in subsequent cases, it does not mean to say that the whole
decision is binding. Those statements, in previous decision, which constitute
the ratio decidendi are binding. While obiter dicta has no binding force.

'Ratio Decidendi' means "the reason of the decisions", which

not only binds parties but also forms as law to the future generations. The
Other meanings are 'the rule of law which others regard as being of binding
authority. Obiter dicta, on the other hand means 'dictums' given by the
way, and binding only on the parties, and do not amount to law and hence
not binding on future generations. However, there are exceptions to this rule
that even 'obiter dicta' of the Supreme Court are having binding force as
law.

For the purpose of application of 'Ratio decidendi', the facts of

two cases previous and present, must be identical, material and relevant.
Otherwise, ratio decidendi is not applicable in the subsequent case. It is
called distinguishing the case.

A precedent works by way of analogy: we first look at case law dealing with the question
before and apply the rule laid down in the precedent. But the process is not a
mechanical one, as it may seem. Analogy by precedent involves analysis of the binding
principle of law laid down in the case law and justification for its application to the
circumstances before us. This process is explained in detail below.

Application of the Doctrine in India

The doctrine of precedent is expressly incorporated in India by Article 141 of the
Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court
are binding on all courts within the territory of India. Although there is no express
provision, but by convention the decisions of a High Court are binding on all lower
courts within the territorial jurisdiction of that High Court. Similarly, a decision of a
higher Bench [3] , is binding on the lower Bench.

Ratio or Rationes Decidendi

The maximum attention of jurists while dealing with the doctrine of precedent is
devoted to the enigmatic concept of ratio decidendi. [4] This is because ratio decidendi
is the life of this doctrine. Ratio decidendi is, to borrow the words of Prof. Julius Stone,
“the link” between generations.
Ratio decidendi is generally understood as the reasons spelling out the binding principle
law in a decision. Although the meaning might be quite simple, the most demanding
task is ascertaining the correct ratio decidendi in a case, and maximum space in the
discourse on the doctrine of precedent is devoted to this issue. [5]

Determining the Ratio in a Case

Different approaches have been taken in order to determine the ratio in a case.
Professor Goodhart argued that the binding ratio should be determined on the basis of
“material” facts since the courts considered the law in the context of those facts which
are material. [6] Another common method used is determining the ratio in reference to
the issues dealt with by the previous court. The reasons and the principle declared while
deciding the issues are considered the binding ratio. The justification for this approach is
that debate or arguments and the application of the judicial mind are over resolving the
issues before the court and not merely the facts.

Although there is no universal method of determining the ratio of a case, the

indeterminate nature of the concept holds wide scope for judicial choice. The exercise of
judicial choice, however paradoxically, is restricted by justice and fairness in the exercise
of judicial discretion.

Obiter Dictum
While deciding on the facts of a case observations not relevant to deciding the case may
be made by a judge. These observations, although part of the judgment, may not have a
bearing on the ultimate outcome of the case. Such observations are called obiter dictum
or dicta. Obiter dicta are not considered binding. Nevertheless, resort may be sort to
them if they are relevant to the principle of law being ascertained.

Problems and Paradoxes in the Doctrine of Precedent

If the doctrine of precedent is about following the old way, how then do we answer the
demands of change and new developments?

There are some more aspects of the doctrine of precedent which are mentioned in brief
here.

Per incurium
When a decision is given without considering or in ignorance of the existing principles/
provisions of law, either statutory or case law, it is said to be per incurium. A decision
per incurium does not have any binding force.
Sub-silentio
A decision given without considering a particular aspect of law or issue, or without a
debate or argument on questions relevant to the matter, the decision will be termed as
sub-silentio. Like judgments per incurium a decision passed sub-silentio is not binding.

Distinguishing a case
Cases with identical facts are rarity. Cases with similar facts are not frequent. A principle
of law is held considering the broad circumstance before the court and when such
principles are sought to be applied as precedent it should be ascertained whether the
circumstance are similar. When the facts are materially different from the previous
decision, the precedent can be distinguished, that is to say, a different rule may be
applied in order to suit the circumstances. Distinguishing cases also serves a tool to
evolve law with the change in society. It allows the courts space to decide matter in a
manner to suit the circumstance, without having to overturn the precedent.

Overruling a case
When a higher court is of the opinion that the principle of law enunciated in a decision
is not correct it may overrule that judgment and lay down the correct principle of law. A
judgment can be overruled only by a higher court. Lowers courts do not have such
power. This is very clear from the very nature of the doctrine of precedent.

Conclusion
The doctrine of precedent is not mono-dimensional concept, but a complex
phenomenon. Although this cannot be fully described, a deeper and wider
understanding of the doctrine is possible by analysing and understanding each facet of
it.
Principle Sources of Indian Law – Judicial Decisions
Judicial precedent or decisions is a process which is followed by the judges to take the decision. In
Judicial precedent, the decision is taken by following the similar cases happened in the past. So
judicial decision is based on the principle of stare decisis i.e. “stand by the decision already made”.
Let us explore the types and principles of Judicial Precedent in detail.

Judicial Precedent
There is a term called the doctrine of stare decisis which states that the court’s decision becomes a
precedent to be followed in future cases of a similar nature. The reason why a precedent is
recognized is that the verdict of the judiciary is assumed to be correct. The use of precedents helps
the litigant gain confidence in the judicial system. The administration of the judicial decision
becomes just and fair.

General Principle of Doctrine of Judicial Precedent

There are two rules that apply to the doctrine of judicial precedents:

1. The first rule says that a court which is lower in a hierarchy is completely bound by the decisions
of courts which are above it.
2. The second rule states that higher courts are bound by their own decision in general in matters
of related to precedence.
High Court

 The decisions of the high court are binding on all subordinate courts. In case of a conflict
between two benches of similar authority, the latter decision is to be followed.
 The more the number of judges on a bench, the higher their authority.
 The decision of one high court is not binding on other high courts.
 The Supreme court is the highest authority and its decisions are binding on all other courts.
Article 141 of the constitution says that any law decided by the supreme court shall be binding
on all courts of the country.
Supreme Court

Article 141 states all courts are legally bound to the Supreme Court judicial decisions with the
exception of Supreme Court itself. The Supreme Court is not bound by its own decisions.

However, the Supreme Court recognises that its earlier decisions cannot be deviated from, except
in case of extenuating circumstances. If an earlier decision is found to be incorrect, the Supreme
Court will deviate from it.

Types of Judicial Precedent

1. Declaratory and Original Precedents

As John William Salmon explained, a declaratory precedent is one where there is only application
of an already existing rule in a legal matter.

Whereas, an original precedent is one where a new law is created and applied in a legal matter.
Original precedents are responsible for the creation of new laws.

2. Persuasive Precedents

A persuasive precedent is a type of precedent where the judge is not required to follow the
precedent in a legal matter but will take the precedent heavily into consideration.

So a persuasive precedent is not a direct source of law but is considered a historical source of law.
In India, the decisions of one high court can act as persuasive precedents in other high courts.

3. Absolutely Authoritative Precedents

In an absolutely authoritative precedent, the judges have to compulsorily follow the judicial
decision of the precedent in a case of law.

In other words, even if the judge finds the precedent to be a wrong judgment, he is legally bound to
give the same judicial decision.

For e.g. – Every court in India is absolutely bound by decisions of courts superior to itself because
of hierarchy.

4. Conditionally Authoritative Precedents

A conditionally authoritative precedent is one where generally the precedent is absolutely

authoritative but in certain special circumstances, like a supreme court decision, it can be
disregarded. The court can disregard the decision if it is a wrong decision, or goes against the law
and reason.

Solved Question on Judicial Precedent

A high court made a certain judicial decision regarding a legal matter. Another high court
faces a similar legal matter. What will thus be the effect of the first high court’s precedent on
the second high court’s decision?

Answer: This is in fact, a case of persuasive precedent. A persuasive precedent is a type of

precedent where the judge is not required to follow the precedent but will take the precedent into
consideration. So the decision of the second high court will be heavily influenced by the decision
of the first. But it doesn’t necessarily have to be the same.
The text of Mahabharata says ‘that path is the right path which has been followed by virtuous
men.’ The concept of precedent is based on this theory. The edifice of the common law is made
up of judicial decisions. The doctrine of precedents grew in England in absence of codified laws.
The rule of law requires not over turning precedents too often. Aristotle said “the habit of lightly
changing the laws is an evil”.

In Government of India Act, 1935, the hierarchy of courts was created, with federal court as the
superior court. Section 212 of the Act provided that law declared by the federal court and any
judgment of the Privy Council shall, so far as applicable, be recognised as binding on and shall be
followed by all courts in British India. After independence, Article 141 of the Constitution
provided that law declared by the Supreme Court shall be binding on all courts within the territory
of India.

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

with 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).

Ratio decidendi: consists in the reasons formulated by the court for resolving an issue arising for
determination and not in what may logically appear to flow from observation on nonissues. A case
is an authority, for what it decides, and not for

7
what logically follows from it. [Union of India v. Meghmani Organics Ltd., AIR 2016 SC 4733;
and ITC Ltd. v. CIT (TDS), Delhi, (2016) 6 SCC 652].

The binding effect of decision does not depend upon whether a particular argument was
considered therein or not, provided that the point with reference to which the argument was
subsequently advanced was actually decided. (Vide: Somawanti v. State of Punjab, AIR 1963 SC
151)

Departure

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)

Deprecation The Apex Court deprecated the practice of not following the settled legal proposition
and unsettling the legal issues in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering
Works (P) Ltd., AIR 1997 SC 2477, observing as under:— “When a position, in law, is well
settled as a result of judicial pronouncement of the Court, it would amount to judicial impropriety
to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions
and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial
adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts
in not applying the settled principles and in passing whimsical orders which necessarily has the
effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency
stops.”

Similar view has been reiterated in State of Punjab v. Satnam Kaur, (2005) 13 SCC 617.

While dealing with a similar issue, the Supreme Court in Tribhovandas Purshottamdas Thakkar v.
Ratilal Motilal Patel, AIR 1968 SC 372, observed as under:— “Precedents which enunciate
rules of law form the foundation of administration of justice under our system. It has been held
time and again that a single Judge of a High Court is ordinarily bound to accept as correct
judgments of

10

Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court
and of the Supreme Court. The reason for the rule which makes a precedent binding lies in the
desire to secure uniformity and certainty in the law.”
In Sundarjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, AIR 1990 SC 261, the
Supreme Court held as under:—

“One must remember that pursuit of the law, however glamorous it is, has its own limitation on
the Bench. In a multi judge Court, the Judges are bound by precedents and procedure. They could
use their discretion only when there is no declared principle to be found, no rule and no authority.”

--Reference to Larger Bench

In Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., AIR 2011 SC 312, the Supreme
Court held that the judgment of a larger Bench is binding on a smaller Bench or coequal Bench. If
the court doubts the correctness of the judgment, the only proper course would be to make a
request to the Hon’ble Chief Justice to refer the matter to a larger Bench of appropriate strength. In
case the judgment is given in ignorance of the earlier judgment, doctrine of per incuriam is
attracted. A similar view has been reiterated in Rattiram & Ors. v. State of M.P., (2012) 4 SCC
516; and Sudeep Kumar Bafna v. State of Maharashtra & Anr. AIR 2014 SC 1745.

In Nutan Kumar v. IInd ADJ, AIR 2002 SC 3456, the Supreme Court dealt with a case wherein a
full Bench of the

11

High Court, while considering the case under the provisions of Indian Contract Act, 1872, made an
observation that the authority was “perhaps in conflict with other decisions namely, Waman
Sriniwas Kini v. Ratilal Bhagwandas & Co., AIR 1959 SC 689; Krishna Khanna v. ADM, Kanpur
& Ors., AIR 1975 SC 1525; and Mannalal Khaitan v. Kedar Nath Khaitan, AIR 1977 SC 536. The
Court held that one must ensure whether there was any conflict of decisions and if there is no
conflict, judicial discipline and propriety required with the majority of the full Bench followed the
appointing authority of the Supreme Court.
 In State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275, the court held that every decision contains
three basic postulates: (i) findings of material facts, direct and inferential, (ii) statements of the
principles of law, and (iii) judgement based on the combined effect of the above.

The Supreme Court has consistently held that in case of conflicting judgments of co-equal
benches, it is desirable to refer the matter to a larger Bench. (State of MP v. Mala Banerjee, (2015)
7 SCC 698; Atma Ram v. State of Punjab, AIR 1959 SC 519; Zenith Steel Tubes and Industries
Ltd. v. SICOM Ltd. (2008) 1 SCC 533).

Precedents are not to be read as a statute.

The Courts should not place reliance on the decisions without discussing as to how the situation
fits in with the factual

12

situation. Circumstantial flexibility, one addition or a different fact, makes a difference between
conclusions in two cases. (Union of India v. Amrit Lal Manchanda (2004) 3 SCC 75; and Haryana
Financial Corporation v. Jagdamba Oil Mills (2002)3 SCC 496).

Exceptions to binding precedents

Consent order, obiter dicta, per incuriam, sub silentio (when a particular point of law involved in
the decision is not perceived by the court or present to its mind, that is without argument, without
reference to the rule and without citation of any authority) are the exceptions to this doctrine.

Per incuriam:

“In curia” literally “carelessness”. In practice, per incuriam is taken to mean per ignoratium.
Thus, there are those decisions given in ignorance or forgetfulness of some statutory provisions or
some authority binding on the court concerned. (See: Fibre Boards (Pt.) Ltd. v. CIT, (2015) 10
SCC 333; CCE v. Vijay Vallabh Rolling Mills, (2015) 12 SCC 802; K P Manu v. Scrutiny
Committee for Verification of Community Certificate, AIR 2015 SC 1402; and Jagannath Temple
Managing Committee v. Siddha Math, AIR 2016 SC 564.

Neither factual findings nor directions issued under Article 142 are to be treated as precedents.
(Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72; Ram Prakash Singh v. State of