1.law of Precedence
1.law of Precedence
1.law of Precedence
Law of Precedence
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”.
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.
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,
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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).
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In Mamleshwar Prasad v. Kanahaiya Lal, AIR 1975 SC 907, the
Supreme Court held as under:—
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
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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.
Departure
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from its previous decisions if it is convinced of its error and its baneful effect
on the general interest of the public.
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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:—
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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.”
In Nutan Kumar v. IInd ADJ, AIR 2002 SC 3456, the Supreme Court
dealt with a case wherein a full Bench of the 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
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facts, direct and inferential, (ii) statements of the principles of law, and (iii)
judgement based on the combined effect of the above.
Per incuriam:
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(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 Bihar, (2006) 8 SCC 381;
and State of U P v. Neeraj Awasthi, (2006) 1 SCC 667.)
In the aforesaid cases, not only directions were issued but it was
made clear that non observance of any such direction would amount to
disobedience of the order of the court and thus had to be strictly adhered to.
However, in Union of India v. Prakash Hinduja, AIR 2003 SC 2612, the Court
discussed the issue as to whether non-compliance of its order passed under
Article 142 amounted to contempt of court. The Supreme Court observed
that direction issued regarding conferment of statutory status on CVC could
not be treated to be of such a nature, as the court was not competent to
issue such a direction, the non-compliance whereof may amount to
contempt of the order passed by the Supreme Court.
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(a) The Supreme Court in Anugrah Narain Singh v. State of U.P. (1996) 6
SCC 303, cautioned the High Courts of the judicial discipline and
adherence to the rule of precedents, observing that when there is a
difference of views between coordinate Benches of equal strength, the
matter should be referred to a larger bench, instead of passing any
order. (See also: Jaisri Sahu v. Rajdewon Dubey, AIR 1962 SC 83;
Delhi Development Authority v. Ashok Kumar Behal, AIR 2002 SC
2940; and Union of India v. Raghubir Singh, (1989) 2 SCC 754).
(b) Decision of larger Bench will prevail over the decision of a smaller
Bench.
(c) Decisions of a smaller Bench prevails, which deals with and explains
the decision of larger Bench. (Union of India v. Nirala Yadav (2014) 9
SCC 457 ).
(d) If decision of coordinate Benches of equal strength differ, and the later
decision does not notice or consider the earlier decision, then the
Court may choose to follow that decision which is closer to the facts of
the case at hand and deals more directly with the legal issue.
(e) If a court considering a particular provision of law is faced with two
decisions, it will follow the one, which deals with the same or identical
provision rather than the decision which deals with a similar but not
an identical provision, even if the latter is by a larger Bench or a later
judgment.
(f) When a Constitution Bench has decided an issue and subsequent
smaller Benches have not considered it or answered the similar issues
somewhat differently, the later decisions should be construed in terms
of the Constitution Bench decision as the smaller Benches could not
have intended a different view.
[See: Mohan Parasaran: “How to Comprehend Precedents” (2016) 2 SCC 28
(J) ]
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(iii)Ignorance of statute
(iv) Inconsistency with earlier decision of higher court
(v) Inconsistency with earlier decision of same rank
(vi) Precedents sub silentio or not fully argued
(vii) Decisions of equally divided courts
(viii) Erroneous decision
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Where the law has been laid down more elaborately and
accurately.
In Swin Times Limited v. Umrao & Ors., AIR 1981 P&H 213 (FB),
contradiction in two judgments of the Supreme Court in Himalayan Tiles &
Marbles (P) Ltd. v. Francis Victor Coutinho, AIR 1980 SC 1118; and Municipal
Corporation of the City of Ahmedabad v. Chandanlal Shamal Das Patel (1971)
3 SCC 821, on the line of representation of the entity for which the land is
acquired in land acquisition cases for determination of amount of
compensation (It was held positively in 1980 case but repelled in 1971
case).
Vedica Procon Private Ltd. v. Balleshwar Greens Private Ltd. & Ors.,
AIR 2015 SC 3103, the Supreme Court found contradiction in two
judgments of the court of equal strength on the issue of opening of sale in
liquidation proceedings in Navalkha and Sons vs. Ramanuja Das & Ors.
(1969) 3 SCC 537; and Divya Mfg. Co. (P) Ltd. v. Union Bank of India, (2000)
6 SCC 69, observing that in the latter case, the Supreme Court departed
from the principle laid down in 1969 case – unnecessarily, thus 1969 case
followed.
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