"A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent." – Brett Kavanaugh, Associate Justice of Supreme Court of India.
Every developed legal system possesses a judicial organ which adjudicates the rights and obligations of the citizens of the nation. At earlier stage, the courts were guided by customs and their own sense of justice. With the advent of society, the legislation becomes the main source of law and judges decide cases according to it. Even at this stage, the judges perform some creative functions. The judges to some extent depend on their sense of right and wrong in matters of interpretation or in filling up any lacuna in the law made by the legislation. In simple terms, a judicial precedent is a judgment of a court of law in India which is cited as an authority to decide a similar set of facts and which can be used by the courts as a source for future decision making.
According to Gray, "Precedent covers everything said or done, which furnishes a rule for subsequent practice." According to Salmond, "In a loose sense, it includes merely reported case law which may be cited and followed by courts." In general judicial sense, it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents.
Historical aspects of the judicial precedents in India:
In the ancient society, there was less disputes and there were very few occasions to go to courts. Local courts like shashan, kula, shreni and puga were existing at that time. They decided the cases falling within their jurisdictions. There was little possibility of development of doctrine of precedent due to lack of adequate sources to keep the record. In the medieval times also there was less scope of precedents. In the absence of a well organized judicial system, no doctrine of precedent developed in India as it developed in England. In the British rule, the present theory of precedent started developing. The Government of India Act, 1935, explicitly mentioned that the decision of Federal Courts and Privy Council will be binding on all the other courts decision in British India. Hence, from 18th century till date precedent is a characteristic feature of our legal system.
Position under Indian Constitution:
Article 141 of the Indian Constitution provides that, "The law declared by the Supreme Court shall be binding on all courts within the territory of India." In Article 141 the expression "all courts" has been used which creates question that whether Supreme Court comes under the sphere of all courts. That is to say whether Supreme Court is bound by its own decisions or not. The most important instance of the rule that Supreme Court is not bound by its own decisions is furnished by the case of Kesavananda Bharti Vs State of Kerala. In a number of other cases Supreme Court has cleared the mind on this point.
Judgments which do not have binding effect under Article 141 of the Indian Constitution:
Judgments which include the following are not considered as a precedent:
- The judgment that is not expressed.
- The judgment not founded on reasons.
- An Obiter Dicta of a case is not binding as it has a persuasive value.
- Judgments made on Per Incuriam cannot be used as precedent. Literal meaning of per incuriam is resulting from ignorance.
- Judgments where point of law or particular question of law was not consciously determined are also not binding.
- Court's observations on the facts of the case are not binding.
General Principles of Precedents:
The High Courts in India are bound by the law declared by the Supreme Court. Decisions of the Supreme Court are binding only so long as they have not been overruled by the Supreme Court. The decisions of a High Court are binding on all the courts below it within its jurisdiction. The judgment of a particular High Court, is not binding on other High Courts. The High Courts are the courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is only of persuasive value for other High Courts. In High Courts generally appeals are heard by a Single Judge, some appeals such as murder, specials appeals etc. are heard by two judges. Different High Courts have their different rules in this respect. When an appeal involves some important and complicated point of law, it is referred to a Larger Bench. A Bench of two judges is called the Division Bench. Three or more judges constitute a Full Bench. The decisions of a larger bench are binding on a smaller bench. A bench is not bound by the decisions of another bench of equal authority.
Supreme Court on Judicial Precedents:
In Union of India Vs. Raghubir Singh (AIR 1989 SC 1933) it has been held that, "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 daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court." In the case of Commissioner of Income Tax Vs. M/s Sun Engineering Works Private Limited (AIR 1993, SC 43), the Hon'ble Apex Court held that, "While applying the decision to a latter cases, the court must carefully try to ascertain the true principle laid down by the decision of Supreme Court and not to pick out words or sentences from the judgments divorced from the context of question under consideration by the court to support their reasoning." Any interim order passed even by Supreme Court is limited to that particular case and should not to be used as precedent for others cases specifically when the Supreme Court itself has earlier authoritatively decided the question which is squarely involved in the latter case. The Hon'ble Apex Court in Megh Singh Vs. State of Punjab ( AIR 2003 SC 3184) has held that, "Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect." In Suganthi Suresh Kumar Vs. Jagdeeshan (2002)2 SCC 420 Supreme Court observed that, "It is impermissible for a High Court to over rule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point. High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court."
Merits of Judicial Precedents:
Consistency and predictability:
Because of the presence of judicial precedents, the lawyers become able to assist their clients regarding specific subject matter after observing the precedents prevalent in such field. It provides guarantee that every case will be treated and decided in a manner that is similar to pass decisions. There is an element of consistency and predictability that everyone can rely upon it.
Precedents bring flexibility in the legal system. The Supreme Court of India is not bound by its own decisions. The rules settled by the Supreme Court in a particular subject matter remain in force unless they have not been overruled by the Supreme Court. This system creates a series of checks and balances in the judiciary. Judges may not write the laws, but it is their job to interpret the law as accurately as possible in every situation. They mold the law according to the changed conditions and thus bring flexibility to the law.
Save time of the courts:
Judicial precedents provide great convenience as it reduces the labor of judges and lawyers. Once the question regarding some specific matter is resolved then it is not required to re-argue the same question in the future similar cases. That means judges can spend less time in deliberation because they already have access to the decision making processes of others. This advantage can even reduce the crime rate to some extent as it throws light on the consequences for the wrong committed against the state.
Precedents guide judges and consequently, they are prevented from committing errors which they would have committed in the absence of precedents. There is lesser chance of mistakes when everyone stays on the same page. By deciding cases on established principles, the confidence of the people on the judiciary is strengthened.
Demerits of precedents:
There are so many case laws thus it creates complexity. Every judge issues his own perspective on matter to create more precedents. Judgments are exceptionally long, and it becomes burden for the lawyers and judges working on the similar matter to determine that what is applicable or not. It becomes tedious task to find out relevant case law on particular matter.
Possibility of overlooking of authorities:
The vastly increasing number of cases has an overwhelming effect on the judges and the lawyers, thus there is possibility of overlooking of authorities. It becomes difficult to trace out the wide range of authorities on the very point. Sometimes, the conflicting decisions of superior courts put the judges of lower courts into a dilemma.
The practice of precedents brings rigidity in the system because the lower courts are bound by decisions of higher courts. The society is not static and there are changes in social, economic, and other circumstances with time. Changed circumstances may require a different interpretation of law. In fact binding precedents can hinder the development of law.
While statutes and enactments of the legislature lay down the general rules to be applied in the adjudication of disputes, the final authority for interpretation of those rules are the courts. The doctrine of precedents makes the decisions of courts, usually binding on the subordinate courts in cases in which similar or identical question of law raised before the court. The great value of the doctrine of precedents is that it provides certainty. On the other hand major disadvantage is that precedents are considered to be binding in nature; it may be hinder the development of law which is necessary with changes in society. The court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law.
December 27, 2019
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