- By A.K. Awasthi

Additional District Judge,


Stare decisis and Art. 141, Constitutin of India

            The principle of stare decisis is embedded in latin Maxim ‘stare decisis et non quieta movere’, firmly entrenched in British system of doctrine of binding proceedent and embodied in Article 141 of the Consitution of India, in short ‘Constitutin’ if provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. The expressions ‘binding’ and ‘on all courts’ catch our eyes. It is to be discerned as to what is binding and determined whether the Supreme Court is bound by its own decisions.

Meaning of Stare decisis

            ‘Stare decisis’ means ‘to stand by decided cases’. Wh have hierarchy of courts. The Supreme Court is at the top of pyramid. It decides cases with a seal of finality. The decision is an authority for what it actually decides. What is of essence in a decision is it ratio, and not every observation found therein,l nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent1.

Law declared binding

            It is ‘aw declared’ that is binding. The decision not express, nor founded on reasons, nor proceeding on consideration of the issue cannot be deemed as ‘law declared’2.


            It is basal to common law doctrine of binding precedent that there should be a lis for adjudication before the Court, a set of material facts and the Judge has to apply the reasoning to justify decision after putting the facts in a legal pigeon-hold. Indeterminacy of precedent authority must not sway away the mind of a Judge. A case is an authority for what it decides. A decision cannot be relied upon in support of a proposition that it did not decide3.

Res Judicata and Ratio decidendi

            A decision on a matter in issue alone is res judicata; the reason for the decision is not res judicata. It may resolve a controversy inter partes and may also formulate enunciation of law. The former is res judicata, while the latter is the reason for decision i.e., ratio decidendi4.

Ratio decidendi and Obiter dicta

            It is ratio decidendi that is binding, and not casual remarks, something said by the way, statements on hypothetical fact-situations, or problems, which are passed for as obiter dicta. The obiter dicta is the incidental question which may arise, indirectlly connected with the main questions, for consideration. Normally even an obiter dictum of Supreme Court is expected to be obeyed and followed5. The observations on unreal questions decided in personam are not binding as precedent6.

Ratio binds, not rationes

            It is easy to define A ratio decidendi, but difficult to determine it. Obiter is easy to show, and ratio difficult to demonstrate. There may be indeterminacy of decision or wilderness of single instances. There are large prescriptions of case law defying space which can wrap the whole orb several times all over. There is an esoteric quality about the type of reasoning required for unraveling of cases. It is ratio that is binding, not rationes. 

Dismissal in limine

            The dismissal of a case in limine is not res judicate7 nor a assumption or a point not deliberated upon8.

Statute and judgments, if at par

            There is difference between enacted laws and declared laws. One represents vox poppuli, other aequitas. Words of a statute are living flames, tongues of dynamic fire potent to mould the future as well as guide the present9. The Judge takes living facts in his stride and evolves law by use of judicial methos where there is non. Interpretation puts gloss over words in their contextual colour. It puts flesh on dry bones of law and, thus, provides for non liquet fact situation.

Judges interpret statutes, not judgments

            Judgments, even of summit court, are not scriptural absolutes but relative reasoning10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation fits in with the fact situation of the decision  on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and, that too, torn out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

Sub silentio

            The decisions ‘sub silentio’ and ‘per incuriam’ are not binding.

            Sub silentio decisions flow when the particular point of law involved in the decision is not perceived by the court of present to its mind. A point not argued or considered by court is said to pass sub silentio.

Per incuriam

            ‘Inciroa’ literally means ‘carelessness’. In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The “quotable in law”, as held in Young vs. Bristol Aeroplane Co. Ltd.11, is avoided and ignored if it is rendered, “in ignoratium of a statute or other binding authority”. Same has been accepted, approved and adopted by the Apex Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. vs. Synthetics and Chemicals Ltd. (supra). To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience12.

            “A decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.13

Confilicting decisions of the Supreme Court

            The conflicting decisions of the Supreme Court is another grey area. Where there is a conflict between the decisions of two benches of different strength, the decision of larger bench would prevail14. Intransigent disccord between the decisions of the apex court of the country having equal binding force leads to an embarrassing situation. The question arises which of the conflicting decisions should be followed? A Full Bench of Allahabad High Court in Ganga Saran vs. Civil Judge, Hapur15, answered the question thus:

            “………. The courts must follow the judgment which appear to them to state the law accurately and elaborately.”

Circumstances destroying precedent

            There may be circumstances destroying or weakening the binding force of precedent. There can be legislative nullification of judicial decision, as was done by Muslim Women (Protection of Rights on Divorce) Act, 1986 by which the ratio in Mohd. Ahmad Khan vs. Shah Bano Begum16, was abrogated. Affirmation of reversal on different ground or a judgment rendered in ignorance of statute may also render it otiose. Even though per incuriam rule does not apply to apex court decisions, in case of conflict between co-ordinate benches of the Supreme Court, the decision subsequent in time shall prevail.

Finality of decisions

            This adverts us to the finality of a judgment passed by the Supreme Court. In Sajjan Singh vs. State of Rajasthan17, held that the doctrine of stare decisis may not strictly apply and no one can dispute the possition that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by the Apex Court to the detriment of general welfare. Earlier also, the view taken was that the Supreme Court is not bound by its own decisions and may overrule its previous decisions18. The overruling may be either by express exposition or by not following them in a subsequent case19.

Interest reipublicae ut sit finis litium

            A final judgment passed by Supreme Court cannot be assailed in an application under Article 32 of the Constitution of India. The Superior Courts of Justice do not fall within the ambit of State or other authorities under Article 12. However, the Supreme Court to prevent abuse of its process and to cure a gross miscarriage of justice may re-consider its judgments in exercise of its inherent powers. The principle of finality is insisted upon not on the ground that a judgment given by the apex court is impeccable, but on the maxim Interest reipublicae ut sit finis litium, it concerns the State that there be an end of law suit. Article 137 confers the power to review its own judgments. It can re-open the final seal of decisions ex debito justitiae. It is now time that proceedural justice system should give way to the conceptual justice system and efforts of the law courts ought to be so directed20. The curative petitions can be entertained to achieve this purpose.

Theory of logical plenitude of law

            A critic may say that a subordinate Judge is not bound to worship the golden idols of the past if they have feet of clay, but while a Judge may not revere, he is bound to follow such precedents as are binding upon him. Distinguish or follow is the pearl of wisdom. A Judge may not refuse to decide a case on the ground that law is silent or obscure. The theory of logical plenitude of law impels him to invent a rule where there is none. Since the Supreme Court is the Court of last speak, its enunciations of law are binding leaving aside ultra vires enunciations known as obiter21.

Wise to revise

            The twin attributes of a judge are consistency and predicability. Clinging to consistency is no virtue at the costs of denial or sacrilege of justice. Where justice is amiss, it is no folly to be wise to correct, review and revise. To err is human, so do judges. An infallible judge is yet to be born, as is epigrammatically said. It is always better to be right and stand corrected than be consistently and persisteently wrong. Perpetuating an error is no heroism. Who knows this better than a judge, be it of a subordinate  court or summit court.



1 State of Orissa and others vs. Mohd. Hiyas, AIR 2006 DV 258

2 Per Sahai, J., in State of U.P., and another vs. Synthetics and Chemicals Ltd. And another, (1991) 4 SCC 139

3 Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise, Meerut, (1997) 1 SCC 203

4 Mathura Prasad Sarjoo Jaiswal vs. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355

5 As held in Sarwan Singh Lamba and ors. Vs. Union of India and ors., AIR 1955 SC 1729

6 Dadu Dayalu Mahasabha, Jaipur (Trust) vs Mahaant Ram Niwas and another, AIR 2008 SC 2187

7 Supreme Court Employees Welfare Association vs. Union of India and others, AIR 1990 SC 334

8 Arnit Das vs. State of Bihar, AIR 2000 SC 2264

9 State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75

10 Bharat Petroleum Corporation Ltd. And another v. N.R.Vairamani and Another, AIR 2004 SC 4778

11 [(1944 (2) All ER 293

12 Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 and Mayuram Subramanian Srinivasan vs. CBI, (2006)3 SCC (Cri) 83

13 Salmond: Jurisprudence’ P.215(11th edition), quoted in Ambika Prasad Misra vs. State of U.P. (1980 RD 227) by Krishna Iyer, J.

14 Mattulal vs. Radhe Lal, AIR 1974 SC 1956, Union of India and another vs. K.S. Subramanian, AIR 1976 SC 2433, and Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra and others, (1998) 2 SCC 289

15 AIR 1991 All. 114(F.B.)]

16 [(1985)3 SCR 844

17 AIR 1965 SC 845

18 Dwarka Das Shrinivas vs. Sholapur Spg. Wvg. Co. Ltd., AIR 1954 SC 119

19 C.N.Rudramurthy vs. K. Barkathulla Khan, (1998)8 SCC 275

20 Rupa Ashok Hurra vs. Ashok Hurra and another, AIR 2002 SC 1771

21 See also, Saiyada Mossarrat vs. Hindustan Steel Ltd., Bhilai Steel Plant, AIR 1989 SC 406; Municipal Corpn. of Delhi vs. Gurnam Kaur (1989)1 SCC 101 and A.R.Antulay vs. R.S.Nayak, AIR 1988 SC 1531, wherein held that well considered obiter of the apex court are binding