- By A.K.
Additional District Judge,
Stare decisis and
Art. 141, Constitutin of India
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’ 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
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
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 decide.
Res Judicata and
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 decidendi.
Ratio decidendi and
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 followed.
The observations on unreal questions decided in personam are not
binding as precedent.
Ratio binds, not
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 judicate
nor a assumption or a point not deliberated upon.
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
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
statutes, not judgments
Judgments, even of summit court,
are not scriptural absolutes but relative reasoning.
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.
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.
‘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.,
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 conscience.
“A decision does not lose its
authority merely because it was badly argued, inadequately
considered and fallaciously reasoned.”
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 prevail.
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, Hapur,
answered the question thus:
“………. The courts must follow the
judgment which appear to them to state the law accurately and
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 Begum,
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
This adverts us to the finality
of a judgment passed by the Supreme Court. In Sajjan Singh vs.
State of Rajasthan,
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
The overruling may be either by express exposition or by not
following them in a subsequent case.
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
The curative petitions can be entertained to achieve this
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 obiter.
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.