Sources of Law: Precedent III - Kailasha Online Learning LLP

The position of Precedent in India:

Before Independence:

India has followed the doctrine of precedent since inception. The earliest of texts suggest that there was a practice of precedents when so required. Manu, the foremost law-giver in India favored the theory of precedent to settle the disputed and doubtful points of law. “If it be asked how it should be with respect to (points of) law the law which has not been (especially) mentioned, (the answer is), that which Brahmans (who are) Sishtas propound shall doubtlessly have legal (force), Manu said.

In Mahabharat, it has also been suggested that “that path is the right one which has been followed by a virtuous man, since the texts might conflict with each other and purport of law is difficult to arrive at.” [i]However, it must be noted here that the modern meaning of the term ‘precedent’ was not accepted in ancient India as a decision originated from a court.

The medieval period brought no improvement to the theory. The Muslim rulers established various courts but there was no organized system for the judiciary. The present Indian system was developed by the British. The development can be traced down by going through the various legislation passed by them for the smooth functioning of the judiciary. There were Presidency Courts for presidency towns and Mofussil Courts in districts subjected to High Court. The Privy Council was the highest appellate tribunal. The decision of the superior court was made binding upon the lower courts. However, the Privy Council was not bound by its own decision. By the Act of 1935, a Federal Court was established in India and the Act provided that the decisions of the superior courts will have the binding effect on the courts below.

After Independence:

The Privy Council ceased to be the appellate court of India and Federal Court was abolished. The Constitution of India established a Supreme Court as the final appellate tribunal. High courts in each state and under them, civil and criminal courts in districts were established. The hierarchy of the courts is as follows:

In Supreme Courts:

Article 141 of the Constitution of India says that ‘the law declared by the Supreme Court shall be binding on all courts within the territory of India.’ Here the term ‘all courts’ came into controversy as there was some confusion whether the Supreme Court is bound by its own decision or not. In Dwarkadas v. Sholapur Spinning and Weaving Co.[ii], Chief Justice Das expressed his view, “Accepting that the Supreme Court is not bound by its own decisions and may reverse a previous decision especially on constitutional questions the Court will surely be slow to do so unless such previous decision appears to be obviously erroneous.”

In Bengal Immunity Co. v. State of Bihar[iii], the Supreme Court observed, “There is nothing in Indian Constitution which prevents the Supreme Court from departing from its previous decision if it is convinced of its error and its baneful effect on the general interest of the public.”

Thus, the Supreme Court is not bound by its own decisions, except to the extent that a smaller Bench is bound by the decision of a larger Bench and that of a co-equal Bench. The Supreme Court is not bound by the decisions of the Privy Council or the Federal Court[iv], they are more of persuasive nature having great value and the Supreme Court may overrule them if necessary. The position of precedent in the Supreme Court may be summed up as follows:

“The law declared by the Supreme Court under Article 141 shall be binding on all courts. The term ‘all courts’ does not include the Supreme Court itself. The trend is that the overrules those cases which cause hardship or have been decided erroneously, the Supreme Court does not listen to the decisions where their effects are baneful.”

In High Courts:

By virtue of Article 141, High Courts in India are bound by the law declared by the Supreme Court.[v] The decision of a High Court is not binding on other High Courts as they are courts of co-ordinate jurisdiction. The decision of a High Court, therefore, holds a persuasive value for other High Courts. All the District Courts, Magistrate Courts and Munsif Courts are bound by the decisions of Supreme Court and High Courts (within its jurisdiction). Likewise, Musnif’s Court and Magistrate’s Court are bound by the decisions of District Court (within its Jurisdiction). The question as to which extent a High Court is bound by its own decision has been controversial. The general rule is that the decisions of a larger Bench are binding on a smaller Bench or co-ordinate Bench.[vi]

“A single judge constitutes the smallest Bench. A bench of two judges is called a Division Bench. Three or more judges constitute a Full-Bench.

The statement made by Justice Krishna Iyer in K.C. Dora v. G. Annamanaidu, AIR 1974, SC 1069, sums up the practice of the doctrine of precedent in Indian Courts:

“Precedent should not be petrified nor judicial dicta divorced from the socio-economic mores of the age. Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific.

My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judge whose rulings are cited, nor be obsessed by respect at the expense of reason.”

To be continued…

[i] The Mahabharat, Vanaparva Ch. 313, Verse 117.

[ii] AIR 1954 SC 119

[iii] AIR 1955 SC 661

[iv] Delhi Judicial Services Association, Tis Hazari Court v. State of Gujrat, AIR 1991 SC 2176

[v] Behram Khurshid Resikak v. State of Bombay, AIR 1955 SC 123

[vi] V.R.G. & G.O.M.C. Co. v. State if A.P., AIR 1972 SC 51

Books referred:

Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
Singh, Dr Avtar and Kaur, Dr Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.