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Law of Precedents
(WITH PARTICULAR REFERENCE TO ARTICLE 141 OF THE CONSTITUTION OF INDIA)
—JUSTICE NAGENDRA K. JAIN
What is meant by ‘PRECEDENT’?
According to Salmond ‘Precedent’ is the making of law by the recognition and application of new rules by the Courts themselves in the administration of Justice.
A decision of the Supreme Court is an imperative precedent for intermediate Appellate Court, but only on the point or points decided, and a question which merely lurks in the record, but is not brought to the attention of or ruled on by the Court, is not to be considered as having been so decided as to constitute a ‘Precedent’. Some other definitions of precedent are as follows:
(i) A ‘Precedent’ means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases.
(ii) A decision made after argument on a question of law fairly arising in a case and necessary for its determination, is ‘Precedent’ in subsequent cases where the very point is again in controversy.
(iii) ‘Precedents’ are decisions of courts of last resort upon the substantive issues before the Court, which are considered and decided by the Court as such and immaterial descriptives which do not affect the question considered, or the result reached, have no force as ‘Precedents’.
Thus, it is clear that more is needed to constitute a ‘precedent’ than merely that a principle or doctrine is announced within the appropriate limits of a cause. It is a fundamental law that a precedent must be a conclusion, a decision in a cause, and not a process of reasoning, an illustration or analogy.
So, it can be said that a decision is available as a Precedent only after it decides a question of law. A decision which is not expressed and is not found on reasons nor proceeds on a consideration of the issue cannot be deemed to be a law declared to have binding effect.
Enacted law comes into the courts whereas case laws are developed within the Court themselves. The case law has its source in the precedent. The great body of the common or unwritten law of England is entirely the product of decided cases. Therefore, a judicial precedent speaks in England with authority. It is not merely evidence of the law but a source of law and the courts are bound to follow the law that is so established. It is often said: precedent units in the same hands the business of making the law and that of enforcing it.
PRECEDENT—
How different from legislation:
A precedent is often considered as most formidable rival to legislation. Legislation is undoubtedly the main instrument of legal growth. Legislation is not merely a source of new law, but is equally effective in abolishing that which already exists, whereas in the case of precedent, in a strict system of binding precedent, its operation is irreversible. In other words what it does, it does once for all. And it cannot go back upon its footsteps. Secondly legislation allows division of labour in the sense that it is the duty of the legislature to make law and that of the judicature to interpret and apply the law. In the case of precedent, the making of law and that of enforcing it falls into the same hands. Thirdly the advantage of statute law is that it is formally declared before it operates or enforces. But in the case of case law, it is created and declared in the very act of applying and enforcing it and case law operates retrospectively. In the case of legislation it is always possible to make anticipation and make laws for cases which have not yet arisen. But in the case of precedent it is dependent or accidental course of litigation. In other words a precedent must wait until the actual concrete instance comes before the courts for decision. Lastly statute law assumes the form of abstract propositions, and is general, brief, clear, easily accessible, whereas a case law is buried from sight and knowledge in the huge and daily growing mass of the records and the precedent is merged in the concrete details of the actual cases to which it owes its origin. Salmond puts this in more picturesque words thus: ‘Case law is gold in the mine—a few grains of the precious metal got the ton of useless matter—while statute law is coin of the realm ready for immediate use’.
KINDS OF PRECEDENTS
There are two kinds of precedents. Judicial decisions can be distinguished as authoritative and persuasive. An authoritative precedent is one which judges must follow whether they approve of it or not. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. Authoritative precedents are legal source of law, while persuasive precedents have mere historical value.
Authoritative Precedent
The decisions of the Superior Courts of Justice in England are authoritative precedents recognized by English Law. In our country, Article 141 of the Constitution says that the law declared by the Supreme Court shall be binding on all courts within the territory of India. By this, it is made clear that all courts in India are bound to follow the decisions of the Supreme Court even though the said decisions are contrary to decisions of the House of Lords or of the Privy Council. Privy Council decisions are binding on the High Court so long as the Supreme Court does not overrule them. [PANDURANG KALU Vs. STATE OF MAHARASHTRA (AIR 2003 SC 733)]. The Supreme Court under Article 141 of the Constitution is enjoined to declare law. The law declared by the Supreme Court is the law of the land. It has been held in the case reported in BENGAL IRON CORPORATION Vs. COMMERCIAL TAX OFFICER [1994 (1) Supp. SCC 310] that no doubt a statute is binding, but it is the satute as interpreted by the highest court which is binding on all other courts.
ARTICLE 141 OF THE CONSTITUTION
The law enunciated by the Supreme Court is binding and absolute. Its correctness cannot be doubted on the grounds, inter alia, of (a) there being another view which was not considered, or (b) was never urged and considered; or (c) the Supreme Court’s view being now in tune with ‘the mores of the day’ or change of events requiring a change in outlook of the law. Article 141 is the heart and soul of the Constitution. The decision given by the Supreme Court in its Advisory jurisdiction also is binding on all the Courts in India under Article 141.
If the majority of Judges of the Supreme Court in a particular case express a view on a proportion of law, then that view of the majority of the judges would be the law declared by the Supreme Court and binding on all courts. [See M/s New Krishna Bhavan Vs. Commercial Tax Officer (AIR 1961 MYS.3)].
RATIO DECIDENDI
The Supreme Court has held in Dalbir Singh Vs. State of Punjab (AIR 1979 SC 1384) that every decision has three basic ingredients. 1) the findings of material facts direct and inferential; 2) the principles of law applicable to the legal problems disclosed by the facts, and 3) the judgment based on the combined effect of 1 and 2. For the doctrine of precedents, ingredient 2 is the vital element. It indeed in the Ratio Decidendi. A decision on a question of sentence depending on facts of a particular case can never be regarded as a binding precedent much less ‘law declared’.
Only the Ratio of a decision has binding force. Ratio means the principle found out on reading of judgment in the light of the question before the Court. Law declared by the Supreme Court cannot be availed on ground that certain aspects were not considered on relevant provision were not brought to the notice of the Court. Question of constitutionality of A.P. Act as amended in 1971 raised before the Supreme Court. Counsel for the respondent made a concession before the Court. The Supreme Court after recording concession however made an observation that “we are also of view that amendments are valid”. Decision is a conscious decision and not one on concession. It is binding under Article 141 [Vide Director of Settlements, A.P. Vs. M.R. Apparao (AIR 2002 SC 1598)].
Cont....
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