INTRODUCTION
Article 141.
Law declared by Supreme Court to be binding on all courts: The law
declared by the Supreme Court shall be binding on all courts within the
territory of India.
In a Constitution
Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC
754, Chief Justice Pathak observed as under
: "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 of his daily affairs. And, therefore,
the need for a clear and consistent enunciation of legal principle in the
decisions of a Court."
1.
Broadly
speaking, every judgment of superior courts has three segments, namely, (i) the
facts and the point at issue; (ii) the reasons for the decision; and (iii) the
final order containing the decision. It is the ratio decidendi [reasons for the
decision] of a judgment and not the final order in the judgment, which forms a
precedent.
2.
What
is binding is the ratio of the decision and not any finding of facts. It is the
principle found out upon a reading of a judgment as a whole, in the light of
the questions before the Court that forms the ratio and not any particular word
or sentence... A judgment of the Court has to be read in the context of
questions which arose for consideration in the case in which the judgment was
delivered.
3. It is not everything said by a judge while giving judgment, constitutes a
precedent. The enunciation of the reason or principle on which a question
before the court has been decided, is alone binding as a precedent.
4. A judgment should be understood in the light of the facts of that case,
and no more should be read into it than what it actually says.
5.
Every
judgment to qualify to be a precedent should invariably answer an issue of law;
and a decision is available as a
precedent only if it decides a question of law.
6. The only thing binding as an authority upon a subsequent judge is the
principle upon which the case was decided.
7. It is well
settled that a decision of the Apex Court based on specific facts does not
operate as a precedent for future cases. Only the principles of law that
emanate from a judgment of the Court, which have aided in reaching a conclusion
of the problem, are binding precedents within the meaning of Article 141.
8.
The
expression “declared” in Article 141 of the Constitution is wider than the
words “found or made”. To declare is to announce opinion. Interpretation,
ascertainment and evolution are parts of the process, while that interpreted,
ascertained or evolved is declared as law.
AIR 2004 SC 2890
Para 13: That being so, the Judgment in Harjeet
Singh's case (supra) does not in any assist the appellant. There is no such
thing as a judicial precedent on facts though counsel, and even Judges, are
sometimes prone to argue and to act as if they were, said Bose J. about half
century back in Willie (William) Slaney V/s. The State of Madhya Pradesh,
(1955(2) SCR 1140 at page 1169).
A decision is
available as a precedent only if decides a question of law. A Judgement should
be understood in the light of facts of that case and no more should be read
into it than what it actually says. It is neither desirable nor permissible to
pick out a word or a sentence from the Judgement of this Court divorced from
the context of the question under consideration and treat it to be complete law
decided by this Court. The Judgement must be read as a whole and the
observations from the Judgement have to be considered in the light of the
questions which were before this Court.
How the Law is declared or
laid down
AIR 1992 SC 1593
Para 6: A decision is
available as a precedent only if it decides a question of law.
[(2012) 3 SCC
387]
Para 28: Now, the interpretation of a legal
provision and its application to a set of facts are two different exercises
requiring different approaches.
28.1: "Interpretation" means the
action of explaining the meaning of something. For interpreting a statutory
provision, the court is required to have an insight into the provision and
unfold its meaning by means of the well-established canons of interpretation, having
regard to the object, purpose, historicism of the law and several other
well-known factors. But, what is important to bear in mind is that the
interpretation of a legal provision is always independent of the facts of any
given case.
28.2: "Application" means the
practical use or relevance (of something to something); the application of a
statutory provision, therefore, is by definition case related and as opposed to
interpretation, the application or non-application of a statutory provision would
always depend on the exact facts of a given case. Anyone associated with the
process of adjudication fully knows that even the slightest difference in the
facts of two cases can make a world of difference on the question whether or
not a statutory provision can be fairly and reasonably applied to it.
AIR 1991 SC 101
(Constitution Bench of Five Judges)
The expression
“declared” is wider than the words “found or made”. To declare is to announce
opinion. Indeed the latter involves the process, while the former expresses the
result. Interpretation, ascertainment and evolution are parts of the process,
while that interpreted, ascertained or evolved is declared as law.
(2003) 6 SCC 697
[Constitution Bench of Five Judges]
Para 2: The ratio decidendi of a judgment has
to be found out only on reading the entire judgment. In fact, the ratio of the
Judgement is what is set out in the Judgement itself. The answer to the
question would necessarily have to be read in the context of what is set out in
the Judgement and not in isolation. In case of any doubt as regards any
observations, reasons and principles, the other part of the Judgement has to be
looked into. By reading a line here and there from the judgment, one cannot
find out the entire ratio decidendi of the judgment.
Para 139: A judgment, it is trite, is not to be
read as a statute. The ratio decidendi of a Judgement is its reasoning which
can be deciphered only upon reading the same in its entirety. The ratio
decidendi of a case or the principles and reasons on which it is based is
distinct from the relief finally granted or the manner adopted for its
disposal. [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa
and Others V/s. N.C. Budharaj (Deceased) By LRs. And Others]
Para 143: It will not,
therefore, be correct to contend, as has been contended by Mr. Nariman, that
answers to the questions would be the ratio to a judgment. The answers to the
questions are merely conclusions. They have to be interpreted, in a case of
doubt or dispute with the reasons assigned in support thereof in the body of
the judgment, wherefore, it would be essential to read the other paragraphs of
the Judgement also. It is also permissible for this purpose (albeit only in
certain cases and if there exist strong and cogent reasons) to look to the
pleadings of the parties.
2007 (3) SCC 720
(Three Judges Bench)
Para 10: Broadly
speaking, every judgment of superior courts has three segments, namely, (i) the
facts and the point at issue; (ii) the reasons for the decision; and (iii) the
final order containing the decision. It is the ratio decidendi of a judgment
and not the final order in the judgment, which forms a precedent.
2011 (12) SCC
615 (Two judges Bench)
18 In the case of
Director of Settlements, A.P. V/s. M.R. Apparao, (2002) 4 SCC 638, this Court
held:
"7.
So far as the first question is concerned, Article 141 of the Constitution
unequivocally indicates that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. The aforesaid Article
empowers the Supreme Court to declare the law. It is, therefore, an essential
function of the Court to interpret a legislation. The statements of the Court
on matters other than law like facts may have no binding force as the facts of
two cases may not be similar. But what is binding is the ratio of the decision
and not any finding of facts. It is the principle found out upon a reading of a
judgment as a whole, in the light of the questions before the Court that forms
the ratio and not any particular word or sentence... A judgment of the Court
has to be read in the context of questions which arose for consideration in the
case in which the judgment was delivered. ... The law which will be binding
under Article 141 would, therefore, extend to all observations of points raised
and decided by the Court in a given case..."
20 It is now well
settled that a decision of this Court based on specific facts does not operate
as a precedent for future cases. Only the principles of law that emanate from a
judgment of this Court, which have aided in reaching a conclusion of the
problem, are binding precedents within the meaning of Article 141. However, if
the question of law before the Court is same as in the previous case, the
judgment of the Court in the former is binding in the latter, for the reason
that the question of law before the Court is already settled. In other words,
if the Court determines a certain issue for a certain set of facts, then, that
issue stands determined for any other matter on the same set of facts.
[(1990) 3 SCR
352]
It was observed
that the enunciation of the reason or principle upon which a question before a
Court has been decided is alone binding as a precedent, and the ratio decidendi
is the underlying principle, namely, the general reasons or the general grounds
upon which the decision is based on the test or abstract the specific
pecularities of the particular case which gives rise to the decision.
Precedents
– Judgments delivered by Single Bench – Division Bench – Constitution Bench etc
Siddharam
Satlingappa Mhetre Versus State of Maharashtra and Others (2011) 1 SCC 694 –The judgment of a larger strength is binding not only on a judgment
of smaller strength but the judgment of a co-equal strength is also binding on
a Bench of Judges of co-equal strength.
A three-Judge Bench
of this Court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article
141 of the Constitution, the judgment of the Constitution Bench in State of
Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all
Courts including this Court till the same is overruled by a larger Bench.
Para 60 …. Likewise, there have been instances in which smaller
Benches of this Court have either ignored or bypassed the ratio of the
judgments of the larger Benches including the Constitution Benches. These cases
are illustrative of non-adherence to the rule of judicial discipline which is
sine qua non for sustaining the system.
Para 65. ……….The learned Attorney-General submitted that a
Constitution Bench judgment of this Court was binding on smaller Benches and a
judgment of three learned Judges was binding on Benches of two learned Judges
-- a proposition that learned counsel for the appellants did not dispute.
…..In our view, judicial discipline and propriety demands that a Bench
of two learned Judges should follow a decision of a Bench of three learned
Judges.
Para 66 ……"the law laid down in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of lesser or
co-equal strength and it would be inappropriate if a Division Bench of two
Judges starts overruling the decisions of Division Benches of three Judges. The
Court further held that such a practice would be detrimental not only to the
rule of discipline and the doctrine of binding precedents but it will also lead
to inconsistency in decisions on the point of law; consistency and certainty in
the development of law and its contemporary status - both would be immediate
casualty"
In the case of P. Ramachandra Rao Versus, State of Karnataka, a 7 Judges
Bench of the Apex court, in respect of doctrine of precedents, observed to say
that –
The well settled principle of precedents which has crystallized into a
rule of law is that a bench of lesser strength is bound by the view expressed
by a bench of larger strength and cannot take a view in departure or in
conflict therefrom. (Para 29)
AIR 2011 SC 421
In Central Board
of Dawoodi Bohra Community and Anr.V/s. State of Maharashtra and Anr. [(2005) 2
SCC 673], (para 12), a Constitution Bench of this Court summed up the legal
position in the following terms :
"(1) The
law laid down by this Court in a decision delivered by a Bench of larger
strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of
lesser quorum cannot disagree or dissent from the view of the law taken by a
Bench of larger quorum. In case of doubt all that the Bench of lesser quorum
can do is to invite the attention of the Chief Justice and request for the
matter being placed for hearing before a Bench of larger quorum than the Bench
whose decision has come up for consideration. It will be open only for a Bench
of co-equal strength to express an opinion doubting the correctness of the view
taken by the earlier Bench of co-equal strength, whereupon the matter may be
placed for hearing before a Bench consisting of a quorum larger than the one
which pronounced the decision laying down the law the correctness of which is
doubted.
(3) The above
rules are subject to two exceptions : (i) The abovesaid rules do not bind the
discretion of the Chief Justice in whom vests the power of framing the roster
and who can direct any particular matter to be placed for hearing before any
particular Bench of any strength; and
(ii) In spite of
the rules laid down hereinabove, if the matter has already come up for hearing
before a Bench of larger quorum and that Bench itself feels that the view of
the law taken by a Bench of lesser quorum, which view is in doubt, needs
correction or reconsideration then by way of exception (and not as a rule) and
for reasons given by it, it may proceed to hear the case and examine the correctness
of the previous decision in question dispensing with the need of a specific
reference or the order of Chief Justice constituting the Bench and such
listing."
The above
principles and norms stated with reference to the Supreme Court are equally
relevant and applicable to the High Court also.
Doctrine of Precedents vis a
vis to doctrine of Stare decisis
[AIR
2001 SC 8]
32 On the other
count Mr. Chidambaram's submission pertaining to delegated legislation in
taxing statute however, does not call for any detail discussion since the
authority of the legislature in introducing the Act of 1957 cannot be doubted
in any way and in any event is a settled proposition of law for more than a
decade and it is on this score that the doctrine of stare decisis has its due
application in the contextual facts and in this context the decision of this
Court in Mishri Lal's case, (Mishri Lal (d) by L.Rs. V/s. Dhirendra Nath (d) by
L.Rs., (1999) 4 SCC 11 : (1999 AIR(SCW) 2350 : AIR 1999 SC 2286) seem to be
rather apposite. This Court observed :
11. It is
further to be noted that Meharban Singh's case, (AIR 1971 SC 77) came to be
decided as early as 1970 and has been followed for last three decades in the
State of Madhya Pradesh and innumerable number of matters have been dealt with
on the basis thereof and in the event, a different view is expressed today, so
far as this specific legislation is concerned, it would unsettle the situation
in the State of Madhya Pradesh and it is on this score also that reliance on
the doctrine of 'stare decisis' may be apposite. While it is true that the
doctrine has no statutory sanction and the same is based on a Rule of
convenience and expediency and as also on 'Public Policy' but in our view, the
doctrine should and ought always to be strictly adhered to by the Courts of law
to sub-serve the ends of justice.
12. This Court
in Maktul V/s. Mst. Manbhari, 1959 SCR 1099 , explained the scope of the
doctrine of stare decisis with reference to Halsbury's Laws of England and
Corpus Juris Secundum in the manner following :-
"The
principles of 'Stare Decisis' is thus stated in Halsbury's Laws of England :
"Apart from
any question as to the Courts being of co-ordinate jurisdiction, a decision
which has been followed for a long period of time, and has been acted upon by
persons in the formation of contracts or in the disposition of their property,
or in the general conduct of affairs, or in legal procedure or in other ways,
will generally be followed by Courts of higher authority than the Court
establishing the rule, even though the Court before whom the matter arises
afterwards might not have given the same decision had the question come before
it originally. But the supreme appellate Court will not shrink from overruling
a decision, or series of decisions, which establish a doctrine plainly outside
the statute and outside the common law, when no title and no contract will be
shaken, no persons can complain, and no general course of dealing be altered by
the remedy of a mistake".
The same
doctrine is thus explained in Corpus Juris Secundum :-
"Under the
stare decisis rule, a principle of law which has become settled by a series of
decisions generally is binding on the Courts and should be followed in similar
cases. This rule is based on expediency and public policy, and, although
generally it should be strictly adhered to by the Courts, it is not universally
applicable."
13. Be it noted
however that Corpus Juris Secundum, adds a rider that "previous decisions
should not be followed to the extent that grievous wrong may result; and,
accordingly, the Courts ordinarily will not adhere to a rule or principle
established by previous decisions which they are convinced is erroneous. The
rule of stare decisis is not so imperative or inflexible as to preclude a
departure therefrom in any case, but its application must be determined in each
case by the discretion of the Court, and previous decisions should not be
followed to the extent that error may be perpetuated and grievous wrong may
result.
14. The
statement though deserves serious consideration in the event of a definite
finding as to the perpetration of a grave wrong but that by itself does not
denude the time tested doctrine of Stare Decisis its efficacy".
33 The two English
decisions (Admiralty Commrs. V/s. Valverda Owners, (1938) AC 173 at 194 and
Button V/s. Director of Public Prosecution, Swain V/s. Director of Public
Prosecutions, (1966) AC 591 also sound a similar note.
34 Recently
Paripoornan, J. in Kattite Valappil Pathumma V/s. Taluk Land Board, (1997) 4
SCC 114 : (1997 AIR(SCW) 1142 : AIR 1997 SC 1115) in paragraph 18 observed :
"We are
further of the view, that even if another view is possible, we are not inclined
to take a different view at this distance of time. Interpretation of the law is
not a mere mental exercise. Things which have been adjudged long ago should be
allowed to rest in peace. A decision rendered long ago can be overruled only if
this Court comes to the conclusion that it is manifestly wrong or unfair and not
merely on the ground that another interpretation is possible and the Court may
arrive at a different conclusion. We should remember that the law laid down by
the High Court in the above decision has not been doubted so far. The Act in
question is a State enactment. These are weighty considerations to hold that
even if a different view is possible, if it will have the effect of upsetting
or reopening past and closed transactions or unsettling titles all over the
State, this Court should be loathe to take a different view. On this ground as
well, we are not inclined to interfere with the Judgement under appeal."
35 On the wake of
the aforesaid, we do feel it expedient to record that taking recourse to the
doctrine as above would be an imperative necessity, so to avoid uncertainty and
confusion, since the basic feature of law is its certainty and in the event of
any departure therefrom the society would be in utter confusion and the
resultant effect of which would be legal anarchy and judicial indiscipline - a situation
which always ought to be avoided. The central legislature introduced the
legislation (MMRD Act) in the year 1957 and several hundreds and thousands of
cases have already been dealt with on the basis thereof and the effect of a
declaration of a contra law would be totally disastrous affecting the very
basics of the revenue jurisprudence. It is true that the doctrine has no
statutory sanction but it is a rule of convenience, expediency; prudence and
above all the public policy. It is to be observed in its observance rather than
in its breach to serve the people and subserve the ends of justice.
2011 (2) SCC 132
9 It is a settled
principle of law that a judgment, which has held the field for a long time,
should not be unsettled. The doctrine of stare decisis is expressed in the
maxim "stare decisis et non quietamovere", which means "to stand
by decisions and not to disturb what is settled." Lord Coke aptly
described this in his classic English version as "those things which have
been so often adjudged ought to rest in peace." The underlying logic of
this doctrine is to maintain consistency and avoid uncertainty. The guiding
philosophy is that a view which has held the field for a long time should not
be disturbed only because another view is possible. This has been aptly pointed
out by Chandrachud, C.J. in WamanRao V/s. Union of India, (1981) 2 SCC 362 at
pg. 392 thus:
"40.
... for the application of the rule of stare decisis, it is not necessary that
the earlier decision or decisions of longstanding should have considered and
either accepted or rejected the particular argument which is advanced in the
case on hand. Were it so, the previous decisions could more easily be treated
as binding by applying the law of precedent and it will be unnecessary to take
resort to the principle of stare decisis. It is, therefore, sufficient for
invoking the rule of stare decisis that a certain decision was arrived at on a
question which arose or was argued, no matter on what reason the decision rests
or what is the basis of the decision. In other words, for the purpose of
applying the rule of stare decisis, it is unnecessary to enquire or determine
as to what was the rationale of the earlier decision which is said to operate
as stare decisis."
10 In Manganese Ore
(India) Ltd. V/s. Regional Asstt. CST, (1976) 4 SCC 124, at page 127, it was
opined that the doctrine of stare decisis is a very valuable principle of
precedent which cannot be departed from unless there are extraordinary or
special reasons to do so.
11 In Ganga Sugar
Corpn. V/s. State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned
that, "the Judgments of this Court are decisional between litigants but
declaratory for the nation." This Court further observed:
"28. ...
Enlightened litigative policy in the country must accept as final the
pronouncements of this Court... unless the subject be of such fundamental
importance to national life or the reasoning is so plainly erroneous in the
light of later thought that it is wiser to be ultimately right rather than to
be consistently wrong. Stare decisis is not a ritual of convenience but a rule
with limited exceptions."
12 In Union of
India V/s. Raghubir Singh, (1989) 2 SCC 754, at page 766, this Court has
enunciated the importance of doctrine of binding precedent in the development
of jurisprudence of law:
"8. Taking
note of the hierarchical character of the judicial system in India, it is of
paramount importance that the law declared by this Court should be certain,
clear and consistent. It is commonly known that most decisions of the courts
are of significance not merely because they constitute an adjudication on the
rights of the parties and resolve the dispute between them, but also because in
doing so they embody a declaration of law operating as a binding principle in
future cases. In this latter aspect lies their particular value in developing
the jurisprudence of the law.
9. 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 of his daily affairs. And, therefore, the need for a clear and
consistent enunciation of legal principle in the decisions of a court."
13 In Krishena
Kumar V/s. Union of India, (1990) 4 SCC 207, at page 233, this Court has
explained the meaning and importance of sparing application of the doctrine of
Stare Decisis:
"33.
Stare decisis et non quietamovere. To adhere to precedent and not to unsettle
things which are settled. But it applies to litigated facts and necessarily
decided questions. Apart from Article 141 of the Constitution of India, the
policy of courts is to stand by precedent and not to disturb settled point. When
court has once laid down a principle of law as applicable to certain state of
facts, it will adhere to that principle, and apply it to all future cases where
facts are substantially the same. A deliberate and solemn decision of court
made after argument on question of law fairly arising in the case, and
necessary to its determination, is an authority, or binding precedent in the
same court, or in other courts of equal or lower rank in subsequent cases where
the very point is again in controversy unless there are occasions when
departure is rendered necessary to vindicate plain, obvious principles of law
and remedy continued injustice. It should be invariably applied and should not
ordinarily be departed from where decision is of long standing and rights have
been acquired under it, unless considerations of public policy demand it."
14 In Union of
India &Anr. V/s. Paras Laminates (P) Ltd, (1990) 4 SCC 453 at pg. 457, this
Court observed as under :-
"9.
It is true that a bench of two members must not lightly disregard the decision
of another bench of the same Tribunal on an identical question. This is
particularly true when the earlier decision is rendered by a larger bench. The
rationale of this rule is the need for continuity, certainty and predictability
in the administration of justice. Persons affected by decisions of tribunals or
courts have a right to expect that those exercising judicial functions will
follow the reason or ground of the judicial decision in the earlier cases on
identical matters".
It has been
opined that in the absence of a strict rule of precedent, litigants would take
every case to the highest court, in spite of a ruling to the contrary, in the
hope that the decision may be overruled.
15 In Hari Singh
V/s. State of Haryana, (1993) 3 SCC 114, at page 120, this Court stated the
importance of consistent opinions in achieving harmony in Judicial System:
"10.
It is true that in the system of justice which is being administered by the
courts, one of the basic principles which has to be kept in view, is that
courts of coordinate jurisdiction, should have consistent opinions in respect
of an identical set of facts or on a question of law. If courts express
different opinions on the identical sets of facts or question of law while
exercising the same jurisdiction, then instead of achieving harmony in the
judicial system, it will lead to judicial anarchy."
16 In Tiverton
Estates Ltd. V/s. Wearwell Ltd., (1975) Ch 146 at page 371, Sorman L. J., while
not agreeing with the view of Lord Denning, M.R. about desirability of not
accepting previous decisions, said as follows:
"I
decline to accept his lead only because I think it damaging to the law to the
long term--though it would undoubtedly do justice in the present case. To some
it will appear that justice is being denied by a timid, conservative adherence
to judicial precedent. They would be wrong. Consistency is necessary to
certainty--one of great objectives of law."
17 The second
observation we wish to make is, the doctrine of binding precedent has the merit
of promoting certainty and consistency in judicial decisions. The pronouncement
of law by a larger Bench of the this Court is binding on a Division Bench of
this court, especially where the particular determination by this Court not only
disposes of the case, but also decides a principle of law. We further add that
it would be inappropriate to reagitate the very issue or a particular
provision, which this Court had already considered and upheld.
PER IN-CURIAM DECISIONS
1991 (4) SCC 139
Para 41: Does this principle extend and
apply to a conclusion of law, which was neither raised nor preceded by any
consideration. In other words can such conclusions be considered as declaration
of law? Here again the English courts and jurists have carved out an exception
to the rule of precedents. It has been explained as rule of sub-silentio.
"A decision passes sub-silentio, in the technical sense that has come to
be attached to that phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its mind." (Salmond
on Jurisprudence 12th Edn., p. 153. In Lancaster Motor Company (London) Ltd.
V/s. Bremith Ltd. the court did not feel bound by earlier decision as it was
rendered 'without any argument, without reference to the crucial words of the
rule and without any citation of the authority'. It was approved by this court
in Municipal Corporation of Delhi V/s. Gurnam Kaur. The bench held that,
'precedents sub-silentio and without argument are of no moment'. The courts
thus have taken recourse to this principle for relieving from injustice
perpetrated by unjust precedents. A decision which is not express and is not
founded on reasons nor it proceeds on consideration of issue cannot be deemed to
be a law declared to have a binding effect as is contemplated by Art. 141.
Uniformity and consistency are core of judicial discipline. But that which
escapes in the Judgement without any occasion is not ratio decidendi. In B.
Shama Rao V/s. Union Territory of Pondicherry it was observed, 'it is trite to
say that a decision is binding not because of its conclusions but in regard to
its ratio and the principles, laid down therein'. Any declaration or conclusion
arrived without application of mind or preceded without any reason cannot be
deemed to be declaration of law or authority of a general nature binding as a
precedent. Restraint in dissenting or overruling is for sake of stability arid
uniformity but rigidity beyond reasonable limits is inimical to the growth of
law.
2011 (7) SCC 639
(Three Judges Bench)
Para 61: "per
incuriam" are those decisions given in ignorance or forgetfulness of some
statutory provision or authority binding on the Court concerned, or a statement
of law caused by inadvertence or conclusion that has been arrived at without
application of mind or proceeded without any reason so that in such a case some
part of the decision or some step in the reasoning on which it is based, is
found, on that account to be demonstrably wrong.
State of Uttar
Pradesh and another V/s. Synthetics and Chemicals Ltd. and another (1991) 4 SCC
139
Hon ble Justice
Sahai in his concurring Judgement held that a decision which is not expressed
and is not founded on reasons, nor it proceeded on consideration of issue,
cannot be deemed to be a law declared to have binding effect as is contemplated
by Art. 141. The learned Judge further observed that any declaration or
conclusion arrived at without application of mind or proceeded without any
reason cannot be deemed to be declaration of law or authority of a general
nature binding as a precedent.
AIR 2002 SC 1598
7 So far as the
first question is concerned. Art. 141 of the Constitution unequivocally
indicates that the law declared by the Supreme Court shall be binding on all
Courts within the territory of India. The aforesaid Article empowers the
Supreme Court to declare the law. It is, therefore, an essential function of
the Court to interpret a legislation. The statements of the Court on matters
other than law like facts may have no binding force as the facts of two cases
may not be similar. But what is binding is the ratio of the decision and not
any finding of facts. It is the principle found out upon a reading of a
Judgement as a whole, in the light of the questions before the Court that forms
the ratio and not any particular word or sentence. To determine whether a
decision has 'declared law' it cannot be said to be a law when a point is
disposed of on concession and what is binding is the principle underlying a
decision. A Judgement of the Court has to be read in the context of questions
which arose for consideration in the case in which the Judgement was delivered.
An 'obiter dictum' as distinguished from a ratio decidendi is an observation by
Court on a legal question suggested in a case before it but not arising in such
manner as to require a decision. Such an obiter may not have a binding
precedent as the observation was unnecessary for the decision pronounced, but
even though an obiter may not have a bind effect as a precedent, but it cannot
be denied that it is of considerable weight. The law which will be binding
under Art. 141 would, therefore, extend to all observations of points raised
and decided by the Court in a given case. So far as constitutional matters are
concerned, it is a practice of the Court not to make any pronouncement on
points not directly raised for its decision. The decision in a Judgement of the
Supreme Court cannot be assailed on the ground that certain aspects were not
considered or the relevant provisions were not brought to the notice of the
Court. When Supreme Court decides a principle it would be the duty of the High
Court or a subordinate Court to follow the decision of the Supreme Court. A
Judgement of the High Court which refuses to follow the decision and directions
of the Supreme Court or seeks to revive a decision of the High Court which had
been set aside by the Supreme Court is a nullity. We have to answer the first question
bearing in mind the aforesaid guiding principles. We may refer to some of the
decisions cited by Mr. Rao in elaborating his arguments contending that the
Judgement of this Court dated 6/02/1986 cannot be held to be a law declared by
the Court within the ambit of Art. 141 of the Constitution. Mr. Rao relied upon
the Judgement of this Court in the case of Pandit M. S. M. Sharma V/s. Shri Sri
Krishna Sinha and others, 1959 Suppl (1) SCR 806, wherein the power and
privilege of the State Legislature and the fundamental right of freedom of
speech and expression including the freedom of the press was the subject matter
of consideration. In the aforesaid Judgement it has been observed by the Court
that the decision in Gunupati Keshavram Reddy V/s. Nafisul Hasan, relied upon
by the counsel for the petitioner which entirely proceeded on a concession of
the counsel cannot be regarded as a considered opinion on the subject. There is
no dispute with the aforesaid proposition of law.
11 A recent
decision of this Court in Arnit Das V/s. State of Bihar, 2000 (5) SCC 488, was
also pressed into service by Mr. Rao. In the aforesaid case this Court had
observed that a decision not expressed and accompanied by reasons and not
proceeded on a conscious consideration of issue cannot be deemed to be a law
declared to have a binding effect as contemplated under Art. 141 of the
Constitution.
1990 (3) SCC 682
(Constitution Bench of Five Judges)
Para 40: We now deal with
the question of per incuriam by reason of allegedly not following the
Constitution bench decisions. The Latin expression per incuriam means through
inadvertence. A decision can be said generally to be given per incuriam when
this court has acted in ignorance of a previous decision of its own or when a
High court has acted in ignorance of a decision of this court. It cannot be
doubted that Art. 141 embodies, as a rule of law, the doctrine of precedents on
which our judicial system is based. In Bengal Immunity Company Ltd. V/s. State
of Bihar , it was held that the words of Art. 141, "binding on all courts
within the territory of India", though wide enough to include the Supreme
court, do not include the Supreme court itself, and it is not bound by its own
judgments but is free to reconsider them in appropriate cases. This is
necessary for proper development of law and justice.
Para 43: As regards the
judgments of the Supreme court allegedly rendered in ignorance of a relevant
constitutional provision or other statutory provisions on the subjects covered
by them, it is true that the Supreme court may not be said to "declare the
law" on those subjects if the relevant provisions were not really present
to its mind.
Para 46: To consider the
ratio decidendi of a case we have, therefore, to ascertain the principle on which
the case was decided. Sir George Jessel in Osborne V/s. Rowlatt , remarked that
(Ch D, p. 785 'the only thing in a Judges decision binding as an authority upon
a subsequent Judge is the principle upon which the case was decided'.
[(1989) 1 SCC
101]
Para 11: Pronouncements of law, which are
not part of the ratio decidendi are classed as obiter dicta and are not
authoritative. With all respect to the learned Judge who passed the order in
Jamna Das' case and to the learned Judge who agreed with him, we cannot concede
that this Court is bound to follow it. It was delivered without argument,
without reference to the relevant provisions of the Act conferring express
power on the Municipal Corporation to direct removal of encroachments from any
public place like pavements or public streets, and without any citation of
authority. Accordingly, we do not propose to uphold the decision of the High
Court because, it seems to us that it is wrong in principle and cannot be
justified by the terms of the relevant provisions. A decision should be treated
as given per incuriam when it is given in ignorance of the terms of a statute
or of a rule having the force of a statute. So far as the order shows, no
argument was addressed to the court on the question whether or not any
direction could properly be made compelling the Municipal Corporation to
construct a stall at the pitching site of a pavement squatter. Professor P. J.
Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the
concept of sub silentio at p. 153 in these words :
"A decision
passes sub silentio, in the technical sense that has come to be attached to
that phrase, when the particular point of law involved in the decision is not
perceived by the Court or present to its mind. The Court may consciously decide
in favour of one party because of point A, which it considers and pronounces
upon. It may be shown, however, that logically the Court should not have
decided in favour of the particular party unless it also decided point B in his
favour; but point B was not argued or considered by the Court. In such
circumstances, although point B was logically involved in the facts and
although the case had a specific outcome, the decision is not an authority on
point B. Point B is said to pass sub silentio."
Para 12: In Gerard V/s. Worth of Paris Ltd.
(K), (1936) 2 All ER 905 the only point argued was on the question of priority
of the claimant's debt, and, on this argument being heard, the Court granted
the order. No consideration was given to the question whether a garnishee order
could properly be made on an account standing in the name of the liquidator.
When, therefore, this very point was argued in a subsequent case before the
Court of Appeal in Lancaster Motor Co. (London) Ltd. V/s. Bremith, Ltd., (1941)
1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid
Greene, M. R., said that he could not help thinking that the point now raised
had been deliberately passed sub silentio by counsel in order that the point of
substance might be decided. He went on to say that the point had to be decided
by the earlier Court before it could make the order which it did; nevertheless,
since it was decided "without argument, without reference to the crucial
words of the rule, and without any citation of authority", it was not
binding and would not be followed. Precedents sub silentio and without argument
are of no moment. This rule has ever since been followed. One of the chief
reasons for the doctrine of precedent is that a matter that has once been fully
argued and decided should not be allowed to be reopened. The weight accorded to
dicta varies with the type of dictum. Mere casual expressions carry no weight
at all. Not every passing expression of a Judge, however eminent, can be
treated as an ex cathedra statement, having the weight of authority.
AIR 2012 SC 1228
Para 32: The principle of per incuriam has
been very succinctly formulated by the Court of Appeal in Young V/s. Bristol
Aeroplane Company, Limited reported in 1944 (1) K.B. 718.
Para 33: Lord Greene, Master of Rolls
formulated the principles on the basis of which a decision can be said to have
been rendered `per incuriam'. The principles are:
"Where
the court has construed a statute or a rule having the force of a statute its
decision stands on the same footing as any other decision on a question of law,
but where the court is satisfied that an earlier decision was given in
ignorance of the terms of a statute or a rule having the force of a statute the
position is very different. It cannot, in our opinion, be right to say that in
such a case the court is entitled to disregard the statutory provision and is
bound to follow a decision of its own given when that provision was not present
to its mind. Cases of this description are examples of decisions given per
incuriam."
(Page
729)
Para 34: The decision in Young (supra) was
subsequently approved by the House of Lords in Young V/s. Bristol Aeroplane
Company, Limited reported in 1946 Appeal Cases 163 at page 169 of the report.
Para 35: Lord Viscount Simon in the House
of Lords expressed His Lordship's agreement with the views expressed by the
Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per
incuriam (see the speech of Lord Viscount Simon at page 169 of the report).
Para 36: Those principles have been
followed by the Constitution Bench of this Court in The Bengal Immunity Company
Limited V/s. The State of Bihar and others reported in 1955 (2) SCR 603 [See
the discussion in pages 622 and 623 of the report].
Para 37: The same principle has been
reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. V/s. Wakeling
& another [(1955) 2 QB 379 at page 406]. The principle has been stated as
followed:
"...As
a general rule the only cases in which decisions should be held to have been
given per incuriam are those of decisions given in ignorance or forgetfulness
of some inconsistent statutory provision or of some authority binding on the
court concerned; so that in such cases some part of the decision or some step
in the reasoning on which it is based is found, on that account, to be
demonstrably wrong......."
(page
406)
Para 38: In the case of State of U.P. and
another V/s. Synthetics and Chemicals Ltd. and another reported in (1991) 4 SCC
139, this Court held the doctrine of `per incuriam' in practice means `per
ignoratium' and noted that English Courts have developed this principle in
relaxation of the rule of stare decisis and referred to the decision in the
case of Bristol Aeroplane Co. Ltd. (supra). The learned Judges also made it
clear that the same principle has been approved and adopted by this Court while
interpreting Article 141 of the Constitution (see para 41).
Para 39: In the case of Municipal
Corporation of Delhi V/s. Gurnam Kaur reported in (1989) 1 SCC 101, a three-
Judge Bench of this Court explained this principle of per incuriam very
elaborately in paragraph 11 at page 110 of the report and in explaining the
principle of per incuriam the learned Judges held:
"......A
decision should be treated as given per incuriam when it is given in ignorance
of the terms of a statute or of a rule having the force of a
statute......."
Para 40: In paragraph 12 the learned Judges
observed as follows:
"......One
of the chief reasons for the doctrine of precedent is that a matter that has
once been fully argued and decided should not be allowed to be reopened. The
weight accorded to dicta varies with the type of dictum. Mere casual
expressions carry no weight at all. Not every passing expression of a judge, however
eminent, can be treated as an ex cathedra statement, having the weight of
authority."
2010 (5) SCC 513
Para 51: When a judgment is rendered by
ignoring the provisions of the governing statute and earlier larger Bench
decision on the point such decisions are rendered 'per incuriam'. This concept
of "per incuriam' has been explained in many decisions of this Court. Justice
sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the
case of a. R. Antulay V/s. R. S. Nayak and another reported in [jt1988 (2) SC
408 : 1988 (2) SCC 602] explained the concept in paragraph 42 at page 652 of
the report in following words: "per incuriam" are those decisions
given in ignorance or for get fulness of some inconsistent statutory provision
or of some authority binding on the court concerned, so that in such cases some
part of the decision or some step in the reasoning on which it is based, is
found, on that account to be demonstrably wrong.
Para 52: Subsequently also in the
Constitution Bench judgment of this Court in Punjab Land development and
Reclamation corporation Ltd. , Chandigarh V/s. Presiding officer, Labour Court,
Chandigarh and others reported in [jt 1990 (2) SC 489 : 1990 (3) SCC 682],
similar views were expressed in paragraph 40 at page 705 of the report.
2009 (15) SCC
458
Para 44 …..
In Black's Law
Dictionary, 8th edition, 2004, it is stated: "There is at least one
exception to the rule of stare decisis. I refer to judgments rendered per
incuriam. A judgment per incuriam is one which has been rendered inadvertently.
Two examples come to mind: first, where the judge has forgotten to take account
of a previous decision to which the doctrine of stare decisis applies. For all
the care with which attorneys and judges may comb the case law, errare humanum
est, and sometimes a judgment which clarifies a point to be settled is somehow
not indexed, and is forgotten. It is in cases such as these that a judgment
rendered in contradiction to a previous judgment that should have been
considered binding, and in ignorance of that judgment, with no mention of it,
must be deemed rendered per incuriam; thus, it has no authority.... The same
applies to judgments rendered in ignorance of legislation of which they should
have taken account. For a judgment to be deemed per incuriam, that judgment
must show that the legislation was not invoked." Louis- Philippe Pigeon,
Drafting and Interpreting Legislation 60 (1988) "As a general rule the
only cases in which decisions should be held to have been given per incuriam
are those of decisions given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court concerned, so
that in such cases some features of the decision or some step in the reasoning
on which it is based is found on that account to be demonstrably wrong. This
definition is not necessarily exhaustive, but cases not strictly within it
which can properly be held to have been decided per incuriam, must in our
judgment, consistently with the stare decisis rule which is an essential part
of our law, be of the rarest occurrence." Rupert Cross & J.W. Harris,
Precedent in English Law 149 (4th ed. 1991)"
In an article
"Final Appellate Courts Overruling Their Own "Wrong" Precedents:
The Ongoing Search For Principle" by B.V. Harris published in (2002) 112
LQR 408-427, it is stated: "A decision may be held to be per incuriam
where relevant statutory provisions, or binding case law authority, have been
overlooked or misinterpreted in arriving at the holding in the precedent....
Considerations Relevant To Deciding whether to Defer to or Overrule Precedent:
The first consideration for a final appellate court called upon, in the
exercise of its discretion, to overrule an allegedly wrong precedent of its
own, will be whether the precedent can be distinguished on the facts, including
changing social and other contexts, or distinguished on the law. If the
precedent can be distinguished, overruling will not be necessary. The
subsequent appellate court will rather be free to choose not to follow the
precedent which can be distinguished. Second, the precedent should be
considered closely to determine whether the decision was reached per incuriam.
A per incuriam precedent may be overruled. Third, the workability of the
precedent should be assessed. Evidence of lack of workability may justify
overruling. The fourth consideration will be whether any reasons have been
advanced in the appeal which were not considered in deciding the precedent.
This category could arguably be included in many circumstances, either in the
first category as a form of distinguishing, or in the second category if the omission
is sufficiently serious to cause the precedent to be per incuriam.
All of the first
four considerations have traditionally been accepted as exempting subsequent
appellate courts from the obligation to follow precedent."
In the context
of overruling the two leading precedents {de Freitas v. Benny [1976] AC 239 and
Reckley V/s. Minister of Public Safety and Immigration (No. 2) [1996] A.C.527}
which had held the exercise of the prerogative of mercy to be non-justiciable,
Lord Slynn of Hadley in Lewis V/s. Att. Gen. Of Jamaica [2001] 2 AC 50 at p.
75, stated: "The need for legal certainty demands that they should be
very reluctant to depart from recent fully reasoned decisions unless there are
strong grounds to do so. But no less should they be prepared to do so when a
man's life is at stake, where the death penalty is involved, if they are
satisfied that the earlier cases adopted a wrong approach. In such a case rigid
adherence to a rule of stare decisis is not justified."
AIR 2005 SC 498
Incuria literally
means carelessness - in practice per incuriam is taken to mean per ignoratium -
Art. 141 embodies doctrine of precedents as matter of law - to rectify error is
compulsion of judicial conscience - appeal allowed.
Para 18. ……The
view regarding extension of time to "move" the higher court as culled
out from the decision in K.L. Verma case shall have to be treated as having
been rendered per incuriam, as no reference was made to the prescription in
Sec. 439 requiring the accused to be in custody. In State V/s. Raton Lal Arora
it was held that where in a case the decision has been rendered without
reference to statutory bars, the same cannot have any precedent value and shall
have to be treated as having been rendered per incuriam. The present case stands
on a par, if not, on a better footing. The provisions of Sec. 439 do not appear
to have been taken note of.
Para
19 "Incuria" 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 V/s. 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
this Court while interpreting Art. 141 of the Constitution which embodies the
doctrine of precedents as a matter of law. The above position was highlighted
in State of Uttar Pradesh V/s. Synthetics and Chemicals Ltd. To perpetuate an
error is no heroism. To rectify it is the compulsion of the judicial
conscience.
1990 (3) SCC 682
Para 40 We now deal with the question of per incuriam by reason of allegedly not following the Constitution bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this court has acted in ignorance of a previous decision of its own or when a High court has acted in ignorance of a decision of this court. It cannot be doubted that Art. 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. V/s. State of Bihar , it was held that the words of Art. 141, "binding on all courts within the territory of India", though wide enough to include the Supreme court, do not include the Supreme court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawsons Settlement Lloyds Bank Ltd. V/s. Dawson 0, on 26.07.1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:
"Their
Lordships regard the use of precedent indispensable foundation upon which to
decide what is the its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the conduct of their
affairs, as well as a basis for orderly development of legal rules. Their
Lordships nevertheless recognise that too rigid adherence to precedent may lead
to injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears right to do so. In
this connection they will bear in mind the danger of disturbing retrospectively
the basis on which contracts, settlements of property and fiscal arrangements
have been entered into and also the especial need for certainty as to the criminal
law."
Para
41 Though the above announcement was not made in the course of judicial
proceeding it shows that it is open to House of Lords to depart from the
doctrine of precedent when considered justified. sec. 212 of the government of
India Act, 1935 and Art. 141 of the Constitution of India were enacted to make
the law declared by the Supreme court binding on all courts in the country
excluding, as is now being interpreted, the Supreme court itself. The doctrine
of ratio decidendi has also to be interpreted in the same line. In England a
decision is said to be given per nickname when the court has acted in ignorance
of a previous decision of its own or of a court of co-ordinate jurisdiction
which covered the case before it, or when it has acted in ignorance of a
decision of the House of Lords. In the former case it must decide which
decision to follow, and in the latter it is bound by the decision of the House
of Lords. It has been said that the decision of the House of Lords mentioned
above, refers to a decision subsequent to that of the court of Appeal. However,
"a prior decision of the House of Lords inconsistent with the decision of
the court of Appeal, but which was not cited to the court of Appeal will make
the later decision of the court of Appeal of no value as given per
incunam." But if the prior decision had been cited to the court of Appeal
and that court had misinterpreted a previous decision of the House of Lords,
the court of Appeal must follow its previous decision and leave the House to
rectify the mistake. In Halsburys Laws of England (4th edn" Vol. 10, para
745, it has been said: "While former decisions of the House are normally
binding upon it, the House will depart from one of its own previous decisions
when it appears right in the interests of justice and of the proper development
of the law to do so. Cases where the House may reconsider its own previous
decisions are those involving broad issues of justice or public policy and
questions of legal principle. Only in rare cases will the House reconsider
questions of construction of statutes or other documents. The House is not
bound to follow a previous case merely because it is indistinguishable on the
Acts.
Para 42 The
position and experience in this court could not be much different, keeping in
view the need for proper development of law and justice.
(2011) 1 SCC 694
Para 139. Now we deem it imperative to
examine the issue of per incuriam raised by the learned Counsel for the
parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER
293 the House of Lords observed that `Incuria' literally means
`carelessness'. In practice per incuriam appears to mean per ignoratium.
English Courts have developed this principle in relaxation of the rule of stare
decisis. The `quotable in law' is avoided and ignored if it is rendered, `in
ignoratium of a statute or other binding authority. The same has been accepted,
approved and adopted by this Court while interpreting Article 141 of the
Constitution which embodies the doctrine of precedents as a matter of law.
".... In
Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial
Decisions as Authorities (pp. 297-98, para 578) per incuriam has been
elucidated as under :
"A
decision is given per incuriam when the Court has acted in ignorance of a
previous decision of its own or of a Court of coordinate jurisdiction which
covered the case before it, in which case it must decide which case to follow
(Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293
at 300.
In Huddersfield
Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.); or when
it has acted in ignorance of a House of Lords decision, in which case it must
follow that decision; or when the decision is given in ignorance of the terms
of a statute or rule having statutory force."
Para 140. Lord Godard, C.J. in Huddersfield
Police Authority v. Watson (1947) 2 All ER 193 observed that where a case
or statute had not been brought to the Court's attention and the Court gave the
decision in ignorance or forgetfulness of the existence of the case or statute,
it would be a decision rendered in per incuriam.
Para 141. This Court in Government of
A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC
262 observed as under :
"The
rule of per incuriam can be applied where a Court omits to consider a binding precedent
of the same Court or the superior Court rendered on the same issue or where a
Court omits to consider any statute while deciding that issue."
Para 142. In a Constitution Bench judgment
of this Court in Union of India v. Raghubir Singh (1989) 2 SCC
754, Chief Justice Pathak observed as under :
"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 of his daily affairs. And, therefore, the need for a
clear and consistent enunciation of legal principle in the decisions of a
Court."
Para 143. In Thota Sesharathamma and
another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a
two Judge Bench of this Court held that the three Judge Bench decision in the
case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and
observed as under :
"...It
is a short judgment without adverting to any provisions of Section 14 (1) or
14(2) of the Act. The judgment neither makes any mention of any argument raised
in this regard nor there is any mention of the earlier decision in Badri
Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be
considered as an authority on the ambit and scope of Section 14(1) and (2) of
the Act."
Para 144. In R. Thiruvirkolam v.
Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this
Court observed that the question is whether it was bound to accept the decision
rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC
593, which was not in conformity with the decision of a Constitution Bench
in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J.
speaking for the Court observed as under :
"With
great respect, we must say that the above-quoted observations in Gujarat Steel
at P. 215 are not in line with the decision in Kalyani which was
binding or withD. C. Roy to which the learned Judge, Krishna Iyer, J. was
a party. It also does not match with the underlying juristic principle
discussed in Wade. For the reasons, we are bound to follow the Constitution
Bench decision in Kalyani, which is the binding authority on the
point."
Para 145. In Bharat Petroleum
Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a
Constitution Bench of this Court ruled that a decision of a Constitution Bench
of this Court binds a Bench of two learned Judges of this Court and that
judicial discipline obliges them to follow it, regardless of their doubts about
its correctness.
Para 146. A Constitution Bench of this Court
in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005)
2 SCC 673 has observed that the law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on any subsequent Bench of
lesser or coequal strength.
Para 147. A three-Judge Bench of this Court
in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again
reiterated the clear position of law that by virtue of Article 141 of the
Constitution, the judgment of the Constitution Bench in State of Karnataka and
Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all Courts
including this Court till the same is overruled by a larger Bench. The ratio of
the Constitution Bench has to be followed by Benches of lesser strength. In
para 90, the Court observed as under :
"We
are distressed to note that despite several pronouncements on the subject,
there is substantial increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges and Benches of the
High Courts refuse to follow and accept the verdict and law laid down by
coordinate and even larger Benches by citing minor difference in the facts as
the ground for doing so. Therefore, it has become necessary to reiterate that
disrespect to the constitutional ethos and breach of discipline have grave
impact on the credibility of Judicial Institution and encourages chance
litigation. It must be remembered that predictability and certainty is an
important hallmark of judicial jurisprudence developed in this country in the
last six decades and increase in the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the system inasmuch as the Courts
at the grass roots will not be able to decide as to which of the judgments lay
down the correct law and which one should be followed."
Para 148. In Subhash Chandra and
Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC
458, this Court again reiterated the settled legal position that Benches
of lesser strength are bound by the judgments of the Constitution Bench and any
Bench of smaller strength taking contrary view is per incuriam. The Court in
para 110 observed as under :
"Should
we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an
obiter following the said decision is the question which arises herein. We
think we should. The decisions referred to hereinbefore clearly suggest that we
are bound by a Constitution Bench decision. We have referred to two
Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth
G.S. Medical College (1990) 3 SCC 139 andE.V. Chinnaiah v. State of A.P.
(2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by
this Court in a large number of decisions including the three-Judge Bench
decisions. S. Pushpa (supra) therefore, could not have ignored either Marri
Chandra Shekhar Rao (supra) or other decisions following the same only on
the basis of an administrative circular issued or otherwise and more so when
the constitutional scheme as contained in clause (1) of Articles 341 and 342 of
the Constitution of India putting the State and Union Territory in the same
bracket. Following Official Liquidator v. Dayanand and Others (2008) 10
SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa
(supra) is an obiter and does not lay down any binding ratio."
Para 149. The analysis of English and Indian
Law clearly leads to the irresistible conclusion that not only the judgment of
a larger strength is binding on a judgment of smaller strength but the judgment
of a co-equal strength is also binding on a Bench of Judges of co-equal
strength.
2015 AIR SC 856
Para 13: Before
I consider the correctness of the aforementioned decisions, it would be
necessary to elaborate upon the concept of "per incuriam". The latin
expression per incuriam literally means 'through inadvertence'. A decision can
be said to be given per incuriam when the Court of record has acted in
ignorance of any previous decision of its own, or a subordinate court has acted
in ignorance of a decision of the Court of record. As regards the judgments of
this Court rendered per incuriam, it cannot be said that this Court has
"declared the law" on a given subject matter, if the relevant law was
not duly considered by this Court in its decision. In this regard, I refer to
the case of State of U.P. V/s. Synthetics and Chemicals Ltd., (1991) 4 SCC 139,
wherein Justice R.M. Sahai, in his concurring opinion stated as follows:
"40.
'Incuria' literally means 'carelessness'. In practice per incuriam appears to
mean per ignoratium. English courts have developed this principle in relaxation
of the rule of stare decisis. The 'quotable in law' is avoided and ignored if
it is rendered, 'in ignoratium of a statute or other binding authority'.
..."
Para 14: Therefore,
I am of the considered view that a prior decision of this Court on identical
facts and law binds the Court on the same points of law in a later case. In
exceptional circumstances, where owing to obvious inadvertence or oversight, a
judgment fails to notice a plain statutory provision or obligatory authority
running counter to the reasoning and result reached, the principle of per
incuriam may apply. The said principle was also noticed in the case of Fuerst
Day Lawson Ltd. V/s. Jindal Exports Ltd., (2001) 6 SCC 356.
AIR 2011 SC 1989
59 The Court should
not place reliance upon a judgment without discussing how the factual situation
fits in with a fact-situation of the decision on which reliance is placed, as
it has to be ascertained by analysing all the material facts and the issues
involved in the case and argued on both sides. A judgment may not be followed
in a given case if it has some distinguishing features. A little difference in
facts or additional facts may make a lot of difference to the precedential
value of a decision. A judgment of the Court is not to be read as a statute, as
it is to be remembered that judicial utterances have been made in setting of
the facts of a particular case. One additional or different fact may make a
world of difference between the conclusions in two cases. Disposal of cases by
blindly placing reliance upon a decision is not proper. (Vide: Municipal
Corporation of Delhi V/s. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka &
Ors. V/s. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana &
Anr.V/s. Dharam Singh & Ors.(2009) 4 SCC 340).
PER INCURIAM -
Doctrine:
60 Incuria"
literally means "carelessness". In practice per incuriam is taken to
mean per ignoratium. The Courts have developed this principle in relaxation of
the rule of stare decisis. Thus, the "quotable in law" is avoided and
ignored if it is rendered, in ignorance of a Statute or other binding
authority. While dealing with observations made by a seven Judges' Bench in
India Cement Ltd. etc. etc. V/s. State of Tamil Nadu etc. etc., AIR 1990 SC 85,
the five Judges' Bench in State of West Bengal V/s. Kesoram Industries Ltd.
& Ors., (2004) 10 SCC 201, observed as under:-
"A
doubtful expression occurring in a judgment, apparently by mistake or
inadvertence, ought to be read by assuming that the Court had intended to say
only that which is correct according to the settled position of law, and the
apparent error should be ignored, far from making any capital out of it, giving
way to the correct expression which ought to be implied or necessarily read in
the context, .......... A statement caused by an apparent typographical or
inadvertent error in a judgment of the Court should not be misunderstood as
declaration of such law by the Court."
(Emphasis added)
(See also Mamleshwar Prasad & Anr. V/s. Kanhaiya Lal (Dead) by Lrs., AIR
1975 SC 907; A.R. Antulay V/s. R.S. Nayak, AIR 1988 SC 1531; State of U.P.
& Anr. V/s. Synthetics and Chemicals Ltd. &Anr., (1991) 4 SCC 139; and
Siddharam Satlingappa Mhetre V/s. State of Maharashtra & Ors., (2011) 1 SCC
694).
61 Thus, "per
incuriam" are those decisions given in ignorance or forgetfulness of some
statutory provision or authority binding on the Court concerned, or a statement
of law caused by inadvertence or conclusion that has been arrived at without
application of mind or proceeded without any reason so that in such a case some
part of the decision or some step in the reasoning on which it is based, is
found, on that account to be demonstrably wrong.
62 Admittedly, the
NWDT Award did not provide for allotment of agricultural land to the major sons
of such oustees. The States of Gujarat and Maharashtra had given
concessions/relief over and above the said Award. Thus, the Narmada Bachao
Andolan-I has been decided with presumption that such a right had been
conferred upon major sons by the NWDT Award and Narmada Bachao Andolan-II has
been decided following the said judgment and interpreting the definition of
"family" contained in the R & R Policy. When the two earlier
cases were being considered by the Court, it had not been brought to its notice
that the NWDT Award did not provide for such an entitlement. In such cases, the
issue is further required to be considered as to whether, as we will consider
the definition of the word "family" at a later stage, the mistake
inadvertently committed by this Court earlier, should be perpetuated.
63 The Courts are
not to perpetuate an illegality, rather it is the duty of the courts to rectify
mistakes. While dealing with a similar issue, this Court in Hotel Balaji & Ors.
etc. etc. V/s. State of A.P. & Ors. etc. etc., AIR 1993 SC 1048 observed as
under:
"...To
perpetuate an error is no heroism. To rectify it is the compulsion of judicial
conscience. In this, we derive comfort and strength from the wise and inspiring
words of Justice Bronson in Pierce V/s. Delameter (A.M.Y. at page 18: `a Judge
ought to be wise enough to know that he is fallible and, therefore, ever ready
to learn: great and honest enough to discard all mere pride of opinion and
follow truth wherever it may lead: and courageous enough to acknowledge his
errors".
(See also Nirmal
Jeet Kaur V/s. State of M.P. & Anr., (2004) 7 SCC 558; and Mayuram
Subramanian Srinivasan V/s. CBI, AIR 2006 SC 2449).
64 In re: Sanjiv
Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619,
this Court observed :
"...None
is free from errors, and the judiciary does not claim infallibility. It is
truly said that a judge who has not committed a mistake is yet to be born. Our
legal system in fact acknowledges the fallibility of the courts and provides
for both internal and external checks to correct the errors. The law, the
jurisprudence and the precedents, the open public hearings, reasoned judgments,
appeals, revisions, references and reviews constitute the internal checks while
objective critiques, debates and discussions of judgments outside the courts,
and legislative correctives provide the external checks. Together, they go a
long way to ensure judicial accountability. The law thus provides procedure to
correct judicial errors."
AIR 1988 SC 1531
Para 83: This case has
caused us considerable anxiety. The appellant-accused has held an important
position in this country, being the Chief Minister of a premier State of the
country. He has been charged with serious criminal offences. His trial in
accordance with law and the procedure established by law would have to be in
accordance with the 1952 Act. That could not possibly be done because of the
directions of this court dated 16.02.1984, as indicated above. It has not yet
been found whether the appellant is guilty or innocent. It is unfortunate,
unfortunate for the people of the State, unfortunate for the country as a
whole, unfortunate for the future working of democracy in this country which,
though is not a plant of an easy growth yet is with deep root in the Indian
polity that delay has occurred due to procedural wrangles. The appellant may be
guilty of grave offences alleged against him or he may be completely or if not
completely to a large extent, innocent. Values in public life and perspective
of these values in public life, have undergone serious changes and erosion
during the last few decades. What was unheard of before is commonplace today. A
new value orientation is being undergone in our life and in our culture. We are
at the threshold of the crossroads of values. It is, for the sovereign people
of the country to settle these conflicts yet the courts have vital roles to
play in such matters. With the avowed object of speedier trial the case of the
appellant had been transferred to the High court but on grounds of expediency
of trial he cannot be subjected to a procedure unwarranted by law, and contrary
to the constitutional provisions. The appellant may or may not be an ideal
politician'. It is a fact, however, that the allegations have been brought against
him by a person belonging to a political party opposed to his but that is not
the decisive factor. If the appellant - Shri Abdul Rehman Antulay has infringed
law, he must be dealt with in accordance with the law. We proclaim and
pronounce that no man is above the law, but at the same time reiterate and
declare that no man can be denied his rights under the constitution and the
laws. He has a right to be dealt with in accordance with the law and not in
derogation of it. This court, in its anxiety to facilitate the parties to have
a speedy trial gave directions on 16.02.1984 as mentioned hereinbefore without
conscious awareness of the exclusive jurisdiction of the Special courts under
the 1952 Act and that being the only procedure established by law, there can be
no deviation from the terms of Art. 21 of the constitution of India. That is
the only procedure under which it should have been guided. By reason of giving
the directions on 16.02.1984 this court had also unintentionally caused the
appellant the denial of rights under Art. 14 of the Constitution by denying him
the equal protection of law by being, singled out for a special procedure not
provided for by law. When these factors are brought to the notice of this
court, even if there are any technicalities this court should not feel shackled
and decline to rectify that injustice or otherwise the injustice noticed will
remain forever a blot on justice. It has been said long time ago that
"Actus Curiae Neminem Gravabit" an act of the court shall prejudice
no man. This maxim is founded upon justice and good sense and affords a safe
and certain guide for the administration of the law.
Para 84 Lord Cairns in
Rodger V/s. Comptoir D'escompte De Paris observed thus:
Now,
their Lordships are of opinion, that one of the first and highest duties of all
courts is to take care that the act of the court does no injury to any of the
suitors, and when the expression 'the act of the court' is used, it does not
mean merely the act of the primary court, or of any intermediate court of
appeal, but the act of the court as a whole, from the lowest court which
entertains jurisdiction over the matter up to the highest court which finally
disposes of the case. It is the duty of the aggregate of those tribunals, if I
may use the expression, to take care that no act of the court in the course of
the whole of the proceedings does an injury to the suitors in the court.
Para 85: This passage was
quoted in the Gujarat High court by D. A. Desai, J. speaking for the Gujarat
High court in Soni Vrajlal V/s. Soni Jadavji as mentioned before. It appears
that in giving directions on 16.02.1984, this court acted per incuriam inasmuch
it did not bear in mind consciously the consequences and the provisions of sec.
6 and 7 of the 1952 Act and the binding nature of the larger bench decision in
Anwar Ali Sarkar case which was not adverted to by this court. The basic
fundamentals of the administration of justice are simple. No man should suffer
because of the mistake of the court. No man should suffer a wrong by technical
procedure of irregularities. Rules or procedures are the handmaids of justice
and not the mistress of the justice. Ex debito justitiae. We must do justice to
him. If a man has been wronged so long as it lies within the human machinery of
administration of justice that wrong must be remedied. This is a peculiar fact
of this case which requires emphasis.
Para 107: It is time to
sound a note of caution. This court under its Rules of Business ordinarily sits
in divisions and not as a whole one. Each bench, whether small or large,
exercises the powers vested in the court and decisions rendered by the benches
irrespective of their size are considered as decisions of the court. The
practice has developed that a larger bench is entitled to overrule the decision
of a smaller bench notwithstanding the fact that each of the decisions is that
of the court. That principle, however, would not apply in the present situation
and since we are sitting as a bench of Seven we are not entitled to reverse the
decision of the Constitution bench, Overruling when made by a larger bench of
an earlier decision of a smaller one is intended to take away the precedent
value of the decision without affecting the binding effect of the decision in
the particular case. Antulay, therefore, is not entitled to take advantage of
the matter being before a larger bench. In fact, if it is a case of exercise of
inherent powers to rectify a mistake it was open even to a Five Judge bench to
do that and it did not require a bench larger than the Constitution bench for
that purpose.
Para 140: It is true that
the highest court in the land should not, by technicalities of procedure forge
fetters on its own feet and disable itself in cases of serious miscarriages of
justice. It is said that "Life of law is not logic; it has been
experience". But it is equally true as Cardozo said: "But Holmes did
not tell us that logic is to be ignored when experience is silent." Those
who do not put the teachings of experience and the lessons of logic out of
consideration would tell what inspires confidence in the judiciary and what
does not. Judicial vacillations fall in the latter category and undermine
respect of the judiciary and judicial institutions, denuding thereby respect
for law and the confidence in the even-handedness in the administration of
justice by courts. It would be gross injustice, says an author, (Miller
-"Data of Jurisprudence") to decide alternate cases on opposite
principles. The power to alter a decision by review must be expressly conferred
or necessarily inferred. The power of review - and the limitations on the power
- under Art. 137 are implicit recognitions of what would, otherwise, be final
and irrevocable. No appeal could be made to the doctrine of inherent powers of
the court either. Inherent powers do not confer, or constitute a source of,
jurisdiction. They are to be exercised in aid of a jurisdiction that is already
invested. The remedy of the appellant, if any, is recourse to Art. 137; nowhere
else. This appears to me both good sense and good law.
Para 190: I have given
careful thought to these contentions. The appellant's counsel has relied to a
considerable extent on the maxim "actus curiae neminem gravabit" for
contending that it is not only within the power, but a duty as well, of this
court to correct its own mistakes in order to see that no party is prejudiced
by a mistake of the court. I am not persuaded that the earlier decision could
be reviewed on the application of the said maxim. I share the view of my learned
brother Venkatachaliah, J. that this maxim has very limited application and
that it cannot be availed of to correct or review specific conclusions arrived
at in a judicial decision. My brother Venkatachaliah, J. has further taken the
view that this court cannot exercise any inherent powers for setting right any
injustice that may have been caused as a result of an earlier order of the
court. While alive to the consideration that "the highest court in the
land should not, by technicalities of procedure, forge fetters on its own feet
and disable itself in cases of serious miscarriages of justice", he has,
nevertheless, come to the conclusion that "the remedy of the appellant, if
any, is by recourse to Art. 137 and nowhere else". It is at this point
that I would record a dissent from his opinion. In my view, the decisions cited
do indicate that situations can and do arise where this court may be
constrained to recall or modify an order which has been passed by it earlier
and that when ex facie there is something radically wrong with the earlier
order, this court may have to exercise its plenary and inherent powers to
recall the earlier order without considering itself bound by the nice
technicalities of the procedure for getting this done. Where a mistake is
committed by a subordinate court or a High court, there are ample powers in
this court to remedy the situation. But where the mistake is in an earlier
order of this court, there is no way of having it corrected except by
approaching this court. Sometimes, the remedy sought can be brought within the
four corners of the procedural law in which event there can be no hurdle in the
way of achieving the desired result. But the mere fact that, for some reason,
the conventional remedies are not available should not, in my view, render this
court powerless to give relief. As pointed out by Lord Diplock in Isaacs V/s.
Robertson it may not be possible or prudent to lay down a comprehensive list of
defects that will attract the ex debito justitiae relief. Suffice it to say
that the court can grant relief where there is some manifest illegality or want
of jurisdiction in the earlier order or some palpable injustice is shown to
have resulted. Such a power can be traced either to Art. 142 of the
Constitution or to the powers inherent in this court as the apex court and the
guardian of the Constitution.
Para 191: It is, however,
indisputable that such power has to be exercised in the "rarest of
rare" cases. As rightly pointed out by Shri Jethmalani, there is great
need for judicial discipline of the highest order in exercising such a power,
as any laxity in this regard may not only impair the eminence, dignity and
integrity of this court but may also lead to chaotic consequences. Nothing
should be done to create an impression that this court can be easily persuaded
to alter its views on any matter and that a larger bench of the court will not
only be able to reverse the precedential effect of an earlier ruling but may
also be inclined to go back on it and render it ineffective in its application
and binding nature even in regard to subsequent proceedings in the same case.
In Bengal Immunity Company Limited V/s. State of Bihar this court held that it
had the power, in appropriate cases, to reconsider a previous decision given by
it. While concurring in this conclusion. Venkatarama Ayyar, J. sounded a note
of warning of consequences which is more germane in the present context:
The
question then arises as to the principles on which and the limits within which
this power should be exercised. It is of course not possible to enumerate them
exhaustively, nor is it even desirable that they should be crystallised into
rigid and inflexible rules. But one principle stands out prominently above the
rest, and that is that in general, there should be finality in the decisions of
the highest courts in the land, and that is for the benefit and protection of
the public. In this connection, it is necessary to bear in mind that next to
legislative enactments, it is decisions of courts that form the most important
source of law. It is on the faith of decisions that rights are acquired and
obligations incurred, and States and subjects alike shape their course of
action. It must greatly impair the value of the decisions of this court, if the
notion came to be entertained that there was nothing certain or final about
them, which must be the consequence if the points decided therein came to be
reconsidered on the merits every time they were raised. It should be noted that
though the Privy council has repeatedly declared that it has the power to
reconsider its decisions, in fact, no instance has been quoted in which it did
actually reverse its previous decision except in ecclesiastical cases. If that
is the correct position, then the power to reconsider is one which should be
exercised very sparingly and only in exceptional circumstances, such as when a
material provision of law had been overlooked, or where a fundamental
assumption on which the decision is based turns out to be mistaken. In the
present case, it is not suggested that in deciding the question of law as they
did in State of Bombay V/s. United Motors (India) Ltd the learned Judges
ignored any material provisions of law, or were under any misapprehension as to
a matter fundamental to the decision. The arguments for the appellant before
us, were in fact only a repetition of the very contentions which were urged
before the learned Judges and negatived by them. The question then resolves
itself to this. Can we differ from a previous decision of this court because a
view contrary to the one taken therein appears to be preferable? I would
unhesitatingly answer it in the negative, not because the view previously taken
must necessarily be infallible but because it is important in public interest
that the law declared should be certain and final rather than that it should be
declared in one sense or the other. That, I conceive, in the reason behind Art.
141. There are questions of law on which it is not possible to avoid difference
of opinion, and the present case is itself a signal example of it. The object
of Art. 141 is that the decisions of this court on these questions should
settle the controversy, and that they should be followed as law by all the
courts, and if they are allowed to be reopened because a different view appears
to be the better one, then the very purpose with which Art. 141 has been
enacted will be defeated, and the prospect will have been opened of litigants
subjecting our decisions to a continuous process of attack before successive
benches in the hope that with changes in the personnel of the court which time
must inevitably bring, a different view might find acceptance. I can imagine
nothing more damaging to the prestige of this court or to the value of its
pronouncements. In James V/s. Commonwealth, it was observed that a question
settled by a previous decision should not be allowed to be reopened "upon
a mere suggestion that some or all of the members of the later court might
arrive at a different conclusion if the matter was res integra. Otherwise,
there would be grave danger of want of continuity in the interpretation of the
law" (per Griffiths, C.J. at p. 58). It is for this reason that Art. 141
invests decisions of this court with special authority, but the weight of that
authority can only be what we ourselves give to it.
2004 (7) SCC 558
20 In Salauddin's
case (supra) also this Court observed that the regular Court has to be moved
for bail. Obviously, an application under Section 439 of the Code must be in a
manner in accordance with law and accused seeking remedy under Section 439 must
ensure that it would be lawful for the Court to deal with the application.
Unless the applicant is in custody his making application only under Section
439 of the Code will not confer jurisdiction on the Court to which the
application is made. The view regarding extension of time to "move"
the higher Court as culled out from the decision in K.L. Verma's case (supra)
shall have to be treated as having been rendered per incuriam, as no reference
was made to the prescription in Section 439 requiring the accused to be in
custody. In State through S.P New Delhi V/s. Ratan Lal Arora (2004) 4 SCC 590)
it was held that where in a case the decision has been rendered without
reference to statutory bars, the same cannot have any precedent value and shall
have to be treated as having been rendered per incuriam. The present case
stands at par, if not, on a better footing. The provisions of Section 439 do
not appear to have been taken note of.
21 "Incuria"
literally means "carelessness". In practice per incur/am 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
v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 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 this Court
while interpreting Art. 141 of the Constitution of India, 1950 (in short the
"Constitution') which embodies the doctrine of precedents as a matter of
law. The above position was highlighted in State of U.P. and another V/s.
Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139). To perpetuate an
error is no heroism. To rectify it is the compulsion of the judicial
conscience.
AIR 1979 SC 1384
22 With greatest respect,
the majority decision in Rajendra Prasad's case (AIR 1979 SC 916) (supra) does
not lay down any legal principle of general applicability. A decision on a
question of sentence depending upon the facts and circumstances of a particular
case, can never be regarded as a binding precedent, much less 'law declared'
within the meaning of Art. 141 of the Constitution so as to bind all Courts
within the territory of India. According to the well-settled theory of
precedents every decision contains three basic ingredients:
(i) findings of
material facts, direct and inferential. An inferential finding of facts is the
inference which the Judge draws from the direct, or perceptible facts;
(ii) statements
of the principles of law applicable to the legal problems disclosed by the
facts; and
(iii) Judgement
based on the combined effect of (i) and (ii) above.
For the purposes
of the parties themselves and their privies, ingredient No. (iii) is the
material element is the decision for it determines finally their rights and
liabilities in relation to the subject-matter of the action. It is the
Judgement that estops the parties from reopening the dispute. However, for the
purposes of the doctrine of precedents, ingredient No. (ii) is the vital
element in the decision.
This indeed is
the ratio decidendi. It is not every thing said by a Judge when giving
Judgement that constitutes a precedent. The only thing in a Judge's decision
binding a party is the Principle upon which the case is decided and for this
reason it is important to analyse a decision and isolate from it the ratio
decidendi.
In the leading
case of Qualcast (Wolverhampton) Ltd. V/s. Haynes 1959 AC 743 it was laid down
that the ratio decidendi may be defined as a statement of law applied to the
legal problems raised by the facts as found, upon which the decision is based.
The other two elements in the decision are not precedents. The Judgement is not
binding (except directly on the parties themselves, nor are the findings of
facts. This means that even where the direct facts on an earlier case appear to
be identical to those of the case before the Court, the Judge is not bound to
draw the same inference as drawn in the earlier case.
23 One would find
that in the decision in Rajendra Prasad's case (AIR 1979 SC 916), there are no
ratione decidendi, much less any ratio decidendi.
AIR 2003 SC 2661
11 Courts should
not place reliance on decisions without discussing as to how the factual
situation fits in with the fact situation of the decision on which reliance is
placed. Observations of Courts are not to be read as Euclid's theorems nor as
provisions of the statute. These observations must be read in the context in
which they appear. 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. In London Graving Dock Co. Ltd. v. Morton (1951 AC 737
at p. 761), Lord Mac Dermot observed :
"The matter
cannot, of course, be settled merely by treating the ipsissima vertra of
Willes, J. as though they were part of an Act of Parliament and applying the
rules of interpretation appropriate thereto. This is not to detract from the
great weight to be given to the language actually used by that most
distinguished Judge."
12 In Home Office
V/s. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's
speech........is not to be treated as if it was a statute definition. It will
require qualification in new circumstances." Megarry, J. in Shepherd Homes
Ltd. V/s. Sandham (No. 2) ((1971) 1 WLR 1062) observed : "One must not, of
course, construe even a reserved Judgement of Russell, L. J. as if it were an
Act of Parliament." In her rington V/s. British Railways Board (1972 (2)
WLR 537) Lord Morris said :
"There
is always peril in treating the words of a speech or Judgement as though they
are words in a legislative enactment, and it is to be remembered that judicial
utterances made in the setting of the facts of a particular case."
13 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.
14 The following
words of Lord Denning in the matter of applying precedents have become locus
classicus :
"Each case
depends on its own facts and a close similarity between one case and another is
not enough because even a single significant detail may alter the entire
aspect. In deciding such cases, one should avoid the temptation to decide cases
(as said by Cordozo) by matching the colour of one case against the colour of
another. To decide, therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive."
xxx xxx xxx xxx
xxx
"Precedent
would be followed only so far as it marks the path of justice, but you must cut
the dead wood and trim off the side branches, else you will find yourself lost
in thickets and branches. My plea is to keep the path to justice clear of
obstructions which could impede it.
Binding
Precedents create “Issue Estoppel”
Binding
Precedents and unambiguous statutory provisions create issue estoppel. Any
party is precluded from arguing contrary to what the law is and what the law is
laid down.
In a given case,
what a party can only argue is non applicability of statutory provision or the
non applicability of precedent itself, to the facts of the case at hand.
If the party is
not disputing the application of the statutory provision or the application of
precedent, to the facts of the case, then he cannot be heard on the said issue.
When the
material facts of the case are not in dispute, then, by applying binding
Precedents and unambiguous statutory provisions may result in immediate and
easy adjudication of litigation.
Nevertheless,
High Courts and SC are always at liberty to deviate from what the law is laid
down by themselves, on the grounds of (a) "law being laid down on the
erroneous view of law" or (b) "law being laid down over the ignorance
of relevant statutory provision or ignorance of earlier binding judgment",
or (c) "changed circumstances" and this is how the development of law
takes place.
Not all
precedents are binding precedents. In the settings of Rule of law, the lower
Courts are bound by the law laid down by HCs and SC. Similarly, High Courts are
bound by the law laid down by the Apex
Court. Equally, a single Bench of the High Court is bound by the decision of
the Division Bench and Division Bench is Bound by the decision of the full
Bench of three judges. Similarly, Division Bench of the SC is bound by the decisions
of the Three judges Bench and three judges Bench is bound by the Constitution
Bench Rulings. [(2002) 4 SCC 578; (2008) 10 SCC 1]
Binding nature of Precedents
AIR 2013 SC 1921
31 Registrar/Joint
Registrar is bound to follow the Judicial Precedents. Ratio decidendi has the
force of law and is binding on all statutory authorities when they deal with
similar issues. The Madhya Pradesh High Court in several judgments has
explained the scope of the second proviso to Section 53(1) of the Act.
Reference may be made to the judgments in Radheshyam Sharma V/s. Govt. of M.P.
through C.K. Jaiswal and Ors. 1972 MPLJ 796, Board of Directors of Shri Ganesh
Sahakari Vipnan (Marketing) Sanstha Maryadit and Another V/s. Deputy Registrar,
Co-operative Societies, Khargone and Others, 1982 MPLJ 46 and Sitaram V/s.
Registrar of Co-operative Societies and another 1986 MPLJ 567.
32 We fail to see
why the Joint Registrar has overlooked those binding judicial precedents and
the ratio decidendi. Judicial rulings and the principles are meant to be
followed by the statutory authorities while deciding similar issues based on
the legal principles settled by judicial rulings. Joint Registrar, while
passing the impugned order, has overlooked those binding judicial precedents.
33 We fail to
notice why the State Government, Department of Co- operative Societies has
taken so much interest in this litigation. Joint Registrar in his letter dated
19.8.2009 to RBI stated that in the case of District Co-operative Bank, the
powers under Section 53(2) of the Act are vested with Regional Joint Registrar
and the notice issued by the Joint Registrar is not meant for the opinion of
the State Government. Assuming, the State Government has powers under Section
49-C of the Act, no report has been forwarded by the Registrar to the State
Government and no direction have been issued by the State Government with
regard to the supersession of the Board. Sorry so note that the State Government
has spent huge public money by litigating this matter even up to this Court,
that too, without following the binding precedents of the Madhya Pradesh High
Court on the scope of the second proviso to Section 53(1) of the Act.
AIR 2000 SC 594
12 At the outset,
we must express our serious dissatisfaction in regard to the manner in which a
Coordinate Bench of the tribunal has overruled, in effect, an earlier Judgement
of another Coordinate Bench of the same tribunal. This is opposed to all
principles of judicial discipline. If at all, the subsequent Bench of the
tribunal was of the opinion that the earlier view taken by the Coordinate Bench
of the same tribunal was incorrect, it ought to have referred the matter to a
larger Bench so that the difference of opinion between the two Coordinate
Benches on the same point could have been avoided. It is not as if the latter
Bench was unaware of the Judgement of the earlier Bench but knowingly it
proceeded to disagree with the said Judgement against all known rules of
precedents. Precedents which enunciate rules of law form the foundation of
administration of justice under our system. This is a fundamental principle
which every Presiding Officer of a Judicial Forum ought to know, for
consistency in interpretation of law alone can lead to public confidence in our
judicial system. This Court has laid down time and again precedent law must be
followed by all concerned; deviation from the same should be only on a
procedure known to law. A subordinate Court is bound by the enunciation of law
made by the superior Courts. A coordinate Bench of a Court cannot pronounce
Judgement contrary to declaration of law made by another Bench. It can only
refer it to a larger Bench if it disagrees with the earlier pronouncement. This
Court in the case of Tribhuivandas Purshottamdas Thakur V/s. Ratilal Motilal
Patel, (1968) 1 SCR 455 while dealing with a case in which a Judge of the High
Court had failed to follow the earlier Judgement of a larger Bench of the same
Court observed thus (para 11 of AIR) :-
"The
Judgement of the Full Bench of the Gujarat High Court was biding upon Raju, J.
If the learned Judge was of the view that the decision of Bhagwati, J. in
Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, in Haridas's
case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice,
it was open to him to recommend to the Chief Justice that the question be
considered by a larger Bench. Judicial decorum, propriety and discipline
required that he should not ignore it. Our system of administration of justice
aims at certainty in the law and that can be achieved only if Judges do not
ignore decisions by Courts of coordinate authority or of superior authority.
Gajendragadkar, C. J. observed in Lala Bhagwan V/s. Ram Chand, (AIR 1965 SC
1767).
"It is
hardly necessary to emphasis that considerations of judicial propriety and
decorum require that if a learned single Judge hearing a matter is inclined to
take the view that the earlier decisions of the High Court, whether of a
Division Bench or of a single Judge, need to be re-considered, he should not
embark upon that enquiry sitting as a single Judge, but should refer the matter
to a Division Bench, or, in a proper case, place the relevant papers before the
Chief Justice to enable him to constitute a larger Bench to examine the
question. That is the proper and traditional way to deal with such matters and
it is founded on healthy principles of judicial decorum and propriety."
13 We are indeed
sorry to note the attitude of the tribunal in this case which, after noticing
the earlier Judgement of a coordinate Bench and after noticing the Judgement of
this Court, has still thought it fit to proceed to take a view totally contrary
to the view taken in the earlier Judgement thereby creating a judicial
uncertainty in regard to the declaration of law involved in this case. Because
of this approach of the latter Bench of the tribunal in this case, a lot of
valuable time of the Court is wasted and the parties to this case have been put
to considerable hardship.
2011 (13) SCC
180
19 In that view of
the matter, when the law on the question at issue before the Tribunal had
already been declared by this Court, the Tribunal should not have based its
decisions on the clarification issued by the Board, which otherwise stood
rescinded, on the specious ground that the said clarification issued by the
Board was binding on the Deputy Commissioner as also on the Commissioner
(Appeals). It is well settled proposition of law that Circulars and instructions
issued by the Central Board of Excise and Customs are no doubt binding in law
on the authorities under the respective Statutes but when this Court or the
High Court declares the law on the question arising for consideration, it would
not be appropriate for the Courts or the Tribunal, as the case may be, to
direct that the Board's Circular should be given effect to and not the view
expressed in a decision of this Court or a High Court. [(See: Ratan Melting
& Wire Industries (supra)].
AIR 1995 SC 1349
3 Learned counsel
for the appellant while assailing the impugned order of the Tribunal submitted
that it had laboured unnecessarily to get out of the binding judgement of this
Court in Union of India V/s. Harnam Singh (1993) 2 SCC 162 : (1993 AIR(SCW)
1241) which was fully attracted to the facts and circumstances of the case.
Learned counsel submitted that the date of birth which had been recorded in the
service record of the respondent was 6.9.1930 and that till almost the eve of
his retirement the respondent took no steps to have the recorded date of birth
altered, even though opportunity had been granted to all literate employees of
the Railways to have their date of birth altered, in case the same had been
recorded wrongly, till 31.7.1993 and as such the Tribunal should have refused
the alteration of the date of birth of the appellant, which had been claimed
after an inordinate and unexplained long delay of more than quarter of a
century.
4 In Union of
India v, Harnam Singh (1993 AIR(SCW) 1241 at p. 1246) (supra) this Court opined
that :
"A
Government servant, after entering into service acquire the right to continue
in service till the age of retirement, as fixed by the State in exercise of its
powers regulating conditions of service, unless the services are dispensed with
on other grounds contained in the relevant service rules after following the
procedure prescribed therein. The date of birth entered in the service records
of a civil servant is thus of utmost importance for the reason that the right
to continue in service stands decided by its entry in the service record. A
Government servant who has declared his age at the initial stage of the
employment is, of course, not precluded from making a request later on for
correcting his age. It is open to a civil servant to claim correction of his
date of birth, if he is in possession of irrefutable proof relating to his date
of birth as different from the one earlier recorded and even if there is no
period of limitation prescribed for seeking correction of date of birth, the
Government servant must do so without any unreasonable delay. In the absence of
any provision in the rules for correction of date of birth, the general
principle of refusing relief of grounds of laches or stale claims, is generally
applied by the Courts and Tribunals. It is nonetheless competent for the
Government to fix a time-limit, in the service rules, after which no
application for correction of date of birth of a Government servant can be
entertained. A Government servant who makes an application for correction of
date of birth beyond the time, so fixed, therefore, cannot claim as a matter of
right, the correction of his date of birth even if he has good evidence to
establish that the recorded date of birth is clearly erroneous. The law of
limitation may operate harshly but it has to be applied with all its rigour and
the courts or tribunals cannot come to the aid of those who sleep over their
rights and allow the period of limitation to expire. Unless altered, his date
of birth as recorded would determine his date of superannuation even if it
amounts to abridging his right to continue in service on the basis of his
actual age."
5 The Tribunal
noticed the Judgement rendered by this court in Harnam Singh's case (1993
AIR(SCW) 1241) (supra) but curiously failed to follow it observing :
"Although
the respondents neither quoted in the reply nor took the opportunity of
bringing the case to our notice, we are bound to respect the ratio of the
latest Supreme Court Judgement in Union of India V/s. Harnam Singh 1993 SCC (L
and S) 375 : (1993 AIR(SCW) 1241), in the matter of date of birth and which
overrules CAT Full Bench decision in Darshan Singh's case. That case which
related to interpretation of Note No. 5 to FR-56(M) which was incorporated only
in 1979 provided for request to be made for correction of date of birth within
five years from the date of entry into service. The Hon ble Supreme Court held
that in case of Government servants who entered service prior to 1979, it will
be appropriate and in tune with harmonious construction to be held that they
may seek the correction of date of birth after 1979, but in any event not later
then 5 years after coming into force of the amendment in 1979. The Supreme
Court also observed that Darshan Singh's case was distinguished by the fact
that Shri Darshan Singh had not been shown the service book even once during
his entire service. The Supreme Court also referred to the General rule that in
the absence of date of birth the general principle of refusing relief of the
ground of laches and stale claim is generally applied by the Courts and
Tribunals.
We are bound by
Supreme Court's decision in Harnamsingh's case but in view of the
special features
of the instant case, we hold that we are required to consider the case on
merits."
The approach of
the Tribunal is patently objectionable and does not commend to us. It attempted
to circumvent the law laid down by this Court on untenable reasons by stating
that "we are required to consider the case on merits" without in fact
so considering. The law laid down by this Court is binding on all courts and
tribunals. Indeed, the law as declared by this Court has to be applied to the
facts of a given case and not applied mechanically but we find that in the
present case the facts were so eloquent that no scope was available with the
Tribunal to get over the opinion expressed by this Court in Harnamsingh's case
(1993 AIR(SCW) 1241) (supra) and on the facts as established on the record the
Tribunal had no option but to refuse relief to the respondent.
AIR 1984 SC 892
6 The direction of
the appellate court is certainly, binding on the court is subordinate thereto.
That apart, in view of the provisions of Art. 141 of the Constitution, all
courts in India are bound to follow the decisions of this Court. Judicial
discipline requires and decorum known to law warrants that appellate directions
should be taken as binding and followed. It is appropriate to usefully recall
certain observations of the House of Lords in Broome V/s. Cassell & Co.
(1972) 1 All ER 801. Therein Lord Hailsham, L. C. observed :
"The fact
is, and I hope it will never be necessary to say so again, that in the
hierarchical system of courts which exist in this country, it is necessary for
each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers."
Lord Reid added
:
"It seems
to me obvious that the Court of Appeal failed to understand Lord Devlin's
speech but whether they did or not, I would have expected them to know that
they had no power to give any such direction and to realise the impossible
position in which they were seeking to put those judges in advising or
directing them to disregard a decision of this House."
Lord Diplock
observed at p. 874 of the Reports :
"It is
inevitable in a hierarchical system of courts that there are decisions of the
Supreme Appellate tribunal which do not attract the unanimous approval of all
members of the judiciary. When I sat in the Court of Appeal, I sometimes
thought the House of Lords was wrong in overruling me. Ever since that time
there have been occasions, of which the instant appeal is one, when alone or in
company, I have dissented from a decision of the majority of this House. But
the judicial system only works if someone is allowed to have the last word and,
if that last word, once spoken, is loyally accepted."
AIR 2012 SC 2413
27 Now, let us
examine the adverse consequences of non-adherence to the prescribed schedules.
The schedules prescribed have the force of law, in as much as they form part of
the judgments of this Court, which are the declared law of the land in terms of
Article 141 of the Constitution of India and form part of the regulations of
the Medical Council of India, which also have the force of law and are binding
on all concerned. It is difficult to comprehend that any authority can have the
discretion to alter these schedules to suit a given situation, whether such
authority is the Medical Council of India, the Government of India, State
Government, University or the selection bodies constituted at the college level
for allotment of seats by way of counseling. We have no hesitation in clearly
declaring that none of these authorities are vested with the power of relaxing,
varying or disturbing the time schedule, or the procedures of admission, as
provided in the judgments of this Court and the Medical Council of India
Regulations.
2008 (14) SCC
171
39 As stated
earlier, the decision was rendered in appeal by the Income Tax Appellate
Tribunal, Rajkot. Miscellaneous Application came to be filed by the assessee
under sub- sec. (2) of Sec. 254 of the Act stating therein that a decision of
the 'Jurisdictional Court', i.e. the High Court of Gujarat in Hiralal Bhagwati
was not brought to the notice of the Tribunal and thus there was a
"mistake apparent from record" which required rectification.
40 The core issue,
therefore, is whether non-consideration of a decision of Jurisdictional Court
(in this case a decision of the High Court of Gujarat) or of the Supreme Court
can be said to be a "mistake apparent from the record"? In our
opinion, both - the Tribunal and the High Court - were right in holding that
such a mistake can be said to be a "mistake apparent from the record"
which could be rectified u/s. 254(2).
In
the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court
have held that the Public authorities / persons may be held guilty of contempt
of the Court, if, in the regular discharge of their duties, they knowingly
disregard the law laid down by the said Court.
It is a case where, despite being specifically brought to
the knowledge of the law being laid down by the Bombay High Court, the Public
officer acted in breach of the law laid down; and the High Court, in the Writ
jurisdiction, initiated Contempt proceedings against the said officer.
The Court held that –
(a) It is
immaterial that in a previous litigation the particular petitioner before the
Court was or was not a party, but if a law on a particular point has been laid
down by the High Court, it must be followed by all authorities and tribunals in
the State;
(b) The
law laid down by the High Court must be followed by all authorities and
subordinate tribunals when it has been declared by the highest Court in the
State and they cannot ignore it either in initiating proceedings or deciding on
the rights involved in such a proceeding;
(c) If
inspite of the earlier exposition of law by the High Court having been pointed
out and attention being pointedly drawn to that legal position, in utter
disregard of that position, proceedings are initiated, it must be held to be a
wilful disregard of the law laid down by the High Court and would amount to
civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.vakeelkanumber.com/
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