Abstract
If we want to give any new decision [in law] then it will take too long time as we had to find out the each and everything, the rules applicable, the doctrines, if any, in short we had to go to the root of everything. At the same time if a matter is already decided by any higher authority then it will become easier to the lower courts to give the decision as some principles have been laid down by the superior court and the lower court has to follow as per the principles laid down by the superior court/ apex court. As is rightly said if you want to improve yourself look backward and then rectify the error that is committed by you and then go forward. From an earlier decision of the higher court/ apex court they themselves can modify, rectify and recreate the order as per the situation demanding by the time, their lies some concrete rules which has to be followed and at some places the rules can be altered so as to suit the present case. Though good but has got its own limitations. The time and situation is changing fast in this modern world and if Court would only relay upon the doctrine of stare decisis then they are axing their own foot by themselves as they are not able to deliver suitable and appropriate judgement as per the case and circumstance prevailing. The court has to be cautious with the development of technology and should keep with pace of time. Let the previous decision be a guiding principles and based on it they have to form new principles and doctrine as per the demand of time.
KEY WORDS: Precedent, Ratio Decidendi, Stare Decisis, Apex court, Lower Court
Definitions.
Stare decisis et non quieta movere – To stand by decisions that are already settled and not to disturb those settled matters. Under Common Law system it is termed as Precedent
Per incuriam: Through lack of care, a device within the common law system of judicial precedent.
Sub silentio: Latin term meaning “under silence” or “in silence”. It is often used as a reference to something that is implied but not expressly stated.
Prospective overruling: The decision is followed immediately without wasting any time
Ratio decidendi: The rationale for the decision. The Ratio Decidendi is “the point in a case that determines the judgement” or “the principle that the case establishes”.
Introduction:
In English there is a saying that always look backwards from and the see the path traversed. This saying is used when a person reached a high position and doesn’t care for the lower grade people who assist him in various ways. But does this saying is also applicable in the legal system? Well this is what am going to discuss here in this paper. This saying is applied by the bar and the bench in tato. The wanton for any judge in judiciary is to look backward and see that is there any judgement delivered for this particular case already and if so what is the ratio decendi of the case and is it applicable to the present case? The only reason is that the judge want to be safe from all the side and don’t want to take any risk for himself in dispensing a new judgement and a new concept of law. With the passage of time this has become a trend for the bar and the bench to look to the previous case and took some part of it and apply the same principles in the present case and then decide the case. This is advisable only to a certain limit and not further. The reason is that all the cases is not that of the previous case and not all the circumstance are the same as that is there in the previous cases/ suit. This in other way is known as following the precedent. The decision of an earlier one and following now in the present suit and helping the bar and the bench to reach final conclusion to the suit i.e. the judgment of the case filed in the court and to dispose off the case.
During the olden days i.e. period before 17th century in England the judges used to visit each towns every month for dispensing the justice to the particular town/ village and whenever they faced the same situation that is already decided in one town/ village and the matter is same in another town/ village they used to give the same decision as given in the decided matter of previous town/ village. From there onwards the concept of precedent started and continued to follow. From that period onwards judges took the view of precedent and considered as a valid one and hence the doctrine of stare decisis came into existence. This was accepted by both England and Indian judicial system. In the famous case of Mirehouse vs Rennel Chief Justice Parker reiterated the urgent need for the recognition and binding force to the precedent in 1883. This was begin of the doctrine of stare decisis. After this is being promulgated by the court, thereafter the Supreme Court of Judicature Act of 1873 came into existence and in the year 1875 the doctrine of stare decisis was finally firmly established as a well-established law. From there onwards the court have considered as an essential feature of law and was given importance in both England and Indian Judicial System.
Concept and origin of the doctrine:
Following the older decision of an earlier case in the present alike case is called a precedent. It is one of the source of law and has got a wide importance of it in the legal history of any nation. In fact some of the written laws that today are existing is made from such precedents and custom laws of olden days and the same is converted into codified law with some minor changes according to the situation prevailing. Though the term is precedent is meant by something that is already done and is following the same footing in judicial system we can use another term known as doctrine of stare decisis. The full Latin term of the stare decisis is stare decisis et non quieta movere which literally means- to stand by decisions that are already settled and not to disturb those settled matters. This is a good advantage for the bar and the bench as it will guide the suit in a particular direction rather than an un-traversed way. By following this way for a long time then it becomes a rule of law after certain period of time. Once this is done then in all similar cases/ suit the principles laid in the old suit will be followed in the present case and it will reach to a conclusion with a variant judgement than the earlier one depending upon the present situation. This was particularly followed by the lower courts as the higher courts used to deliver the judgement on major issues that will affect the whole nation and the lower courts have to follow those decisions as dispensed by higher courts. They have to follow the principles as laid down in the decided case of Higher Courts and make sure that they stick to the principles and then they have to decide their own case which is in front of them. In India the system is that the decisions of high court will be followed by the state in which the High court is situated and not necessary to follow the same decision by another high court and the decision of Supreme Court will be followed throughout India. The first case for the commencement of this doctrine is from the case of Mirehouse vs Rennel which initiated the process of reporting of the judgement which at one time was not there in the judiciary system of the world. But after this case the judgments of higher judiciary came to be reported and the made the lower courts to follow it.
Indian scenario:
Indian constitution has also recognised the doctrine of stare decisis. Under Article 141 of the constitution it is stated that the law declared by the supreme court of India shall be binding on all courts in India. It is emphatically stated that all the courts in India shall be followed the law declared by Supreme Court which in other way means that the Supreme Court itself is also come under the lens of its own decision and has to follow those decisions given the apex court itself and not to deviate from its earlier decision.
With the passage of time it seen by the courts that as time changes the impact of earlier decision should also be changed.
Effect of other doctrines in the doctrine- exception to the applicability of the doctrine:
The doctrine is supported by the following doctrines also where the court can change their previous view and can depart from it. The court is free to frame a new set of principles of based on the previous decisions and can rectify its own err which incurred in the previous decisions. The doctrines that are connected are:-
- Decisions reached per incuriam
- Decisions sub silentio
- Doctrine of prospective overruling
- Ratio decidendi
Decisions reached per incuriam:
Per Incuriam literally means through lack of care. It means that the thing is not looked upon as it should be looked upon and had seen the matter in an ordinary way whereas it actually required a deep looking/ scrutiny. But how does this affect the judiciary as we have seen that judges don’t make any room for error as it will affect the whole judgement and in turn the parties to the suit. The work of judiciary is to look at every nook and corner of the case and then give the final verdict. But it sometimes happens – rarest of rare case- that while looking to one point they may fail to look at the other point which is negligible one but has got a much relevance to the case and overlooking that point/ matter they may come to the conclusion and give their final verdict of the case. In such a situation the work of higher courts will come into play although they are not bound to see the very facts of the case and the very evidence the lower court has collected/ gathered for the given case. They can rectify the error that have been committed by lower courts and reverse the judgement accordingly and give back the case to the lower court and the lower court has to follow the same. Here the problem is solved and will the parties are not affected at all. If this is done a High court then it can be said that the justice is done to the parties and the parties are at no way denied the justice. It may also happen that the lower court may sometimes may not be aware of particular decision passed by the higher court and without its notice they gave the judgement or the very existence of any particular rules, regulations, laws etc. are not being followed in its true sense then it may happen the court where the matter is tried can commit some error in ignorance. Many a times it seen that the lower court are not very much equipped to deal with the questions of law and they, according to their knowledge decide the case and later-wards when the matter is appealed in the higher court some error in the evidence or argument is observed and then, the same is rectified by the higher court. But what happens if the higher court does the mistake in considering a matter before it? The only remedy available is to file the matter before the apex court and let the apex court give its final verdict on the case. The reason for this is that the lower courts are over burdened with huge work load and many of the vaccines are not filled by the appropriate authority so as to reduce the work load of the judges and can dispense the judgement properly with cent percent accuracy.
One of the leading case of per incuriam is of Morrelle Ltd vs Wakeling,deliverd by Lord Evershed, M.R where he stated that – 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 provisions or of some authority binding on the court concerned, so that in such case some feature of the decisions 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 judgement, consistently with the stare decisis rule is essential part of our law, be the rarest occurrence.
Decisions sub- silentio:
This doctrine means that some of the matter in the judgement even though argued before the court the judges may not have incorporated the same in their judgement yet the decisions covers the full point of the case including the point which is not covered in the judgement. Here the counsel has not argued before the court and not make known to the court before giving the final judgement of the suit and later-wards the judge has not covered those points in his judgement. This in technical way cannot be used in the doctrine of stare decisis as the whole point on which the case is lies may not be covered in the previous case/ suit and is an exceptions to the above doctrine.
This does not mean that the doctrine of sub silentio should be completely ignored. Along with this doctrine the doctrine of per incuriam can be attached and then if we read the whole judgement we can use the doctrine of overrule the doctrine of stare decisis and can give a new verdict in the present case ignoring the previous judgment given by the same court itself. Here the court is diverting its own decision given earlier and is framing a new decision and rectifying the earlier decisions given by them. Many a times it may happen that the court because of its over-burden work sometimes under looks the matter and don’t cognizance of the matter and delivers the judgment. Under such circumstance the lower court and other court will be in trouble as the highest court has not looked a certain point which is otherwise important to the case.
Doctrine of prospective overruling:
Usually the concept is that whatever laws/rules/ regulation is made by a higher/ highest court of a country the effect of the decision is followed immediately without wasting any time. Many a time it may happen that a wrong decision is already made and is passed through the lower courts and on that basis the lower courts are delivering the judgement it may be possible that the lower courts are delivering a wrong judgement on a certain point. This in turn in will be again dealing with the doctrine of per incuriam and/ or sub- silentio. Either of the two doctrines are in existence of the decision passed by the apex court. When such thing is brought to the notice of the issuing court then they will rectify the said error and give an new decision in a separate case that has come before them. Now the applicability of this new principle will be having a prospective effect rather than retrospective effect. If the court makes any decision to be implemented from retrospective effect then it will hamper the judiciary system of the country and will be contradictory to the article enshrined in the constitution that no man should be tried twice for the same offence or in short the doctrine of double jeopardy will be applicable. Hence in order to avoid such circumstance the erred decision after its overruling will be having a prospective and not from retrospective effect.
In India this can be seen from the cases of Golak Nath – AIR 1967 SC 1643– where the apex court adopted the doctrine of prospective overruling. In the given case the validity of the 1st, 4th and 7th amendments of the Indian constitution were challenged and contended that the amendments were invalid. Before this case was brought to the Supreme Court of India, the court held in the case of Shankari Prasad and other cases that the 1st, 4th and 7th amendments made in the constitution of India are valid and not violating any rights of the citizen. If the court made the decision to the effect of retrospective effect then all those cases decided earlier will be null and void and will have huge complication and ambiguity in the execution of the judgement , hence in order to avoid any such ambiguities the court made the decision of Golak Nath a prospective effect than a retrospective effect.
Ratio Decidendi:
The term is derived from Latin and stands “the reason” or “the rationale for the decision”.
Figure 1: Ratio Decendi; source- internet
From the above figure we can comparatively see that how a judgment is made by a Judge in the court. The Judge has always write the ratio of the case in order to have a binding effect of the case because of this I have delivered the judgement so that the parties can come across how the judge came to the conclusion. The decision given in one case may not be the same one for another case as each case is different in its own way. One cannot put a cent percent on the previous decision and take the view in the current matter that is pending before the court. it may happen that the previous judgment given is some ten years old and now if apply the same judgement then the application of that judgement in the present situation is of little use and many of the circumstance from the past have changed and those conditions may not be in existence today. If that was the situation then there will be no new law in the country. Law will become a static one instead of flexible. The judges should not relay completely on the ratio of the previous case in the present case. Again the view of one judge may differ from another judge and what the previous judge has took into consideration may not be necessary for the present judge to take into consideration. But this doesn’t mean that those decision will be completely useless. The judge should take the previous judgement its ratio accordingly and use it in the present case accordingly to reach the final judgement, but should not relay completely on it for the whole judgment.
Some of the cases where the SupremeCourt has taken the doctrine of stare decisis as an important one:
In Waman Rao v. Union of India, (1981) 2 SCC 362 it is started that: 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.”
In Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4 SCC 124, 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.
In Ganga Sugar Corpn. vs. 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: “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”.
In Krishena Kumar v. Union of India, (1990) 4 SCC 207, the apex court has explained the meaning and importance of sparing application of the doctrine of Stare Decisis: “Stare decisis et non quieta movere. 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[1] 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.”
In Hari Singh v. State of Haryana, (1993) 3 SCC 114, the Supreme Court stated the importance of consistent opinions in achieving harmony in Judicial System:
“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.”
Conclusion:
Enactments and statue laid down by the legislature usually lay down the rules and procedure for finalization of dispute between the disputed parties, but it is the court who has to follow and take the final decision on the matter. Whether the court is making any new interpretation or is sticking with the old interpretation can only be decided by the Court. If the court wants to ease its work then it will follow the doctrine of stare decisis as it acts like a precedent and the court can take some of the major points and decide the present case before it accordingly. The doctrine of stare decisis is constitutionally valid in India as given under article 141[2] of our constitution[3]. The rule made by the highest Court in a country will be binding upon all the subordinates Courts of the nation, in our county the decisions/ orders passed by the supreme court of India will be binding throughout the country and even to that extent that the decision of divisional bench will be binding upon the single bench of the Supreme Court. This shows that let there be consist in the judgment and let not be any deviation on the similar type cases coming before the lower Courts and let not the people lost their hope in judiciary by giving different order/ judgment in a similar case/ suit.
For the applicability of the doctrine of Stare Decisis two points should be kept in mind, first that the decision/ order was given by the highest/ apex court of the country and second the decision should be authenticated one and reported one.
There are pros and cons while utilizing the Doctrine of Stare Decisi, but the court has to make a balance of convenience so that the parties to the suit is not affected. Let not the settled principle be disturbed without unnecessary cause but should be applied with conscious as, as the time changes the principles and interpretation also do changes. The Supreme Court have taken this concept in the Mirzapur Moti Kureshi Kasab case and stated that stare decisis is ordinarily to be adhered to, precedents can be reconsidered in view of changed circumstances where there are compelling reasons to do so. The doctrine of stare decisis should generally be adhered to, the same should not be interpreted in sucha manner so as to hinder the development of law and the correction of erroneous decisions.
[1]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
[2]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
[3]The Constitution Of India
