Article 141 of the Constitution
Introduction
According to Sir John Salmond, ”A precedent is said to be a judicial decision which contains its principles. The stated principle which thus forms its authoritative element is called the ratio decidendi. The concrete decision is thus binding between the parties, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.”
The appellate system which has been structured on the common law pattern of the hierarchy of competent courts, the doctrine of precedents can be considered as a vigilant omnipresence. The relevance of precedent as a guide to judicial decision making remains as undisputed in the present day as it was more than a hundred and forty years ago when Lord Campbell called attention to the importance of the binding effect of the ratio decided in A.G. v. Dean.
It is inconceivable that judges will express their mind on the question of law otherwise than through a reasoned articulation which bears upon prior case law contained in the decisions of their predecessors. In India, as in any legal system with its roots in common law, stare decisis epitomizes a legal ideology that expresses a fighting faith in the assertion that the law should be founded on such values as continuity, and certainty, Underlying the stare decisis rationale is the pervasive, albeit uncritical, assumption that the judicial process is concerned with an articulate and accurate enunciation of pre-existing law as opposed to the more arbitrary and inherently non-judicial process of legislative law-making.
Judges who are brought up in the tradition of English common law rationalize their decisions in terms of ratio decidendi of past cases. As a matter of legal theory, though not strictly as a matter of judicial practice, they are bound by prior decisions of controlling authority.
Some works on the Supreme Court and judges of the Supreme Court advertised that the Indian Supreme Court is lacking ‘unprecedented consciousness’. It is said that there have been activist judges in the court who have often enough refused to take note of the relevant precedent. Even the non-so-activist judges, it is said, have ignored precedents that could have been appropriately noticed and distinguished. There have been instances of judges who on careful reconsideration have disassociated themselves from their own earlier pronouncements.
In accordance with Article 141 of the Constitution, the Supreme Court of India is enjoined to declare the procedural law as well as the substantive law. The term ‘declared’ is said to be wider than the term ‘made’ or ‘found’ for that matter. It has been specified that to declare means to announce a particular opinion. Indeed, the term “made” involves a process, while the term “declare” expresses a result. The law declared by the Supreme Court is the law of the land. It is a precedent for itself and for all courts/authorities in India.
To deny this power to the Supreme Court footing it only “finds” law but does not “make” it, is to make ineffective the powerful instrument of justice placed in the hands of the highest Judiciary. While the position of the Supreme Court is subordinate to the legislature, in declaring the law, creativity is involved. A statute is binding; but it is the statute, as interpreted by the Supreme Court that is binding on all the other courts. The Supreme Court is not a mere interpreter of the existing law. As a wing of the State, it is a source of law”.
In Mohd. Ahmed Khan v. Shah Bano Begum it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court, after finding out the important rights of Muslim divorced women who were not there properly in the original texts or any other material, upheld the same.
What is binding under Article 141
“What is binding is the ratio of the decision and not finding on facts, or the opinion of the Court on any question which was not required to be decided in a particular case. The law that will be binding under Article 141 would extend only to the observations on the points raised and decided by the Court in a case. Therefore, as a matter of practice, the court does not make any pronouncement, particularly in Constitutional matters, on the points not directly raised for its decision. The general principle of law laid down by the Supreme Court is applicable to every person including those who are not a party to that order.
In other words, it is the principle underlying a decision that is binding. While applying the decision in a later case, therefore, the later court should try to ascertain the true principle laid down by the provisos decision, in the context of the question involved in that case from which the decision takes its colour.
In this background, the following are some of the areas identified by the researcher to determine the scope of research and of the doctrine of precedents under the Constitutional framework of India.
“A decision is binding not because of its conclusion but in regard to its rationale and the principle laid down therein.” [J. J. Sharma Rao Vs Union territory of Pondicherry]
“In the hierarchical system of Courts. It is necessary for each lower-tier to accept loyally the decision of the higher tiers. It is inevitable in the hierarchical system of Courts that the decisions of the Supreme Appellate Tribunal do not attract the unanimous approval of the judiciary. But the system only works if someone is allowed to have the last word, which once spoken, is loyally accepted.”[Caspel Co, Ltd v. Broome ]
There are significant developments that happened during British India with regard to the theory of precedents in India. In India, the Doctrine of precedents has evolved for the necessary fulfilment of the goal of law i.e certainty, continuity, and stability.
“Guidelines and norms”- binding nature of precedents
In the case of Vishaka v. State of Rajasthan, the accused was alleged of the offence of the brutal gang rape of a social worker. The three-bench judge of the Supreme Court laid down relevant guidelines and norms as there was no enacted law related to effective enforcement of the basic human rights gender equality and also guarantee against sexual harassment. The court observed that norms and guidelines should be followed in workplaces in accordance with Article 141 of the Constitution. Further, the court has stated that the guidelines were declared under Article 141 of the Indian Constitution and were binding and enforceable in law, and suitable legislation accordingly occupied the field.
This particular judgment raises pertinent questions related to the absence of explicit provisions in the Constitution, and accordingly treaties the same legal status as that of the domestic legislation, and it is also open to the court to take the direct cognizance related to International conventions to which India is a party, but the main issue arises that Parliament has not yet enabled legislation and to invoke the aid of such conventions or treaties as a basis for a liberal interpretation of the fundamental rights provisions? It is also not clear as to what is the scope of power of the Supreme Court under Article 141 of the constitution read along with Article 32.
The Kerala State Backward Classes ( Reservation for Appointment for Posts in Services under the State) Act, 1955 which has retrospectively validated the law contained in the relevant statutory declaration that no creamy layer must exist in the state. This particular provision was accordingly held unconstitutional by the Supreme Court. In the case of Indira Sawhney v UOI, the court gave a decision for the exclusion of the creamy layer in classes from reservation benefits in accordance with Article 141 of the Indian Constitution. Hence, the apex court was justified in declaring the above mentioned Kerala act as unconstitutional.
In another case of H.P. v. Nurpur (P) Bus Operation Union, the provision to Section 4 of the Himachal Pradesh Passengers and Goods taxation Act, 1995 is unlawful in nature. However, if at all, doctrine of prospective overruling is applied, the proviso which has been directed that collections already made on the basis of such proviso shall not stand invalidated. When it was applied in the Supreme Court of India it was duly held that the directions given by the High Court were improper since the doctrine of Prospective overruling is only available to the Supreme Court not to the High Courts.
Shah Bano case
In the case of Mohd. Ahmed Khan v. Shah Bano Begum, it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court held after finding out what were the important rights of Muslim divorced women which were not there properly in the original texts or any other material. Such an interpretation of religious texts by an earlier Constitutional Bench done by the apex court was held to be binding in Danial Latifi v. Union of India.
Further, it was not open to the court for re-examining the position any longer because already a Constitution of the Supreme Court had accordingly declared the law after considering the Suras 241-242 of Chapter II of the holy book of Quran and also the other relevant material available. Moreover, the court even elaborated on the fact that the Muslim Women ( Protection of Rights and Divorce) Act, 1986 which actually codifies the law as stated in the Shah Bano’s case. The fundamental purpose of the act is to allow the Muslim husband so that he can retain his freedom of avoiding payment for maintenance to his erstwhile wife after the divorce and also after the period of iddat.
The apex’s court decision in cases of Shah Bano case and Danail Latifi case upholds the importance of precedent as well as the law which has been declared by the Supreme Court by way of interpretation of the religious texts, especially when there are several interpretations available in order to explain the meaning of the texts.
Binding on Tribunals
The apex court had even insisted that the tribunals also must follow the doctrine of precedent. Moreover, a tribunal is also bound by law which is laid down by the High Court and the Supreme Court.
Judicial power
The apex court in the case of Paramjit Kaur v. The State of Punjab went a step forward in order to expand the powers laid down under Article 141 of the Constitution. In order to enquire about the extrajudicial killings in the State of Punjab, the Supreme Court issued direction to the National Human Rights Commission.
Therefore, the jurisdiction of such a Commission came into question in reference to the statutory limitations and obligations of the respective Commission. The apex court accordingly held that by its orders and directions it can confer jurisdiction on a particular body beyond the purview of the Jurisdiction.
Binding nature of directions and Res Judicata
The Supreme Court’s decision which is neither without Jurisdiction nor against the principles of natural justice or any relevant provisions under the constitution of India is bound to become a binding decision and hence operates as Res Judicata. Moreover, such a decision is also not open to the Supreme Court in accordance with Article 143 of the Constitution as it would be impractical and would lead to appeal over its own decisions. Such a decision can be reviewed only under Article 137 of the constitution which is to be read with Order 401 of Supreme Court Rules, 1966].
Further, in the case of Director of Settlements, A.P. v. M.R. Appanrao wherein the apex court affirmed the decision stated in Shenoy & Co. case and accordingly stated merely because of the principles of Res Judicata has not been considered in any particular case, still, it could be relevant ground for reconsideration of the Judgement by the larger bench of the Supreme Court.
Reporting a particular case as a precedent
The courts over the years have been stating that if at all the Supreme Court had a decision in which it did not declare any principles of law, but had given the directions for the communication in special circumstances, the High court which is subordinate should find the ratio decision given by the apex court and also ascertain the law so declared from a careful reading of the decision before it tends to apply in other cases.
If at all, the High Court is exercising statutory power under the criminal law it could not assume itself the powers and jurisdiction to exercise the function of the Supreme Court. In terms of reporting a case as though it may be constituted as a precedent, for further guidance, it is not proper on the part of Editors of Law Reports.
Stare Decisis and Precedents
The apex court in the catena of cases stated that “ when a precedent is recognized for a long period of time it matures into a stare decisis. The Supreme Court explained “it is not everything stated by a Judge while pronouncing a judgment that constitutes a precedent, the only thing in the decision binding upon the lower courts or a party is a principle on which the case has been decided. Therefore for a reason, it is pertinent to analyze the decision and isolate it from the ratio decidendi. According to the well-settled principles of the law, there are three postulates that every basic decision can comprise. They are:
- Finding the proper material facts, whether direct or inferential. An inferential finding of a particular fact which a judge draws from perceptible or direct facts.
II.The statements of the relevant principles of law which are stated applicable to legal principles disclosed by the facts.
III. The judgment stated is generally a combined effect of the above-stated postulates.
Moreover, in the case of ICICI Bank v. Municipal Corporation of Greater Bombay stated that the decision given by the apex court must be read in accordance with the context of the statutory provisions which have been interpreted by the competent court. It has been stated that no judgment can be read if it’s a statue. Moreover, the law cannot afford to be always static in nature. Therefore, based on the relevant principles the Judges must apply intelligent techniques in order to use the precedents.
High Court cannot overrule the Supreme Court’s Decision
In case of Suganthi Suresh Kumar v. Jagdeesham, the apex court of the country duly stated that it is impermissible for the High Court to overrule the decision given by the Supreme Court merely on the ground that the decision stated by the Supreme Court laid down principles without considering any of the legal points.
Moreover, in the Pandurang Kalu Patil v. State of Maharashtra, the supreme court had even stated that the decisions of the High court will be binding until and unless the Supreme Court overrules them.
Important Judgements
In the case of Director of Settlements, A.P. v. M.R. Appanrao wherein the apex court affirmed the decision stated in Shenoy & Co. case and accordingly stated merely because of the principles of Res Judicata has not been considered in any particular case, still, it could be relevant ground for reconsideration of the Judgement by the larger bench of the Supreme Court.
In the case of ICICI Bank v. Municipal Corporation of Greater Bombay it was stated that the decision given by the apex court must be read in accordance with the context of the statutory provisions which have been interpreted by the competent court. It has been stated that no judgment can be read if it’s a statute. Moreover, the law cannot afford to be always static in nature. Therefore, based on the relevant principles the Judges must apply intelligent techniques in order to use the precedents.
Moreover, in the Pandurang Kalu Patil v. State of Maharashtra the supreme court had even stated that decisions of the High court will be binding until and unless the Supreme Court overrules them.
in the case of Paramjit Kaur v. The State of Punjab went a step forward in order to expand the powers laid down under Article 141 of the Constitution. In order to enquire about the extrajudicial killings in the State of Punjab, the Supreme Court issued direction to the National Human Rights Commission. Therefore, the jurisdiction of such a Commission came into question in reference to the statutory limitations and obligations of the respective Commission. It was duly held by the apex court that the Supreme Court referred to the matter when referred to the commission when made in exercise of the plentitude of its appropriate jurisdiction. The apex court accordingly held that by its orders and directions it can confer jurisdiction on a particular body beyond the purview of the Jurisdiction.
In Vishaka v. State of Rajasthan, the accused was alleged of the offence of brutal gang rape of a social worker. The three-bench judge of the Supreme Court laid down relevant guidelines and norms as there was no enacted law related to effective enforcement of the basic human rights gender equality and also guarantee against sexual harassment. The court observed that norms and guidelines should be followed in workplaces in accordance with Article 141 of the Constitution. Further, the court has stated that the guidelines were declared under Article 141 of the Indian Constitution and its binding and enforceable in law, and suitable legislation accordingly to occupy the field.
In Mohd. Ahmed Khan v. Shah Bano Begum, it was held that the Supreme Court’s interpretation of religious texts is a binding precedent. The apex court held after finding out what were the important rights of Muslim divorced women were not there properly in the original texts or any other material.
Conclusion
The doctrine of precedents as recognized under Article 141 of the Constitution of India is weakened in India as many decisions of the Supreme Court of India are overruled by the same court, by the larger bench or even the bench of equal strength, in some cases. Further, the decisions of a High Court which act as a binding precedent to all the subordinate courts within the same state in which the said High Court is designated.
The decisions of the High Courts in many cases have been reversed by the Supreme Court in appeal or in its extraordinary jurisdiction. The decision of one High Court is only persuasive in nature for the other High Courts that encourages the High Court to have different opinions on a similar situation or on the laws with part material.
Moreover, there is no mechanism that assures the strict adherence and compliance of the law as laid down by the Supreme Court under Article141. If the judge is to be bound by precedents he should have all the relevant authorities at his command. The ignorance of the subordinate Court has resulted in injustice to many poor litigants who do not afford to go in appeal.
The Backbone of Judiciary is already at stake due to the pendency of cases in India, more particularly on subordinate courts and decisions in ignortia ( per incuriam ) is adding to the woes of the poor litigant.
The plea of decision, sub-silento, and per-incuriam is used by the superior courts to avoid blame and liability in case of contradictory judgments by the courts of equal authority. Moreover, Overruling in part, and retaining in part is another confusing phenomenon wherein courts relook into law points decided in earlier judgment and differentiate its own decision.
The decisions of the international courts are taken into account while developing new and old principles of jurisprudence. The observations/directions issued by the Supreme Court in a Judgment are not the ‘law declared by the Supreme Court’ under Article 141 of the constitution of India, such directions are issued in exercise or powers under Article 142 of the Constitution. The recognition of the doctrine of precedents is essential for ensuring certainty, continuity, and predictability of the law of the land.
