NEW LAW COLLEGE

● SUBJECT
LEGAL LANGUAGE
● TOPIC:
o JUDICIAL PRECEDENT- A PERSPECTIVE-
INDIAN JUDICIARY

NAME: KIRTI DUBEY

ROLL NO: 208
DIVISION: C
 India: Judicial Precedents in India

Precedent is a noun meaning an official action or decision that has happened in the past and that is considered
as an example or rule to follow in the same situation later. "A judge must interpret statutes as written. And a
judge must interpret the Constitution as written, informed by history and tradition and precedent." – Brett
Kavanaugh, Associate Justice of Supreme Court of India.

Judicial precedent has been defined in various ways as under:

● According to Gray, "Precedent covers everything said or done, which furnishes a rule for subsequent
practice."
● According to Salmond, "In a loose sense, it includes merely reported case law which may be cited and
followed by courts."

Every developed legal system consists of a judicial organ which adjudicates the rights and obligations of the
citizens of the nation. At initial stage, the courts were guided by customs and their own sense of justice. With
the advent of society, the legislation became the main source of law and judges decided cases according to it.
Even at this stage, the judges perform some creative functions. The judges to some extent depend on their sense
of right and wrong in matters of interpretation or in filling up any lacuna in the law made by the legislation. In
simple terms, a judicial precedent is a judgment of a court of law in India which is cited as an authority to
decide a similar set of facts and which can be used by the courts as a source for future decision making. In
general judicial sense, it means the guidance or authority of past decisions for future cases. Only such decisions
as lay down some new rule or principle are called judicial precedents.

Historical aspects of the judicial precedents in India:

In the ancient society, there were less disputes and there were very few occasions to go to courts. Local courts
like shashan, kula, shreni and puga were existing at that time, who decided the cases falling within their
jurisdictions. Due to lack of adequate sources to keep the record, doctrine of precedent was not properly
developed. In the medieval times also there was less scope of precedents. In the absence of a well organized
judicial system, no doctrine of precedent developed in India as it developed in England. In the British rule, the
present theory of precedent started developing. The Government of India Act, 1935, explicitly mentioned that
the decision of Federal Courts and Privy Council will be binding on all the other courts decision in British
India. Hence, from 18th century till date precedent is a characteristic feature of our legal system.

While statutes and enactments of the legislature lay down the general rules to be applied in the adjudication of
disputes, the final authority for interpretation of those rules are the courts. The doctrine of precedents makes the
decisions of courts, usually binding on the subordinate courts in cases in which similar or identical question of
law raised before the court. One of the great values of the doctrine of precedents is that it provides certainty. On
the other hand, major disadvantage is that precedents are considered to be binding in nature; it may hinder the
development of law which is necessary with changes in society. The court has to keep the balance between the
need of certainty and continuity and the desirability of growth and development of law.

With the advancement of law, the doctrine of precedent has become an integral part of the judicial discipline.
The doctrine of precedent is a cardinal principle of the hierarchical nature of the judicial system. When a
decision is rendered by a forum of superior or concurrent jurisdiction while adjudicating the rights of the parties
to a lis embodying a declaration of law, it operates till such time that it is unsettled as a binding principle for
future cases, such feature leads to the development of jurisprudence. A judgment as precedent carries the
weight of what it actually decides and not matters on the periphery.
A precedent is a judicial decision containing principle, which forms an authoritative element termed as ratio
decidendi. The Court should restraint in dissenting or overruling for the sake of stability and uniformity but
rigidity beyond reasonable limits becomes inimical to the growth of law. Article 141 of the Constitution of
India stipulates that the law declared by the Supreme Court shall be binding on all courts within the territory of
India. The doctrine of precedent is a principle of following previous decisions of the Court within its
well-defined limits. It significantly declares that cases must be decided in same way when the material facts are
the same as it becomes “ratio decidendi”, in contradistinction to a binding precedent, the Court has to be careful
about the “obiter dictum” made by the Court in the judgment as certain obiter dictum have persuasive value but
they do not have any binding force. “Obiter dictum” is a mere saying by the way, a chance remark, which is not
binding on the future courts, though it may be respected according to the reputation of the Judge, the eminence
of the Court and the circumstances in which it came to be pronounced. The reason for not regarding an “obiter
dictum” as binding as it was probably made without a full consideration of all the consequences that may
follow; or the Court might not have expressed a concluded opinion.
An interim order does not finally and conclusively decide an issue, such order cannot be a precedent. The
reasons normally assigned in support of such non-final interim order may only contain prima facie findings, are
only tentative. The interim directions issued on the basis of such prima facie findings are temporary
arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not
become either infructuous or a fait accompli before the final hearing. Thus, the interim order passed by a court
is not a precedent for other cases.
Thus it is always crucial to read the judgment in entirety to understand the principle of law and ratio decidendi
that has been laid down, considering the questions that arose for consideration in the case. Observations made
in one paragraph of the judgment cannot be considered as law laid down in the judgment when no reasons
given in other paragraphs for the same. The ratio of a judgment has a precedential value and it becomes
obligatory on the part of the Court to cogitate on the judgment to the facts exposited therein and the context in
which the questions had arisen and the law has been declared. The judgments of the Court are not to be read as
statutory instruments and its ratio has to be culled out, keeping in view the facts and circumstances involved in
a particular case.
As the doctrine of precedent is an essential part of Indian legal system, knowing how it works is also
undeniably important.

The operation of the doctrine of precedent is based on Stare Decisis which is a Latin term meaning that stands
by the previous decision. The doctrine of precedent refers that the legal decisions made by judges in higher
courts remain as a precedent, so the decisions made by lower or equal courts in future are needed to be
followed by the earlier decision made in the higher courts. It is believed that the doctrine of precedent brings
certainty to the legal system.

In each case, judges are to provide judgments upon their decisions. This judgment has to provide two types of
states which are the Ratio dicidendi and the Obiter dicta.

The ratio dicidendi means the reason for the decision. It literally means the main reason why judge has come
to the decision. It would be the rule of law that governs the decision and, it is a general statement that does not
involve particular details in each case. It is set for the precedent to apply in the future case decision. As an
example of the ratio, in the case Donoghue v. Stevenson (1932), a client became ill after drinking spoiled ginger
beer which was a dead snail in and sued the manufacturer, the ratio decidendi is to be the part that read ‘a
person owes a duty of care to those who he can reasonably foresee will be affected by his actions. The ratio of
Donoghue v. Stevenson (1932) subsequently brought major development to the law of negligence.

The statements outside the ratio dicidendi are called the Obiter Dicta. As its meaning, the Obiter Dicta does not
state the primary reasoning of the decision, therefore it is not binding for the future decisions. Although it is not
a part of the precedent, some of the Obiter Dicta can be referred in the future case to make certain view to the
law more persuasive. In the case of Carlill v Carbolic Smoke Ball Co Ltd (1892), the obiter dicta would be ‘If I
advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be
paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit
down and write me a note saying that they have accepted my proposal? Why, of course, they at once look [for]
the dog, and as soon as they find the dog they have performed the condition.’. The judge added this part to
assist his view on the decision.

There are three different types of precedent.

The original precedent is referred to the initial, new precedent to be set as there is no previous decision the
judge to follow until that point of time. It means that there will be new set of the ratio decidendi to follow in the
similar future cases. Normally, as there was no earlier decision to follow, the judge would give the reason by
analogy. However, judges would try to look for the nearest cases to consult. As an example of an original
precedent, there is a famous case Donoghue v. Stevenson (1932) which brought major development on
negligence law. Although there was a concept of a duty of care within particular circumstances, generally
between contractors, this case widened its application and the point of law as Lord Atkins made the precedent
as known as the neighbor principle.

The binding precedent refers where the present case has to follow the previous decision when there is a
sufficient similarity of the facts in the later case and the previous decision was from the higher positioned court
or the court in the same level. In other words, the inferior court is bound to follow the superior courts’ decision
when dealing with similar case. The persuasive precedent is more flexible on its sources. Although it is not
binding to the court hierarchy, judges are able to use precedent if they find it necessary for the case or sufficient
reasoning. Not only it is opened to use the obiter dicta, it is also opened to the precedents made by lower courts.
This was illustrated in the case of R v Gotts (1992), the court of Appeal followed the obiter dicta of R V Howe
(1987) case as a persuasive precedent on deciding the non-availability of duress as to a charge of attempted
murder. In addition, a dissenting judgment which means a judgment of disapproval of the majority and the
decisions made in other countries can also be used as persuasive precedent. This can be founded in the case of
McLoughin v O’Brian (1983) which was about nervous shock in negligence.

The persuasive precedent can be from treaties, decisions from the privy council and even law review articles
within the right extent of reputation of the author and the relevance to the case.

The main point of operating the doctrine of precedent is that the fact that every court is bound within its
hierarchy. As the Supreme Court is being on the top of the hierarchy, all the High Courts and remaining courts
that lay in the lower hierarchy need to follow the precedents from the Apex Court.

Position under Indian Constitution:

Article 141 of the Indian Constitution provides that, "The law declared by the Supreme Court shall be binding
on all courts within the territory of India." In Article 141 the expression "all courts" has been used which
creates question that whether Supreme Court comes under the sphere of all courts. That is to say whether
Supreme Court is bound by its own decisions or not. The most important instance of the rule that Supreme
Court is not bound by its own decisions is furnished by the case of Kesavananda Bharti Vs State of Kerala. In a
number of other cases Supreme Court has cleared the mind on this point.

Judgments which do not have binding effect under Article 141 of the Indian

Constitution: Judgments which include the following are not considered as a precedent:

● The judgment that is not expressed.

● The judgment not founded on reasons.
● An Obiter Dicta of a case is not binding as it has a persuasive value.
● Judgments made on Per Incuriam cannot be used as precedent. Literal meaning of per incuriam is
resulting from ignorance.
● Judgments where point of law or particular question of law was not consciously determined are also not
binding.
● Court's observations on the facts of the case are not binding.

General Principles of Precedents:

The High Courts in India are bound by the law declared by the Supreme Court. Decisions of the Supreme Court
are binding only so long as they have not been overruled by the Supreme Court. The decisions of a High Court
are binding on all the courts below it within its jurisdiction. The judgment of a particular High Court, is not
binding on other High Courts. The High Courts are the courts of co-ordinate jurisdiction. Therefore, the
decision of one High Court is only of persuasive value for other High Courts. In High Courts generally appeals
are heard by a Single Judge, some appeals such as murder, specials appeals etc. are heard by two judges.
Different High Courts have their different rules in this respect. When an appeal involves some important and
complicated point of law, it is referred to a Larger Bench. A Bench of two judges is called the Division Bench.
Three or more judges constitute a Full Bench. The decisions of a larger bench are binding on a smaller bench.
A bench is not bound by the decisions of another bench of equal authority.

Supreme Court on Judicial Precedents:

In Union of India Vs. Raghubir Singh (AIR 1989 SC 1933) it has been held that, "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 daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in
the decisions of a court." In the case of Commissioner of Income Tax Vs. M/s Sun Engineering Works Private
Limited (AIR 1993, SC 43), the Hon'ble Apex Court held that, "While applying the decision to a latter cases,
the court must carefully try to ascertain the true principle laid down by the decision of Supreme Court and not
to pick out words or sentences from the judgments divorced from the context of question under consideration
by the court to support their reasoning." Any interim order passed even by Supreme Court is limited to that
particular case and should not to be used as precedent for others cases specifically when the Supreme Court
itself has earlier authoritatively decided the question which is squarely involved in the latter case. The Hon'ble
Apex Court in Megh Singh Vs. State of Punjab ( AIR 2003 SC 3184) has held that, "Circumstantial flexibility,
one additional or different fact may make a world of difference between conclusion in two cases or between
two accused in the same case. Each case depends on its own facts and a close similarity between one case and
another is not enough because a single significant detail may alter the entire aspect." In Suganthi Suresh Kumar
Vs. Jagdeeshan (2002)2 SCC 420 Supreme Court observed that, "It is impermissible for a High Court to over
rule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without
considering any other point. High Court cannot question the correctness of the decision of the Supreme Court
even though the point sought before the High Court."

Merits of Judicial Precedents:

● Consistency and predictability:

Because of the presence of judicial precedents, the lawyers become able to assist their clients regarding specific
subject matter after observing the precedents prevalent in such field. It provides guarantee that every case will
be treated and decided in a manner that is similar to pass decisions. There is an element of consistency and
predictability that everyone can rely upon it.

● Flexibility: Precedents bring flexibility in the legal system. The Supreme Court of India is not
bound by its own decisions. The rules settled by the Supreme Court in a particular subject matter
remain in force unless they have not been overruled by the Supreme Court. This system creates a
series of checks and balances in the judiciary. Judges may not write the laws, but it is their job to
interpret the law as accurately as possible in every situation. They mold the law according to the
changed conditions and thus bring flexibility to the law.

● Save time of the courts:

Judicial precedents provide great convenience as it reduces the labor of judges and lawyers. Once the question
regarding some specific matter is resolved then it is not required to re-argue the same question in the future
similar cases. That means judges can spend less time in deliberation because they already have access to the
decision making processes of others. This advantage can even reduce the crime rate to some extent as it throws
light on the consequences for the wrong committed against the state.

● Prevent mistakes:

Precedents guide judges and consequently, they are prevented from committing errors which they would have
committed in the absence of precedents. There is lesser chance of mistakes when everyone stays on the same
page. By deciding cases on established principles, the confidence of the people on the judiciary is strengthened.

Demerits of precedents:
 ● Complexity:

There are so many case laws thus it creates complexity. Every judge issues his own perspective on matter to
create more precedents. Judgments are exceptionally long, and it becomes burden for the lawyers and judges
working on the similar matter to determine that what is applicable or not. It becomes tedious task to find out
relevant case law on particular matter.

● Possibility of overlooking of authorities:

The vastly increasing number of cases has an overwhelming effect on the judges and the lawyers, thus there is
possibility of overlooking of authorities. It becomes difficult to trace out the wide range of authorities on the
very point. Sometimes, the conflicting decisions of superior courts put the judges of lower courts into a
dilemma.

● Rigidity:

The practice of precedents brings rigidity in the system because the lower courts are bound by decisions of
higher courts. The society is not static and there are changes in social, economic, and other circumstances with
time. Changed circumstances may require a different interpretation of law. In fact binding precedents can hinder
the development of law. As mentioned above, every court is bound to its upper, sometimes equal courts.
However, there are some situations that judges do not have to follow the previous decisions. Judges can be
avoiding ruling in several ways. A judge might be able to distinguish the enough material differences in facts
between the earlier case and the current case upon him so the judge can avoid following the previous decision.
For instance, if there were a dead snail in a transparent bottle to see that there was something in the drink in a
present case while the color of the bottle was dark so that the client could not notice that there was a dead snail,
a judge would be able to not take the past precedent on deciding. It was illustrated in cases Balfour v Balfour
(1919) and Merritt v Merritt (1990). In the both of cases, a wife sued her husband for breach of the contract.
The latter case recognized the legal contract between a wife and a husband because it was in writing, whereas it
did not in the earlier case as there was less material evidence to prove the legality in the agreement.

Reversing occurs when a higher court in hierarchy deny the decision of a lower court on an appeal with the
same case. If a judgment made by an inferior court was founded to be incorrect and wrong, a superior court will
overturn the decision in an appeal.

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”.

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 previous decision, in
the context of the question involved in that case from which the decision takes its colour.

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.

Judicial Pronouncements on judicial precedents:

“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 ]

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 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. 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 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.

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 (K.T.M.T.M. Abdul Kayoom v. CIT, 1962 Supp (1) SCR 518)
Different courts sometimes pass different interim orders as the courts deem fit. It is a matter of common
knowledge that the interim orders passed by particular courts on certain considerations are not precedents for
other cases which may be on similar facts (Empire Industries Ltd. v. Union of India, (1985) 3 SCC 314)

A decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every
observation found therein nor what logically follows from the various observations made in it. It is not a
profitable task to extract a sentence, here and there from a judgment and to build upon it(State of Orissa v.
Sudhansu Sekhar Misra, (1968) 2 SCR 154)

In the matters of interlocutory orders, principle of binding precedent will not apply. However, the need for
consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the
desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters
should receive similar treatment except where factual differences require a different treatment so that there is
assurance of consistency, uniformity, predictability and certainty of judicial approach(Vishnu Traders v. State of
Haryana, 1995 Supp (1) SCC 461)

It is necessary to follow the law declared by the Supreme Court and a judgment of the Court has to be read in
context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter
dictum” as distinguished from a “ratio decidendi” is an observation by the 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 an effect
of a binding precedent but it cannot be denied that it is of considerable weight (Director of Settlements v. M.R.
Apparao, (2002) 4 SCC 638)

The High Courts have no power, like the power available to the Supreme Court under Article 142 of the
Constitution of India, and merely because the Supreme Court granted certain reliefs in exercise of its power
under Article 142 of the Constitution of India, similar orders could not be issued by the High Courts ( State of
Punjab v. Surinder Kumar, (1992) 1 SCC 489 : 1991 Supp (3) SCR 553)

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 neither to be read as
Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations
must be read in the context in which they appear to have been stated. 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(Union of India v. Bahadur Singh, (2006) 1 SCC 368)

The judgments of the High Court would bind the trial courts. If an unnecessary reference to a judicial precedent
or erroneous submission in law is made, the Judge considering the matter would reject the reliance thereon or
the submission made. However, certainly reference to a judicial precedent cannot be termed a contumacious
act(Court on its Own Motion v. Jayant Kashmiri, 2017 SCC OnLine Del 7387).

Exposition of law and ratio decidendi, to be accepted as a binding precedent, should be based on issues raised
and argued by both sides. A mere observation without reasons is distinguishable, from a ratio decidendi(Union
of India v. P. Shyamala, 2017 SCC OnLine Mad 6715). 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 (State of Haryana v. AGM Management Services Ltd., (2006) 5 SCC 520)

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.

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:

I. 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.

Observations on Judicial Precedents: The doctrine of precedent as recognized under the constitution is an
instrument of certainty, creativity, and predictability of Judicial interpretation of the statue, but while overruling
its own decisions the courts need to be more cautious.
● That the High Court acts as an intermediary between Supreme court and the subordinate courts
needs to be more careful that their decisions must be in accordance with the decisions of the
Supreme Court and should act with utmost care that their decisions should not be reversed in the
Supreme Court as it affects lot many cases decided in the lower court relying on the decisions of
the High Court.
● The High Court must not take a different view from the view taken by their counterparts in other
states, this persuasive value attached to the precedents needs to be minimized bypassing decisions
 at High Court taken into account passed by the other High Courts.
● Minimum accountability should be fixed on the Judges and advocates of the lower court and
subordinate court who failed to bring out to the notice of the court or who passes the order in
ignorance of the law laid down by the Supreme Court of India.
● While deciding cases, reportable judgment, the Supreme Court should also specifically write the
ratio of the cases.
● The very recognition of the principles of the sub-silento and per-incuriam gives liberty to the
superior courts to pass the orders carelessly, the recognition of these principles must be challenged
by the supreme court itself.
● While differentiating with the earlier decision, the Court must not partially overrule a judgment
but must decide on all the aspects a fresh one, this will result in completely overruling the
judgment and there will be no place for any confusion. No partial overruling should be done.
● Taking into account the decisions of the international courts while developing principles of
jurisprudence in the country is good for the continuous growth of the judiciary but this should be
done in a predetermined manner. The authority attached to the decisions of international forums
and Courts should be declared in advance.
● The law laid down under Article 141 of the Constitution is no less important than the law laid
down by the parliament that should be scrupulously observed by the executive wing of the state.
Thus, I would like to conclude with the words of Chandrachud. C.J. said in Deena v. Union of
India “Any case, even a locus classicus, is an authority for what it decides. It is permissible to
extend the ratio of a decision to cases involving identical situations, factual and legal, but care
must be taken to see that this is not done, mechanically, that is, without a close examination of the
rationale of the decision cited by the precedent”.

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.