4/14/2018 JTRI

STARE DECISIS AND SUPREME COURT

- By A.K. Awasthi
Additional District
Judge,
Barabanki
Stare decisis and Art. 141, Constitutin of India
The principle of stare decisis is embedded in latin Maxim ‘stare
decisis et non quieta movere’, firmly entrenched in British system of
doctrine of binding proceedent and embodied in Article 141 of the
Consitution of India, in short ‘Constitutin’ if provides that the law
declared by Supreme Court shall be binding on all courts within the
territory of India. The expressions ‘binding’ and ‘on all courts’ catch our
eyes. It is to be discerned as to what is binding and determined whether
the Supreme Court is bound by its own decisions.
Meaning of Stare decisis
‘Stare decisis’ means ‘to stand by decided cases’. Wh have
hierarchy of courts. The Supreme Court is at the top of pyramid. It
decides cases with a seal of finality. The decision is an authority for what
it actually decides. What is of essence in a decision is it ratio, and not
every observation found therein,l nor what logically flows from the
various observations made in the judgment. The enunciation of the reason
or principle on which a question before a court has been decided is alone
binding as a precedent1.
Law declared binding
It is ‘aw declared’ that is binding. The decision not express, nor
founded on reasons, nor proceeding on consideration of the issue cannot
be deemed as ‘law declared’2.
Lis
It is basal to common law doctrine of binding precedent that there
should be a lis for adjudication before the Court, a set of material facts
and the Judge has to apply the reasoning to justify decision after putting
the facts in a legal pigeon-hold. Indeterminacy of precedent authority
must not sway away the mind of a Judge. A case is an authority for what
it decides. A decision cannot be relied upon in support of a proposition
that it did not decide3.
Res Judicata and Ratio decidendi
A decision on a matter in issue alone is res judicata; the reason for
the decision is not res judicata. It may resolve a controversy inter partes
and may also formulate enunciation of law. The former is res judicata,
while the latter is the reason for decision i.e., ratio decidendi4.
Ratio decidendi and Obiter dicta
It is ratio decidendi that is binding, and not casual remarks,
something said by the way, statements on hypothetical fact-situations, or
problems, which are passed for as obiter dicta. The obiter dicta is the
incidental question which may arise, indirectlly connected with the main
questions, for consideration. Normally even an obiter dictum of Supreme
Court is expected to be obeyed and followed5. The observations on unreal
questions decided in personam are not binding as precedent6.
Ratio binds, not rationes
It is easy to define A ratio decidendi, but difficult to determine it.
Obiter is easy to show, and ratio difficult to demonstrate. There may be
indeterminacy of decision or wilderness of single instances. There are
large prescriptions of case law defying space which can wrap the whole
orb several times all over. There is an esoteric quality about the type of
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reasoning required for unraveling of cases. It is ratio that is binding, not

rationes.
Dismissal in limine
The dismissal of a case in limine is not res judicate7 nor a
assumption or a point not deliberated upon8.
Statute and judgments, if at par
There is difference between enacted laws and declared laws. One
represents vox poppuli, other aequitas. Words of a statute are living
flames, tongues of dynamic fire potent to mould the future as well as
guide the present9. The Judge takes living facts in his stride and evolves
law by use of judicial methos where there is non. Interpretation puts gloss
over words in their contextual colour. It puts flesh on dry bones of law
and, thus, provides for non liquet fact situation.
Judges interpret statutes, not judgments
Judgments, even of summit court, are not scriptural absolutes but
relative reasoning10. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with the fact
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, torn 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. 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.
Sub silentio
The decisions ‘sub silentio’ and ‘per incuriam’ are not binding.
Sub silentio decisions flow when the particular point of law
involved in the decision is not perceived by the court of present to its
mind. A point not argued or considered by court is said to pass sub
silentio.
Per incuriam
‘Inciroa’ 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 vs. Bristol Aeroplane Co. Ltd.11, 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 the Apex Court while
interpreting Article 141 of the Constitution which embodies the doctrine
of precedents as a matter of law. The above position was highlighted in
State of U.P. vs. Synthetics and Chemicals Ltd. (supra). To perpetuate an
error is no heroism. To rectify it is the compulsion of the judicial
conscience12.
“A decision does not lose its authority merely because it was badly
argued, inadequately considered and fallaciously reasoned.13”
Confilicting decisions of the Supreme Court
The conflicting decisions of the Supreme Court is another grey
area. Where there is a conflict between the decisions of two benches of
different strength, the decision of larger bench would prevail14.
Intransigent disccord between the decisions of the apex court of the
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country having equal binding force leads to an embarrassing situation.

The question arises which of the conflicting decisions should be
followed? A Full Bench of Allahabad High Court in Ganga Saran vs.
Civil Judge, Hapur15, answered the question thus:
“………. The courts must follow the judgment which appear to
them to state the law accurately and elaborately.”
Circumstances destroying precedent
There may be circumstances destroying or weakening the binding
force of precedent. There can be legislative nullification of judicial
decision, as was done by Muslim Women (Protection of Rights on
Divorce) Act, 1986 by which the ratio in Mohd. Ahmad Khan vs. Shah
Bano Begum16, was abrogated. Affirmation of reversal on different
ground or a judgment rendered in ignorance of statute may also render it
otiose. Even though per incuriam rule does not apply to apex court
decisions, in case of conflict between co-ordinate benches of the Supreme
Court, the decision subsequent in time shall prevail.
Finality of decisions
This adverts us to the finality of a judgment passed by the
Supreme Court. In Sajjan Singh vs. State of Rajasthan17, held that the
doctrine of stare decisis may not strictly apply and no one can dispute the
possition that the said doctrine should not be permitted to perpetuate
erroneous decisions pronounced by the Apex Court to the detriment of
general welfare. Earlier also, the view taken was that the Supreme Court
is not bound by its own decisions and may overrule its previous
decisions18. The overruling may be either by express exposition or by not
following them in a subsequent case19.
Interest reipublicae ut sit finis litium
A final judgment passed by Supreme Court cannot be assailed in
an application under Article 32 of the Constitution of India. The Superior
Courts of Justice do not fall within the ambit of State or other authorities
under Article 12. However, the Supreme Court to prevent abuse of its
process and to cure a gross miscarriage of justice may re-consider its
judgments in exercise of its inherent powers. The principle of finality is
insisted upon not on the ground that a judgment given by the apex court is
impeccable, but on the maxim Interest reipublicae ut sit finis litium, it
concerns the State that there be an end of law suit. Article 137 confers the
power to review its own judgments. It can re-open the final seal of
decisions ex debito justitiae. It is now time that proceedural justice system
should give way to the conceptual justice system and efforts of the law
courts ought to be so directed20. The curative petitions can be entertained
to achieve this purpose.
Theory of logical plenitude of law
A critic may say that a subordinate Judge is not bound to worship
the golden idols of the past if they have feet of clay, but while a Judge
may not revere, he is bound to follow such precedents as are binding upon
him. Distinguish or follow is the pearl of wisdom. A Judge may not refuse
to decide a case on the ground that law is silent or obscure. The theory of
logical plenitude of law impels him to invent a rule where there is none.
Since the Supreme Court is the Court of last speak, its enunciations of law
are binding leaving aside ultra vires enunciations known as obiter21.
Wise to revise
The twin attributes of a judge are consistency and predicability.
Clinging to consistency is no virtue at the costs of denial or sacrilege of
justice. Where justice is amiss, it is no folly to be wise to correct, review
and revise. To err is human, so do judges. An infallible judge is yet to be

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born, as is epigrammatically said. It is always better to be right and stand

corrected than be consistently and persisteently wrong. Perpetuating an
error is no heroism. Who knows this better than a judge, be it of a
subordinate court or summit court.

1 State of Orissa and others vs. Mohd. Hiyas, AIR 2006 DV 258
2 Per Sahai, J., in State of U.P., and another vs. Synthetics and Chemicals
Ltd. And another, (1991) 4 SCC 139
3 Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise,
Meerut, (1997) 1 SCC 203
4 Mathura Prasad Sarjoo Jaiswal vs. Dossibai N.B. Jeejeebhoy, AIR 1971
SC 2355
5 As held in Sarwan Singh Lamba and ors. Vs. Union of India and ors.,
AIR 1955 SC 1729
6 Dadu Dayalu Mahasabha, Jaipur (Trust) vs Mahaant Ram Niwas and
another, AIR 2008 SC 2187
7 Supreme Court Employees Welfare Association vs. Union of India and
others, AIR 1990 SC 334
8 Arnit Das vs. State of Bihar, AIR 2000 SC 2264
9 State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75
10 Bharat Petroleum Corporation Ltd. And another v. N.R.Vairamani and
Another, AIR 2004 SC 4778
11 [(1944 (2) All ER 293
12 Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 and Mayuram
Subramanian Srinivasan vs. CBI, (2006)3 SCC (Cri) 83
13 Salmond: Jurisprudence’ P.215(11th edition), quoted in Ambika Prasad
Misra vs. State of U.P. (1980 RD 227) by Krishna Iyer, J.
14 Mattulal vs. Radhe Lal, AIR 1974 SC 1956, Union of India and
another vs. K.S. Subramanian, AIR 1976 SC 2433, and Commissioner of
Income Tax, Bihar vs. Trilok Nath Mehrotra and others, (1998) 2 SCC
289
15 AIR 1991 All. 114(F.B.)]
16 [(1985)3 SCR 844
17 AIR 1965 SC 845
18 Dwarka Das Shrinivas vs. Sholapur Spg. Wvg. Co. Ltd., AIR 1954 SC
119
19 C.N.Rudramurthy vs. K. Barkathulla Khan, (1998)8 SCC 275
20 Rupa Ashok Hurra vs. Ashok Hurra and another, AIR 2002 SC 1771
21 See also, Saiyada Mossarrat vs. Hindustan Steel Ltd., Bhilai Steel
Plant, AIR 1989 SC 406; Municipal Corpn. of Delhi vs. Gurnam Kaur
(1989)1 SCC 101 and A.R.Antulay vs. R.S.Nayak, AIR 1988 SC 1531,
wherein held that well considered obiter of the apex court are binding

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