A PROJECT REPORT ON:

“EXPLAIN THE CIRCUMSTANCES WHICH DESTROY THE BINDING FORCE

OF PRECEDENT”

SUBMITTED TO:

MRS. SHREEJAYA RAJKUMAR PATIL

(FACULTY FOR JURISPRUDENCE II)

SUBMITTED BY:

BHARAT CHAUDHRY
ROLL NO.-51
VITH SEMESTER

DATE OF SUBMISSION:
4TH APRIL, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

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 TABLE OF CONTENTS

S.NO TOPIC PAGE NO.

1. CERTIFICATE OF DECLARATION 3

2. ACKNOWLEDGMENTS 4

3. INTRODUCTION 5-6

4. OBJECTIVES 7

5. RESEARCH METHODOLOGY 7

6 IGNORANCE OF STATUTE 8-10

7. SUB SILENTIO 10-11

8. DISTINGUISHING AND OVERRULING 11-12

9. OTHER CIRCUMSTANCES WHICH WEAKEN THE BINDING FORCE OF PRECEDENT 13-14

10. CONCLUSION 15

11. BIBLIOGRAPHY 16

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 Certificate of Declaration

I hereby declare that the project work entitled “Explain the circumstances which destroy the
Binding force of Precedent” submitted to HNLU, Raipur, is an original work, which has been
done by me under the able guidance of Ms. Shreejaya Patil, Faculty Member, HNLU, Raipur.

Bharat Chaudhry

Roll No. 51

SEM-VI

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 Acknowledgements

At the very beginning, I would like to thank all those who were the ‘guiding lights’ behind this
project. First of all I would like to take this opportunity with esteem privilege to express my
heartfelt thanks and gratitude to my course teacher Ms. Shreejaya Patil, (Faculty for
Jurisprudence II, H.N.L.U.) for having faith in me in awarding me this very significant project
topic. Her consistent supervision, constant inspiration and invaluable guidance have been of
immense help in carrying out the project work with success.

Next, I would like to thank my colleagues for maintaining an academic atmosphere which helped
in creation of new ideas and lines of thought for the betterment of this project.

Subsequently I would like to thank my university for providing such an enriched Library, the
computer lab, internet facility without which this project would have been in a distant realm.

I extend my heartfelt thanks to my family and friends for their moral support and encouragement.
I also take this opportunity to thank all those people who contributed in their own small ways for
the completion of this project.

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 Chapter I

Introduction

Before we delve into the circumstances which weaken the authority of precedent, let us first take
a look at what exactly is meant by precedent.

In common law legal systems, a precedent or authority is a principle or rule established in a

previous legal case that is either binding on or persuasive for a court or other tribunal when
deciding subsequent cases with similar issues or facts. Common law legal systems place great
value on deciding cases according to consistent principled rules so that similar facts will yield
similar and predictable outcomes, and observance of precedent is the mechanism by which that
goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the
first time by a court for a particular type of case and thereafter referred to in deciding similar
cases."1

Stare decisis is a legal principle by which judges are obligated to respect the precedent
established by prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the
undisturbed." In a legal context, this is understood to mean that courts should generally abide by
precedent and not disturb settled matters. The principle of stare decisis can be divided into two
components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier
decision, is binding precedent that the court itself and all its inferior courts are obligated to
follow. The second is the principle that a court should not overturn its own precedent unless
there is a strong reason to do so and should be guided by principles from lateral and inferior
courts.2

It is Endeavour of any civilized society to be governed by rule of law and which necessarily
requires ‘Law”. Precedents have been recognized as one of the source of law. Judges make law is
now acknowledge concept. Important limb of “Rule of Law” is the even application of laws

1
Black's Law Dictionary, p. 1059 (5th ed. 1979).
2
Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004).

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and by following precedents this object of Rule of Law is also achieved. But the recent
Judgment in Anil kumar v/s M K Aiyappa has weakened the credibility of judicial
precedent by holding that magistrate cannot direct for registration of FIR against public servants
without sanction in view of bar contained in section 197 of I P C and section 19 of PC Act 1988
is against the judgment of state of Karanataka v/s P P Raju in which this issue was decided but
without considering the above judgment of co-equal bench give a irrational judgment which is
totally against the age old concept of judicial ethics, discipline and judicial propriety and this
judgment is sure to be reversed by supreme court in coming days. Such type of decisions lower
down the dignity of judicial precedent. In order to understand the increasing
weakening circumstance of judicial precedents in India it will be better to understand such
different circumstances in the succeeding chapters meaning and concept of judicial precedent
prevailing in the country.

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 Objectives

1) To understand the meaning of precedent.

2) To describe the circumstances when precedent lose their authority.

Research Methodology

This project work is descriptive & analytical in approach. It is largely based on the analysis of
the circumstances which destroy the Binding force of Precedent. Books & other references as
guided by faculty of Jurisprudence II were primarily helpful for the completion of this project.

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 Chapter II

Ignorance of Statute
A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of
statute i.e. delegated legislation. Such decisions are perincuriam and not binding. The mere fact
that the earlier court misconstrued a statute or ignored a rule of construction is no ground for
impugning the authority of precedent. It is clear law that a precedent loses its binding force if the
court that decided it overlooked an inconsistent decision of a higher court . Such decisions are
also per incuriam. A court is not bound by its own decision that is in conflict with one another. If
the new decision is in conflict with the old, it is given perincuriam and is not binding on later
courts. In these circumstances the rule is that where there are previous inconsistent decisions of
its own, the court is free to follow either i.e. earlier or later. To come within the category of per
incuriam it must be shown not only that the decision involved some manifest slip or error but
also that to leave the decision standing would be likely, inter alia, to produce serious
inconvenience in the administration of justice or significant injustice to citizens.

To come within the category of per incuriam it must be shown not only that the decision
involved some manifest slip or error but also that to leave the decision standing would be likely,
inter alia, to produce serious inconvenience in the administration of justice or significant
injustice to citizens.

Sibbia's case (supra). The decisions of this Court in Salauddin Abdulsamad Shaikh v. State of
Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another (1998) 9 SCC 348, Adri
Dharan Das v. State of West Bengal (2005) 4 SCC 303 and Sunita Devi v. State of Bihar and
Another (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench in
Sibbia's case (supra). He submitted that all these orders which 19 are contrary to the clear
legislative intention of law laid down in Sibbia's case (supra) are per incuriam. He also submitted
that in case the conflict between the two views is irreconcilable, the court is bound to follow the
judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength.
33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4
SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the
Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that

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the dictum in the judgment of the Constitution Bench has to be preferred over the subsequent
decisions

He also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3 SCC 677
and State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in case of
conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller
Bench. Mr. Jethmalani submitted that not only the decision in Sibbia's case (supra) must be
followed on account of the larger strength of the Bench that delivered it but the subsequent
decisions must be held to be per incuriam and hence not binding since they have not taken into
account the ratio of the judgment of the Constitution Bench. He further submitted that as perthe
doctrine of `per incuriam', any judgment which has been passed in ignorance of or without
considering a statutory provision or a binding precedent is not good law and the same ought to be
ignored. perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.
L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v.
State of Bihar and Anotherlaid down in para 42 by the Constitution Bench that the normal rule is
not to limit operation of the order of anticipatory bail, was not taken into account by the courts
passing the subsequent judgments. The observations made by the courts in the subsequent
judgments have been made in ignorance of and without considering the law laid down in para 42
which was binding on them. In these circumstances, the observations made in the subsequent
judgments to the effect that anticipatory bail should be for a limited period of time, must be
construed to be perincuriam and the decision of the Constitution Bench preferred. He further
submitted that the said issue came up for consideration before the Madras High Court reported in
Palanikumar and Another v. State 2007 (4) CTC 1 wherein after discussing all the judgments of
this court on the issue, the court held that the subsequent judgments were in conflict with the
decision of the Constitution Bench in Sibbia's case (supra) and in accordance with the law of
precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that
judgment has to be applicable.

In State of Bihar v. Kalika Kuer @ Kalika Singh and others AIR 2003 SC 2443 this Court held
that when an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction
considering the question later, on the ground that a possible aspect of the matter was not
considered or not raised before the Court or more aspects should have been gone into by the

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Court deciding the matter earlier but it would not be a reason to say that the decision was
rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct
yet it will have the binding effect on the latter bench of coordinate jurisdiction. The Court held
that easy course of saying that earlier decision was rendered per incuriam is not permissible and
the matter will have to be resolved only in two ways – either to follow the earlier decision or
refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not
correct on merits. In this respect reference may also be made.3

Chapter III

Sub Silentio

Precedents sub silentio or not argued: A decision passes sub silentio when the particular point of
law involved in decision is not perceived by the court or present to its mind. When a decision is
on point A upon which judgment is pronounced but there was another point B on which also
court ought to have pronounced before deciding he issue in favour of the party, but that was not
argued or considered by the Court. In such circumstances although point was logically involved
in the facts and although the case had a specific outcome, the point is said to pass sub silentio.[
Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A)]. It is rightly said that an hundred
precedent sub silentio are not material. Where a judgment is given without the losing parties
having been represented , there is no assurance that all the relevant consideration have been
brought to the notice of the court and consequently the decision oughtnot be regarded as absolute
authority even if it does not fall within sub silentio rule. A precedent is not destroyed merely
because it was badly argued, inadequately considered and fallaciously reasoned. Total absence of
argument vitiates the precedent. A decision is an authority only for what it actually decides and
not for what may logically or remotely follows from it. Decision on a question which has not
been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v.State of Haryana and
another, AIR 1990 SC 781: 1990(2) SCC 71: 1989 Supp. (1) SCR 510:1989(2) Scale 982
When observation of the court on a question about validity of a statutory provision which was
neither raised nor argued would not be a binding precedent. Rajpur Ruda Meha and others v.
State of Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677.5.

3
http://www.lawyersclubindia.com/articles/Doctrine-of-Judicial-Precedent-and-their-declining-credibility-
6077.asp#.VwIDItIrLIU

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Judgment it is for the Government to take a decision relating to the number of seats and not the
Committee constituted by the State Government. The further submission of the learned Counsel
for the petitioner is that only NCTE has got power to regulate the admission and not the
Government or its Committee. According to petitioner's Counsel the judgment of Allahabad
High Court in Writ Petition No. 36619 of 2004, Association of Professional Colleges and Ors. v.
State of Uttar Pradesh and Anr. and other connected petitions decided on 21.12.2004 is per-
incuriam to apex Court judgment and sub-silentio illegal.4

Chapter IV
Distinguishing and Overruling
a) Distinguishing - A binding precedent is a decided case which a court must follow. But
a previous case is only binding in a later case if the legal principle involved is the same
and the facts are similar. Distinguishing a case on its facts, or on the point of law
involved, is a device used by judges usually in order to avoid the consequences of an
earlier inconvenient decision which is, in strict practice, binding on them. If a Court
deems fit to follow a precedent of a superior court the proper course, in such a case, is to
try to find out and follow the opinions expressed by larger benches of Superior Court in
the manner in which it had done this. The proper course for a Court is to try to find out
and follow the opinions expressed by larger benches of superior Court in preference to
those expressed by smaller benches of the Court. If, however, the Court was of opinion
that the views expressed by larger benches of this Court were not applicable to the facts
of the instant case it should say so giving reasons supporting its point of view. Union of
India and another v. K.S. Subramanian, AIR 1976 SC 2433;1976(3) SCC 677. Even
Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds
itself unable to accept the earlier view, it shall be justified in deciding the matter in a
different way. Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC
623.

4
http://www.lawgratis.com/2016/02/19/judicial-precedents/

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 b) Overruling - A higher court can overrule a decision made in an earlier case by a lower
court eg. The Court of Appeal can overrule an earlier High Court decision. Overruling
can occur if the previous court did not correctly apply the law, or because the later court
considers that the rule of law contained in the previous ratio decidendi is no longer
desirable. The overruling is retrospectively except as regards matters that are res
judicata or accounts that have been settled in the meantime. The Apex Court or any
superior court cannot allow itself to be tied down by and become captive of a view which
in the light of the subsequent experience has been found to be patently erroneous,
manifestly unreasonable or to cause hardship or to result in plain iniquity or public
inconvenience. The Court has to keep the balance between the need of certainty and
continuity and the desirability of growth and development of law. It can neither by
judicial pronouncements allow law to petrify into fossilized rigidity nor can it allow
revolutionary iconoclasm to sweep away established principles. On the one hand the need
is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is
essential to curb the temptation to lay down new and novel principles in substitution of
well established principles in the ordinary run of cases and the readiness to canonise
the new principles too quickly before their saintliness has been affirmed by the passage of
time. It may perhaps be laid down as a broad proposition that a view which has been
accepted for a long period of time should not be disturbed unless the Court can say
positively that it was wrong or unreasonable or that it is productive of public hardship or
inconvenience. Manganlal Chhagganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay,
AIR 1974 SC 2009;1974(2) SCC 402.Decision of Full Bench of High Court passed after
considering the local conditions and history should not be easily disturbed. Nityananda
Kar and another, etc. etc. v. State of Orissa and others, AIR 1991 SC 1134; 1991Supp (2)
SCC 516 .7.5

5
http://legalsutra.com/2356/doctrine-of-precedent/

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 Chapter V
Other Circumstances which weaken the binding force of Precedent
a) Abrogated Decisions - A decision ceases to be binding if a statute or statutory rule is
inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher
court.
b) Reversing - Reversing is the overturning on appeal by a higher court, of the decision of the
court below that hearing the appeal. The appeal court will then substitute its own
decision.
c) Concession - Concession made by counsel on a question of law is not binding
as precedent. The Government of Tamil Nadu and others v. Badrinath and others, AIR
1987 SC 2381:1987(4) SCC 654; State of Rajasthan v/s Mahaveer Oil Industries (1999) 4
SCC 357.
d) Consent - When a direction or order is made by consent of the parties, the Court does not
adjudicate upon the rights of the parties nor lay down any principle. Municipal
Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38: 1989(1) SCC 101; 1989Supp.
(2) SCR 929.
e) Non Speaking Order - Non speaking order dismissing special leave petition would not
constitute binding precedent as to the ratio of the High Court involved in the decision
against which special leave petition to appeal was filed. Ajit Kumar Rath v/s State
of Orissa (1999) 9SCC 596.
f) Specific Exclusion - A judgment stating therein itself that the ratio laid down therein shall
not be binding precedent or shall not be followed or relied upon , can not be treated
as binding precedent. Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC
437.
g) On Facts - If a judgment is rendered merely having regard to the fact situations obtaining
therein, the same could not be declaration of law within meaning of Article 141.UP State
Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586 ;(2006)1 SCC
479;.There is nothing in the Constitution which prevent the Supreme Court from the
reversing its previous decision. State of West Bengal v. Corporation of Calcutta, AIR
1967 SC 997: 1967(2)SCR 170.An earlier decision cannot be departed unless there are
extra-ordinary or special reasons for doing so. Manganese Ore (India) Ltd. v.

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 The Regional Assistant Commissioner of Sales Tax, Jabalpur, AIR 1976 SC 410;:
1996(4) SCC 124. Non-consideration for foreign decisions. The decision of Constitution
Bench which held the field a quarter of century without challenge. Reconsideration on
account of non-consideration of an American decision, not cited before the bench, is not
called for. Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi, AIR 1986 SC
293: 1986(1) SCC445: ;India Electric Works Ltd. v. James Mantosh and another, AIR
1971 SC 2313; 1971(1) SCC24.Thus , one of the tools of an Advocate to persuade a
Court on the point canvassed before it, that is to cite a binding precedent, is not always
without limitations and it has to be an endevour of every advocate to perform an exercise
to find out the ratio decidendi of a judgment and its relevancy to the proposition put
before the court in the context of the facts of the case, before the same is quoted.6

6
Dr. Veena Madhav Tomapi, Textbook on Jurisprudence, Universal Law Publishing Co., 2010.

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 Conclusion

Lord Halsbury has said that there is more to the law than a mechanical process of logical
deduction. It is obvious that the Judge has in every case to decide for himself which of the
circumstances of the alleged precedent were relevant to the decision and whether the
circumstances of his own case are in their essentials similar. Once he has decided which
principle to apply, a bit of logic may enter into his application of principles. But there cannot
always be a principle which imposes itself or an absolutely inescapable logical deduction.
Generally there is a choice.

However, it must be conceded that stare decisis is only a part of this topic. There is much more.
There are substantive rules for the interpretation of statutes, there are unique considerations when
principles of the law of equity are involved and problems caused by the evidentiary rules of onus
of proof. Yet, while the multitude of these rules provides the lawyer with a large variety of other
tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare
decisis continues to play the pivotal role. The great American judge, Oliver Wendell Holmes Jnr,
had said ‘The life of the Law has not been logic; it has been experience’. It can be concluded that
for an organized and orderly development of law the method of using judicial precedents is
inevitable.

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 Bibliography

1. Black's Law Dictionary, p. 1059 (5th ed. 1979).

2. Dr. Veena Madhav Tomapi, Textbook on Jurisprudence, Universal Law Publishing Co.,
2010.
3. Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California
Law Review (2004).
4. http://www.lawyersclubindia.com/articles/Doctrine-of-Judicial-Precedent-and-their-
declining-credibility-6077.asp#.VwIDItIrLIU.
5. http://www.lawgratis.com/2016/02/19/judicial-precedents/.
6. http://legalsutra.com/2356/doctrine-of-precedent/.

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