25 Mar 2010

Stare Decisis: The concept understood

In a recent decision, the Delhi High Court has noted in detail the concept of stare decisis as applicable in common law jurisprudence. Relating to the law of precedents, the concept of stare decisis relates to the binding nature of an earlier decision over a subsequent Bench called upon to decide over a similar issue. The concept, as applicable in India, was explained by the High Court in the following terms;

6. Since we are of the view that Essar Constructions is irreconcilable with the earlier Judgment of a Larger Bench, namely, Nilkantha, it becomes necessary to delve into one aspect of the principle of stare decisis, that is, the parameters within which the later Bench of a High Court or the Supreme Court has liberty to move around with regard to a decision already rendered by a Bench of greater or similar strength.
7. We shall start our study with the decision of the Five-Judge Constitution Bench in Union of India –vs- Raghubir Singh, AIR 1989 SC 1933 : 1989(2) SCC 754. The question before their Lordships was whether under the Land Acquisition Act, 1894 the claimants are entitled to solatium at thirty per cent of the market value regardless of the date of the acquisition. In that context several Judgments of the Supreme Court came to be cited. It was in those circumstances the Supreme Court clarified the law in these terms:- 
26. It is not necessary to refer to all the cases on the point. The broad guidelines are easily deducible from what has gone before. The possibility of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of law may make a consensual pattern possible. But that lies in the future. 
27. There was some debate on the question whether a Division Bench of Judges is obliged to follow the law laid down by a Division Bench of a larger number of Judges. Doubt: has arisen on the point because of certain observations made by O. Chinnappa Reddy, J. in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra (1983) 3 SCC 39 : 1984 CriLJ 1909. Earlier, a Division Bench of two Judges, of whom he. was one, had expressed the view in T. V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68: 1983CriLJ693 that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle a person under sentence of death to invoke Article 21 of the Constitution and demand the quashing of the sentence of death. This would be so, he observed, even if the delay in the execution was occasioned by the time necessary for filing an appeal or for considering the reprieve of the accused or some other cause for which the accused himself may be responsible. This view was found unacceptable by a Bench of three Judges in Sher Singh v. State of Punjab (1983) 2 SCC 344 : [1983]2SCR582, where the learned Judges observed that no hard and fast rule could be laid down in the matter. In direct disagreement with the view in T. V. Vatheeswaran (supra), the learned Judges said that account had to be taken of the time occupied by proceedings in the High Court and in the Supreme Court and before the executive authorities, and it was relevant to consider whether the delay was attributable to the conduct of the accused As a member of another Bench of two Judges, in Javed Ahmed Abdul Hamid Pawala (supra) O. Chinnappa Reddy, J. questioned the validity of the observations made in Sher Singh (supra) and went on to note, without expressing any concluded opinion on the point, that it was a serious question "whether a Division Bench of three Judges could purport to overrule the judgment of a Division Bench of two Judges merely because three is larger than two. The court sits in. Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293. It may be otherwise where a Full bench or a Constitution Bench does so." It is pertinent to record here that because of the doubt cast on the validity of the opinion of Sher Singh (supra), the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of five Judges, and in Triveniben v. State of Gujarat : AIR1989SC142 the, Constitution Bench overruled T. V. Vatheeswaran :1983CriLJ693 (supra).
28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and, by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal 1975CriLJ637 a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal 1974CriLJ1479 decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of West Bengal 1974CriLJ690 decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Raj Narain [1976]2SCR347 Beg, 1 held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, AIR1973SC1461. In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (Since Dead) Through Lrs., AIR1981SC1956, this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal [1975]1SCR127 this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat [1975]2SCR317, that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips India Ltd. [1986]158ITR574(SC) which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana [1980]3SCR689 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U. P. [1979]118ITR326(SC), on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.
8. This ratio of Raghubir Singh was applied once again by the Constitution Bench in Chandra Prakash –vs- State of U.P., AIR 2002 SC 1652. We think it instructive to extract the following observations from Chandra Prakash in order to underscore that there is a consistent and constant judicial opinion, spanning across decades, on this aspect of jurisprudence:
22. Almost similar is the view expressed by a recent judgment of a five-Judge Bench of this Court in Parija‟s case(supra). In that case, a Bench of two learned Judges doubted the correctness of the decision of a Bench of three learned Judges, hence, directly referred the matter to a Bench of five learned Judges for reconsideration. In such a situation, the five-Judge Bench held that judicial discipline and propriety demanded that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges. On this basis, the five-Judge Bench found fault with the reference made by the two-Judge Bench based on the doctrine of binding precedent.
23. A careful perusal of the above judgments shows that this Court took note of the hierarchical character of the judicial system in India. It also held that it is of paramount importance that the law declared by this Court should be certain, clear and consistent. As stated in the above judgments, it is of common knowledge that most of the decisions of this Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that-
“But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.”
9. We shall only mention Union of India –vs- K.S. Subramanian, AIR 1976 SC 2433 and Indian Petrochemicals Corporation Ltd. –vs- Shramik Sena, AIR 2001 SC 3510.
10. In this analysis, our conclusion on this extremely important aspect of the law, that is, stare decisis, is that when a Bench is faced with a decision of a previous Bench of equal strength (in modern legal parlance coordinate Bench or equi-bench), it is expected to follow the previous decision and apply its ratio. We can do no better than reiterate the pronouncement in Mamleshwar Prasad –vs- Kanhaiya Lal, 1975 (2) SCC 232 : AIR 1975 SC 907, followed in Fuerst Day Lawson –vs- Jindal Exports Ltd., AIR 2001 SC 2293 which have reflected on the principle of per incuriam. Their Lordships held that –“Certainty of law, consistency of rulings and comity of courts – all flowering from the same principle – converge to the conclusion that a decision once rendered must later bind like cases. ….a prior decision of this court on identical facts and law binds the court on the same points in a later case. Here we have a decision admittedly rendered on facts and law indistinguishably identical, and that ruling must bind”.
11. Very recently, the Full Bench of the Bombay High Court has also considered this conundrum in Sandeep Rammilan Shukla –vs- The State of Maharashtra, 2009(1) MhLj.97. References to the decision of the Division Bench of the Punjab High Court in WP(C) No.2936/2002 titled Rohtash –vs- State of Haryana and a previous Full Bench of the Bombay High Court in Appeal Nol.370/2007 titled Emkay Exports –vs- Madhusudan Shrikrishna and of the Supreme Court in K.S. Subramanian was made. The conclusion of the Full Bench was that the ratio of the earlier decisions shall prevail. We also have the benefit of a detailed discussion of this aspect of the law undertaken by a coordinate Bench of this Court in Smt. Gopa Manish Vora –vs- Union of India, MANU/DE/0841/2009. Our learned Brother, Badar Durrez Ahmed, J., also speaking for V.B.Gupta, J. had to unravel the problem posed by the existence of two conflicting views of the Supreme Court. Reference was made to the Full Bench decision of the High Court of Allahabad in Ganga Saran –vs- Civil Judge, Hapur, Ghaziabad, AIR 1991 Allahabad 114 as well as to the Full Bench of the Punjab High Court in Indo Swiss Time Ltd, Dundahera –vs- Umrao, AIR1981P&H213. Our learned Brothers had thereafter ventured to voice the view that the High Court has the option to choose between the ratio set down by equi-benches. In paragraph 8 of Indian Petrochemicals Corporation Limited –vs- Shramik Sena, their Lordships have opined that when a Court is confronted with diametrically opposite decisions “it was expected of the High Court to decide the case (writ petition) on merit according to its own interpretation of the said judgment”. Placed in such a predicament, we would invariably choose to adhere to the earlier decision since doing so would be conducive to perpetuating consistency in the law. Salmond on Jurisprudence unworkably dilutes the efficacy of principle of stare decisis when it opines that – “Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be”. This approach cannot but lead to uncertainty which is an anathema and abhorrence to law. If this is permissible, it would lead to multiplicity of views, all of which would inexorably create equivocation and ambivalence of what the law is, which is the very antithesis of the rule of stare decisis. If the judicial conscience of a coordinate Bench is so aroused that it finds it impossible to follow the existing ratio, it can do no more than refer the matter to a larger Bench. The rule of stare decisis, for obvious reasons, is equally annihilated by the so-called explanation of a precedent by a smaller Bench. The situation is exacerbated where it becomes palpably clear that the interpretation by a later Bench of the earlier judgment of a Bench of greater strength is based on erroneous appreciation of the facts.
12. If the freedom to pick and choose between two decisions of the Supreme Court of India is bestowed on subordinate courts, it would run counter to Article 141 of the Constitution of India which simply and concisely states that – “the law declared by the Supreme Court shall be binding on all Courts within the territory of India”. In Government of Andhra Pradesh –vs- A.P. Jaiswal, AIR 2001 SC 499 it has been enunciated that-“consistency is the corner stone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedence, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice”. This is precisely what their Lordships had said in S.I. Rooplal –vs- Lt. Governor, AIR 2000 SC 594, viz. –“A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.”

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