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A PERSPECTIVE ON PRECEDENTS

1. THE THEORY

1.1. HISTORICAL AND THEORITICAL BACKGROUND

One may begin this essay by recalling the question answer

session in Vanaparba of the Mahabharata between the Yaksha and the
Pandavas. One of the questions there was “ Kah Pantha” (what is the
right path). Though the younger Pandavas failed to answer the questions
including this one correctly Yudhisthir – the eldest and wisest of the
Pandavas answered the question thus “Mahajans Jena Gatah Sha
Pantha” (the one trodden by the wise is the right path). The essence of
this in the context of Judicial decision making is that the decision of the
wise (the Judges of the Superior Court) is the correct decision on a
particular point. Citing of previously decided cases in order to persuade
the Court to decide the case at hand similarly is prevalent in most
systems of administration of justice through Courts. But only in England
previous decisions gradually began to acquire authority of law itself
rather than evidence of the law as in most systems. English common law
is entirely Judge made law consisting of authoritative decisions of the
Courts followed in subsequent cases. In Rome also previous decisions
were cited but not as law but as evidence of law. Because of this
historical development “the doctrine of precedent has acquired two
meanings. In the first, which may be called the loose meaning, the
phrase means merely that precedents are reported, may be cited and will
probably be followed by the Courts. In the second, the strict meaning,
the phrase means that the precedents not only have great authority, but
must (in certain circumstances) be followed”. Among the Jurists there
is variance regarding the Doctrine of precedents in its strict sense only.
The continental law countries – France, Germany, Italy etc- use the
Doctrine only in the loose sense. The common law countries like,
England, America and India apply the Doctrine in the strict sence.
Indeed, Article 141 of the Constitution of India has bestowed
constitutional status and authority to the Doctrine of Precedents as
regards the decisions of the Supreme Court. The theoretical basis for
bestowing binding authority and the status of law to a decision on a
question of law is addition of certainty, consistency and predictability to
the legal system. Because of the same reason decisions of the High
Courts within their jurisdiction also comprise binding authority for the
subordinate judiciary within such jurisdiction. The judgments of the
High Courts other than the one having control over the concerned
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subordinate courts will attract the loose meaning of the Doctrine. Thus
broadly precedents fall into two categories binding and persuasive.

1.2. RATIO DECIDENDI, OBITER DICTA, PER INCURIAM AND SUB SILENTIO

In deciding a case the court determines facts, applies the law

to the set of facts found and arrives at a conclusion. The decision so
arrived at after exhaustion of all remedies against it attains finality and
is binding between the parties to the case. This in essence is the well
known concept of Res judicata. But what the case decides generally as
distinguished from the special decision for the parties is the principles of
law applied in reaching the decision. This is known as the ratio
decidendi. The facts are not part of the precedent whereas the principle
of law is its core. Indeed Article 141 of the Constitution uses the phrase
“ law declared”. It follows therefore that unless a decision declares, lays
down and/or interprets any legal principle there is no ratio decindi
involved and the decision may not be cited and applied in a later case.

In the course of a Judgment the Supreme Court and/or the High

Court may make various observations not precisely relevant to issues in
the case. There may be illustration in such a Judgment of the general
reasoning by reference to a hypothetical situation. Such courts may
decide a case on one point and may feel it unnecessary to pronounce on
the other points raised by the counsels and yet indicate the thinking of
the court on such other point. Such observations, hypothetical reasoning
and indication are categorized as obiter dicta. They are not binding
authorities. But they may throw some light on a problem arising before
a subordinate court and thus have some persuasive authority.
Judgments pronounced even by the Supreme Court in
ignorance of statute law or a binding precedent are known as judgments
per incuriam. Such judgments do not have THE authority of a precedent
and need not be followed. More than one point of law may be involved in
a case. If the Supreme Court and/or High Court decided the case on only
one point either because other points were not argued or because of
inadvertence or conscious negligence such other points are said to pass
sub-silentio and those points of law cannot be a precedent in other
cases. In other words if in a suit the trial court amongst others decides a
suit to be barred by res judicata as also by limitation and the High Court
as also the Supreme Court decides the matter only on the point of res
judicata and say nothing about limitation the point of limitation is said
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to have passed sub silentio and that decision cannot be cited and applied
as a precedent on the question of limitation.

Before concluding this part it needs to be noticed that as a

matter of modern jurisprudence precedents no doubt are a source of law
but they cannot be and need not be treated on par with legislation which
is the primary and prolific source of law in the modern world. The
Supreme Court also has in a number of cases deprecated the developing
practice of treating Judgments as legislation. Lastly even a bird’s eye
view of the Doctrine, as this one surely is, will be incomplete if the
pristine principle that a precedent is an authority for what it actually
decides and not for what can be logically inferred from it does not find a
mention here.

2. THE PRACTICE

2.1. THE DIFFICULTIES - FACTUAL

Usually in every segment of human activity theory is not
difficult to comprehend and it is the practice or application of the theory
to the reality which is beset with difficulties. Similar is the case in
application and use of precedents by Courts. Not least of the difficulties
in applying a precedent in deciding a case in court is the growing trend
among lawyers and Judges alike to cite and use so called precedents
indiscriminately, purpose being to impress and make a parade of
knowledge of law. Judges, in addition do it as ornament to the Judgment
delivered without such cases not even being cited by lawyers. Besides
impacting on the brevity of the judgments such a habit/trend also has a
significant impact on the quicker and timely delivery of the judgment.
This in turn impedes speedy disposal of cases which is the crying need
of the day. It may not be possible to control citation by lawyers but
Judges can surely control their own temptation to flaunt knowledge of
law. When there is a clear cut provision of Statute Law governing a
matter it is difficult to see the necessity to quote Supreme Court. Yet one
can read reported judgments proceeding somewhat as follows :- “Facts
admitted need not be proved, as held by the Supreme Court in so and so
case”.

It is surprising that as compared to the situation prevailing

in say fifty years ago in the 21st Century production of conflicting
Judgments and Judgments per incuriam by the High Courts nay even by
the Supreme Court has increased in numbers. A lot has been said and
heard about application of information communication technology to
Jutice delivery system. One expected that one of the first use of
technology would be to obliterate production of conflicting Judgments
and/or judgments per incuriam from the High Court and the Supreme
Court. Subordinate Judiciary does not produce precedent but is only its
consumer. Authority of a binding precedent can be denuded by
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legislation, overruling and reversing. Unless the lawyers assist the

Courts it is today difficult for the Judges to know the intervention of one
or the other of the three factors noted above. Some illustrations on this
aspect from a few judgments may be useful.

Question is whether a High Court can transfer a civil case from

one court within its jurisdiction to another competent court within the
jurisdiction of a different High Court. Considering the provisions of
Section 22, 23 and 25 of the Code of Civil Procedure (CPC hereinafter)
most of the High Courts both before and after the coming into force of
CPC (Amendment) Act of 1976 with effect from 01.02.1977 held that
High Court has the power of such inter state transfer of civil cases. It
needs to be mentioned that before the Amendment of 1976 only the
Govt. could order such inter state transfer. At present under Section 25
CPC the Supreme Court has the power to order inter state transfer. In a
judgment delivered recently on the 26th of September 2008 (DURGESH
SHARMA Vs JAYSHREE (2008) 9 SCC 648 and 2008 (13) SCALE 54)
the Supreme Court has overruled the Judgments in this regard of the
Patna, Andhra Pradesh Madhya Pradesh, Bombay, Kerala, Punjub and
Haryana and Nagpur High Court by interpreting the provisions of
Section 23(3) CPC as procedural and those of Section 25 CPC as
substantive and holding that the power to order such inter state/inter
High Court transfer rests only with the Supreme Court. Some of these
High Courts relied also on a Judgment of the Supreme Court itself
reported in WESTERN U.P. ELECTRIC POWER SUPPLY COMPANY
LTD. Vs HIND LAMPS (1969)2 SCWR 16 which has not been accepted
as an authority by the Supreme Court in DURGESH SHARMA (Supra) as
being a Judgment on concession besides being a judgment before the
CPC (Amendment) Act of 1976. DURGESH SHARMA (Supra) , on the
26th of September thus changes the law regarding transfer of civil cases
from the jurisdiction of one High Court to that of another High Court
drastically. It is very unlikely that a Judge in seizein of case of such
transfer in October/November 2008 would be aware of this
development unless the counsel places DURGESH SHARMA (Supra)
before the Judge.

BANK OF INDIA Vs M/S MEHTA BROTHERS & ORS.,

2008(12) SCALE 680 delivered by the Supreme Court on the 23rd of
September 2008 is another such precedent where the first proviso to
Order IX Rule 13 of the CPC has been interpreted as comprising even
the power of setting aside a interpartes decree in favour of the other
defendants if the criterion of indivisibility of the decree as a whole is
satisfied. The effect of the Judgment is to overrule the Full Bench
decision of KHARGESH CHANDRA Vs CHANDRA KANTA BARUA, AIR
1954 Ass 183(F.B.) holding the field since 26.03.1954. The date of the
Judgment cited as a precedent and the dates of the events/facts of the
case resulting in the said Judgment can help significantly in avoiding
pilfalls, of change of law, overruling and reversal denuding the authority
of that Judgment. Section 16(2) CPC (Amendment) Act 2002 provides
that the amended provisions of Order VI Rule 17 that is the poviso of
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Order VI Rule 17 would not be applicable to a pleading filed before

01.07.2002. Decisions like PRADEEP SINGHVI AND ANOTHER Vs
HEERO DHANKANI AND OTHERS (2004) 13 SCC 432 dated
23.07.2004, USHA DEVI Vs RIJWAN AHMED AND OTHERS, AIR 2008
SC 1147 dated 17.01.2008 are apt to mislead lawyers and Judges alike
as precedent on the proviso. The matter is further compounded by the
Head Note in PRADEEP SINGHVI (Supra) which even mentions the
proviso there. It is explicit on the dates mentioned in para 5 of PRADEEP
SINGHVI (Supra) that the events there being of 2001 proviso is not at
all attracted and the unamended law ruled the matter. USHA DEVI
(Supra) eventually decided the case relying on the Three Judge decision
in SAJJAN KUMAR Vs RAM KISHAN, (2005) 13 SCC 89 dated
22.08.2005 because it was found “closer on facts” though the counsels
argued on the proviso. Again para 6 of SAJJAN KUMAR (Supra) clearly
establishes that the proviso is not applicable in that case. No dates
except the statement that issues were framed on August 13, 2002 in
there is USHA DEVI (Supra). One can only guess that proviso is not
applicable in USHA DEVI (Supra) either.

The same kind of factual error occurred in CHANDER

KANTA BANSAL Vs RAJINDER SINGH ANAND , 2008 (4) SCALE 546
dated 11.03.2008 where lot of space and time had been spent on the
proviso without noticing that the proviso is not at all attracted. These
Judgments cannot be treated as precedents on the amended law as to
amendment of pleadings. No doubt anxiety to dispose of cases quickly is
one of the factors resulting in such errors at the highest level.
Consumers of precedents that is the subordinate courts have thus to be
discerning. The date of reporting of a judgment may often mislead
Judges and Lawyers alike. Habit of not going beyond the Head Note of a
Report also creates difficulties. At the level of the consumer errors
illustrated above can be avoided if the entire judgment cited as a
precedent is closely scrutinized.

2.2. DIFFICULTIES – LEGAL

Factual errors are the product of inadvertence,

misinformation, and/or ignorance. In a sense they may be categorized as
concrete. Legal errors are caused largely by mis-appreciation, arrogance
and ignorance. Legal errors may also be compounded by misinformation
as to facts. Legal errors thus being abstract cause the graver difficulty for
the subordinate Judiciary in accepting the authority of a precedent cited
by the lawyers. Tendency to breach the rule that precedent is an
authority for what it actually decides and not for what can be deduced
from it is at the core of legal errors in accepting a precedent as an
authority on a particular question of law. The interpretation even by the
Supreme Court on a particular provision of Statute would not be binding
in interpretation of a similar provision of a different Statute. However
pari materia Statute may be similarly interpreted not because of any
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binding authority of the interpretation but because of persuasive

authority only.

Some illustration in this regard may be useful. In BHARAT

DAMODAR KALE Vs STATE OF A.P., AIR 2003 S.C. 4560 a Two
Judge Bench of the Supreme Court interpreted the provisions of Chapter
XXXVI of the Code of Criminal Procedure 1973 (Cr.P.C. hereinafter)
regarding Limitation of criminal cases by laying down that limitation
provided is for filing of the complaint or the charge-sheet and not for
taking cognizance. A Three Judge Bench of the Supreme Court in
KRISHNA PILLAI Vs T.A. RAJENDRAN, 1990 (Supp) SCC 121 relying
on the Constitution Bench Judgment in A.R. ANTULAY Vs RAM DAS
SRINIVAS NAYAK, (1984) 2 SCC 500 interpreting Section 9 of the Child
Marriage Restraint Act 1928 held that the Magistrate is not competent to
take cognizance beyond one year under the said Act. The Andhra
Pradesh High Court in 2006 Cr. LJ 2438 read a conflict between the
earlier Three Judge decision and the later decision in BHARAT
DAMODAR (Supra) in dealing with the limitation of a case under Section
72 of the Standard Weights and Measures Act 1976 and followed the
Three Judge decision. The legal error is too transparent to need any
elaboration.

In DILIP S. DHANUKAR Vs KOTAK MAHINDRA AND CO.

AND ANOTHER, (2007)6 SCC 528 the Supreme Court Judgment
contained the sentencing portion of the accused. Sentencing portion
says that in default of payment of the fine imposed on the company the
representative of the company shall suffer imprisonment in default. The
Supreme Court has not commented on this portion of the sentence.
Merely because the erroneous sentencing portion is contained in a
Judgment of the Supreme Court it cannot be applied as a precedent to
support such a default sentence as permissible.

In MANISH JALAN Vs STATE OF KARNATAKA, AIR 2008

S.C. 3074 dated 11.07.2008 the Supreme Court reduced the
imprisonment to the period undergone, confirmed the fine and in
addition imposed compensation under Section 357(3) of the Cr.P.C. This
Judgement cannot be used as a precedent by the consumers of
precedent to permit imposition of fine and compensation in the teeth of
the provision of Section 357(3) Cr.P.C.

3. THE CONCLUSION

What the Supreme Court does in a particular case is not a

precedent to be followed by other courts. Only what the Supreme Court
lays down or says to be the law is a precedent. Thus other courts have to
be alert to distinguish between the word and the deed of the Supreme
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Court in a case. In this connection DELHI ADMINISTRATION Vs

MANOHAR LAL, AIR 2002 S.C. 3088 may be remembered.

Not the least of the difficulties in applying a precedent is

presented by conflicting decisions of the High Court or the Supreme
Court. Turning to SALMOND ON JURISPRUDENCE on which the author
has copiously drawn in preparing the essay one can conclude that in
such a case rule is better in law not later in time. It is thus open to the
subordinate court to choose and apply one or the other of such decisions
depending on its worth, in the opinion of the Court, taking care to see
whether any change of law or other such factors have intervened or not.