Law of Precedents

Law of Precedents and appropriate use of case law in court working

           

“Any group of Doctors will have the same opinion on the same diagnosis”,

“Any group of Engineers will have the same opinion on the same principles”,

“But no two advocates will have the same opinion on any of the issues”.

 

HON’BLE APEX COURT  in case of Rupa Ashok –versus- Ashok Hurra reported in (2002) Volume 4 Supreme Court Cases 388 has held that,

 

“ Function of judiciary is held no longer limited to interpretation and declaration of law.   Courts can mould and lay down law formulating principles and guidelines to adopt and adjust to the changing conditions of the society with the object to dispense justice”.

 

THE ignorance of the judge is the misfortune of the innocent. A common error makes law. What was at first illegal, being repeated many times, is presumed to have acquired the force of usage, and then it would be wrong to depart from it.

 

IN order to avoid such instances the precedents are of utmost importance it helps to set right the error.  While using the precedents it is necessary to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. 

 

LORD Denning, while speaking in the matter of applying precedents said, “Precedent should be followed only so far as it marks the path of justice, but one must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches”. 

 

IT is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore judges ought to employ an intelligent technique in the use of precedents.

 

LORD Macmillan has said that precedents should be "stepping-stones and not halting places". But, Justice Cardozo's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings according to the various sets of litigants.

 

ARTICLE 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the 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 a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case.

 

UNDER Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all courts within the territory of India. There is no provision in the Constitution which provides that the law declared by a High Court is binding on the lower Court. However, by judicial precedents the law declared by the High Court is to be followed by the courts and Tribunals subordinate to it and or under its Supervisory Jurisdiction.

 

THE binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.

 

WHEN a position, in law, is well settled as a result of judicial pronouncement of Apex court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and subordinate courts should deprecate the tendency of the not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties.

 

ACCORDING to the well-settled theory of precedents, every decision contains three basic postulates.

 

(i)                             findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;

(ii)                           statements of the principles of law applicable to the legal problems disclosed by the facts; and

(iii)                         judgment based on the combined effect of the above.

 

FOLLOWING are the important terminology which forms part and parcel of Article 141 of Constitution of India. They are as under :

 

1.         Binding effect

2.         Ratio decidendi

3.         Stare decisis

4.         Obiter dicta

5.         Sub-silentio

6.         In-percuriam

 

OBITER DICTA means remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts, judicial statements, not essential to the decision of the case and therefore without binding authority.

 

RATIO DECIDENDI means the rule for which a stand as authority.  Ratio decendi of the judgment is to be followed. To be the ratio decendi amongst others the minimum requirements are : --

 

1)         that the matter was directly in issue;

2)         that the issue needs to have been decided, and

3)         the matter has been decided by giving reasons

 

IT is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.   It is settled legal position that the ratio decidendi is based upon the facts actually decided. It is an authority for those facts.

 

A DECISION is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject- matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding.

 

PRECEDENT means a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment.  A decision is available as a Precedent only if it decides a question of law. When that decision followed by the court ' in several cases up to recently, its binding effect should not be disturbed merely on ground that any particular aspect had not been expressly considered therein.  The doctrine that a lower court must follow a precedent is called stare decisis.

 

STARE DECISIS means "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it or not)

 

It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

 

STARE DECISIS is ordinarily a wise rule of action - But it is not a universal and inexorable command - If the rule of Stare decisis were followed blindly and mechanically, it would stagnate the growth of the law and affect its capacity to adjust itself to the changing needs of the society. The rule of adherence to precedence is not a rigid and inflexible rule of law but it is a rule of practice adopted by the Courts for the purpose of ensuring uniformity and stability in the law. Otherwise, every Judge will decide an issue according to his own view and lay down a rule according to his own perception and there will be no certainty and predictability in the law, leading to chaos and confusion and in the process, destroying the rule of law.

 

STARE DECISIS - The binding effect of a decision, does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. Stare decisis is an authority for what is actually decided in the case and not for what followed from it.

 

IN order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.

 

PRONOUNCEMENTS of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. The only thing in a judge’s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.

 

A DECISION passes sub silentio in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour: but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not .an authority on point B. Point B is said to pass sub silentio.

 

PRECEDENTS sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex-cathedra statement, having the weight of authority.

 

ALL these precedents can be very well used appropriately in the appropriate cases provided the assistance of the Bar is available.  It is settled position that a good Bar can produce great judges.  Therefore a short term training be imparted to the members of Bar so as to made them aware about the changes of law, its true interpretation  and particularly about their duties to the court and client. 

 

WHILE summing up it is pertinent to mention here that we have the great history of the precedents since pre and post independence.  The judgments from Tahsildarsingh to Salem Advocate Bar Associations are available with us.  Now with the great arms and ammunition of these authorities, there is a great need to bring the uniformity amongst the Judicial Officers of various places to use the precedents in its literal meaning so as to respect the provision of Article 141 of Constitution of India.