Samarth Sansar and Shreya, both law students at National University of Juridical Sciences, Kolkata, India, discuss how judgments and orders passed by courts with the caveat of not treating them as a precedent are antithetical to the doctrine of stare decisis...
The debate surrounding the interpretation of the Unlawful Activities Prevention Act (UAPA) gained significant push when the matter relating to the grant of bail to three activists by the Delhi High Court reached the apex court in appeal. Though the court did not interfere in the bail order, the bench expressed anguish over the adjudication of the scope of the Act, even though it was not challenged. In a rather alarming observation, the bench, without staying the high court’s order, noted that the impugned judgment shall not be treated as a precedent and may not be relied upon by any of the parties.
For a long time, there has been a disturbing practice where the courts pass judgments and orders with the caveat of not treating them as a precedent. It is our case that such observations can only be made when the impugned judgment is found to be inappropriate after due scrutiny. Unfortunately, recent practice shows that such observations are made out of exorbitant caution without realising its impact. In this article, we discuss how these judgments and orders are antithetical to the idea of the principle of stare decisis and undermine the importance of binding precedents. We argue that while the purpose of judicial pronouncements is to ensure certainty, the practice of ‘caveated’ orders serves the exact opposite. Furthermore, the practice of giving caveats shows a lack of confidence and conviction in the judicial orders.
Doctrine of Stare Decisis: An Edifice of Judicial Proprietary
A legal system is a living entity. It evolves, it grows and it forms an intrinsic part of the life of people for whom it functions. The two vital sources of law in the common law is ‘legislation’ and ‘judicial decisions.’ When a case is decided by the court it is not only the law for the parties involved but becomes a part of the law. This principle is referred to as the doctrine of stare decisis, which obligates the courts to refer to the previous judgments decided by the Supreme Court and High Courts having supervisory jurisdiction over them, or by a bench of larger or of equal strength. The doctrine of stare decisis forms an intrinsic feature of our legal system which is based on a hierarchy of courts. This doctrine aims to promote consistency in a judicial decision, affirms judicial proprietary and instils faith in the citizenry about the administration of justice which our judiciary strives to promote.
The doctrine of stare decisis evolved in England in the absence of codified law and was later adopted in Indian law. Under Section 212 of the Government of India Act, it was provided that law declared by the federal court and judgment delivered by the Privy Council shall be regarded as binding and should be followed by all courts in India. With the Indian Constitution coming into force, the doctrine is recognised to emanate from Article 141 of the Constitution.
In one of the first instances of a similar nature, in 1968, the Supreme Court had the opportunity to deliberate upon the importance of precedents in our judicial system. The court was dealing with a matter where a judge had declined to be bound by the prior judgment of a similar or larger bench of the same High Court. The Supreme Court unequivocally held that such an observation disrupts the accepted notions of the rule of law where precedents form the foundation of the administration of justice. Further, in the case of Jaisri v. Rajdevan, it was observed that if the law of precedents is disregarded, “law would be left devoid of all its utility and be thrown into a state of uncertainty.” Furthermore, the Supreme Court in the Raghubir Singh case held that the decision of the courts have significance not merely because it is the adjudication of the rights of parties involved but also because such adjudication embodies the declaration of law as a binding principle for future cases. The latter aspect is pivotal to the development of the jurisprudence of law. This doctrine of binding precedent provides assurance to the people regarding the import of the transactions forming part of their daily lives.
The finality of the judgement entailing stare decisis thus forms an indispensable part of justice administration and departing from this settled position without compelling reasons is regarded as tantamount to abuse of process of the court.
Taking Away Precedential Value: Devoid of Legal Basis & Moral Conviction
Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. This Article ensures that the law laid down by the court is clear and consistent to promote certainty and public faith in our judiciary. However, neither the Constitution nor the Supreme Court Rules provide any exception where the courts can declare any ruling to have no precedential value. Hon’ble Justice DY Chandrachud, while hearing a similar matter, recently noted that “the Supreme Court is final not because it is right, but it is right because it is final.” It is imperative that such observations can only be made in exceptional circumstances when the parties have consented to the outcome (in civil matters) or under Article 142 of the Constitution when it is necessary to do so in order to ensure complete justice. Interestingly, in 1989, the Bombay High Court did not consider the observation made by the Supreme Court regarding the precedential value of ruling and relied on its judgment as the facts of the cases were identical.
In a recent matter of Ramesh Rathod v. Vishanbhai Hirabhai, a division bench of the apex court came down heavily on the practice of giving caveats against treating judicial orders as precedents. The bench noted that “the observation that order shall not be considered as a precedent for any other person who is accused in the FIR on the grounds of parity does not constitute judicially appropriate reasoning.” It was emphasised that whether an order is a precedent or not is a matter of future adjudication, and the observation of the judge ‘caveating’ the order was inappropriate and erroneous. Justice Chandrachud, who was heading the division bench, stated that orders stating it not to be treated precedent indicates a lack of confidence and moral conviction in one’s viewpoint. In such a case, those orders should not be passed at all.
It is essential to understand that any judgment or order will have no precedential value only when it is held to be either per incuriam, sub silentio passed without any jurisdiction, or in violation of principles of natural justice, among others. There is no legal or moral basis to take away the precedential value of a judgment unless it is made under exceptional circumstances. When issues of similar nature arise, the courts must, as a matter of judicial propriety, rely on the settled law to promote certainty which is the hallmark of our legal system.
The analysis presented above makes it amply clear that the practice of taking away the precedential value of orders among the courts is inherently problematic not only from a moral point of view but also from a legal standpoint. The Supreme Court has itself time and again reiterated the significance of public faith and confidence and stated that erosion of credibility in the public mind is the greatest threat to the independence of the judiciary. Unfortunately, the courts have themselves added to the attrition to some extent by taking away the certainty from their rulings and giving the impression of lack of conviction in their own orders.
Not only does such practice vitiates the doctrine of stare decisis but also creates a peculiar situation where the lower courts have refused to abide by the rulings of the higher courts, the Bombay High Court ruling in the Navinchandra case being one such instance. Therefore, it is imperative that not only the Supreme Court but all the higher courts, whose judgments have a binding effect on respective lower courts, should avoid such caveats unless certain compelling reasons are recorded. Further, it is now the pressing necessity of the time that the observation made by the apex court in the Ramesh Rathod case be considered in letter and spirit by all the courts, including the apex court itself. Ensuring certainty and respect for the rule of law is the obligation of the judges under their oath and they must conform to it in the greater interest of the public as well as the institution of judiciary.
Samarth Sansar is a fourth-year B.A., LL.B. (Hons.) student at National University of Juridical Sciences, Kolkata, India. He is primarily interested in constitutional law as well as issues of public policy.
Shreya is a third-year B.A., LL.B. (Hons.) student at National University of Juridical Sciences, Kolkata. She does not use any official surname. She is interested in Constitutional and Criminal Law, as well as matters involving the judiciary and its functioning.
Suggested citation: Samarth Sansar and Shreya, ‘No Precedential Value’: Courts Propagating Uncertainty in the Legal System, JURIST – Student Commentary, July 20, 2021, https://www.jurist.org/commentary/2021/07/sansar-shreya-no-precedential-value/.
This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org
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