According to Sir John Salmond, ”A precedent is said to be a judicial

decision which contains its principles. The stated principle which thus
forms its authoritative element is called the ratio decidendi. The concrete
decision is thus binding between the parties, but it is the abstract ratio
decidendi which alone has the force of law as regards the world at large.”

The appellate system which has been structured on the common law
pattern of the hierarchy of competent courts, the doctrine of precedents
can be considered as a vigilant omnipresence. The relevance of precedent
as a guide to judicial decision making remains as undisputed in the
present day as it was more than a hundred and forty years ago when Lord
Campbell called attention to the importance of the binding effect of
the ratio decided in A.G. v. Dean.

It is inconceivable that judges will express their mind on the question of

law otherwise than through a reasoned articulation which bears upon prior
case law contained in the decisions of their predecessors. In India, as in
any legal system with its roots in common law, stare decisis epitomizes a
legal ideology that expresses a fighting faith in the assertion that the law
should be founded on such values as continuity, and certainty, Underlying
the stare decisis rationale is the pervasive, albeit uncritical, assumption
that the judicial process is concerned with an articulate and accurate
enunciation of pre-existing law as opposed to the more arbitrary and
inherently non-judicial process of legislative law-making.

Judges who are brought up in the tradition of English common law

rationalize their decisions in terms of ratio decidendi of past cases. As a
matter of legal theory, though not strictly as a matter of judicial practice,
they are bound by prior decisions of controlling authority.

Some works on the Supreme Court and judges of the Supreme Court
advertised that the Indian Supreme Court is lacking ‘unprecedented
consciousness’. It is said that there have been activist judges in the court
who have often enough refused to take note of the relevant precedent.
Even the non-so-activist judges, it is said, have ignored precedents that
could have been appropriately noticed and distinguished. There have
been instances of judges who on careful reconsideration have
disassociated themselves from their own earlier pronouncements.

In accordance with Article 141 of the Constitution, the Supreme Court of

India is enjoined to declare the procedural law as well as the substantive
law. The term ‘declared’ is said to be wider than the term ‘made’ or
‘found’ for that matter. It has been specified that to declare means to
announce a particular opinion. Indeed, the term “made” involves a
process, while the term “declare” expresses a result. The law declared by
the Supreme Court is the law of the land. It is a precedent for itself and for
all courts/authorities in India.

To deny this power to the Supreme Court footing it only “finds” law but
does not “make” it, is to make ineffective the powerful instrument of
justice placed in the hands of the highest Judiciary. While the position of
the Supreme Court is subordinate to the legislature, in declaring the law,
creativity is involved. A statute is binding; but it is the statute, as
interpreted by the Supreme Court that is binding on all the other courts.
The Supreme Court is not a mere interpreter of the existing law. As a wing
of the State, it is a source of law”.

In Mohd. Ahmed Khan v. Shah Bano Begum it was held that the Supreme
Court’s interpretation of religious texts is a binding precedent. The apex
court, after finding out the important rights of Muslim divorced women
who were not there properly in the original texts or any other material,
upheld the same.

What is doctrine of precedent

A judicial precedent is a legally binding rule or a decision that is given by

a higher court in certain cases, which the lower courts rely on while
deciding similar cases. Precedents are considered an important source of
law. Keeton defines judicial precedents as “judicial decisions to which
authority in some measure has been attached”.

Precedents serve to supplement and bridge the gaps in the legal system
where they’re required. Hence, precedents can lay down a rule or law but
cannot alter already established laws. Since these judicial precedents are
given by judges, who are experts in law, they are generally presumed to
be right, and it is on this basis that precedents have an element of
authority attached to them. Hence, the doctrine of precedent refers to the
authoritative nature of the precedents, which obligates the courts to apply
precedent in cases where the material facts of the case are similar to
those of the precedent case.

The rule of precedent has been adopted from English jurisprudence into
the Indian Constitution. Article 141 of the Constitution stipulates that “the
law declared by the Supreme Court shall be binding on all Courts within
the territory of India”.

Historical growth of precedent in India

The English Common Law system is widely built upon the judicial
precedents decided by the House of Lords and, currently, the English
Courts. With the establishment of Mayor’s Courts by the British East India
Company in 1726, the use of judicial precedents was introduced in India.
In 1935, through the enactment of the Government of India Act, 1935,
judicial precedents were finally given statutory recognition. Section 212 of
the 1935 Act declared that the laws and precedents made by the Privy
Council and the Federal Court shall be binding on all the decisions taken
by Indian Courts. After independence, when our Constitution came into
force in 1950, Article 141 was enforced, which strengthened the status of
judicial precedents in the Indian legal system. It established that all the
laws or rules made by the Supreme Court shall be binding on all the other
lower courts. However, there was ambiguity regarding whether the
Supreme Court would be bound by its own precedents or not. Referring to
the English courts, initially, both the subordinate courts and the House of
Lords themselves were bound by the decisions taken by the House of
Lords. But later, in the case of Boys v. Chaplin (1967), it was ruled that the
House of Lords would not be bound by its decisions. In India, in the case
of Bengal Immunity Co. v. State of Bihar, 1955, the question of whether
‘all courts’ included the Supreme Court was resolved. The Court remarked
that “there is nothing in the constitution that prevents SC from departing
from its own decisions, if it is satisfied of its errors and of the beneficial
interest of the general public.” Thus, the Supreme Court is not strictly
bound by its own decisions.

What is ratio decidendi

According to Salmond, a precedent is a judicial decision that contains a

principle. This principle has authority, or the force of law, which will bind
the Courts in their subsequent judgements. So, this authoritative principle
in a judicial decision is called the ratio decidendi. The entire judgement as
a whole binds the parties to the case completely, but the ‘principle’ which
constitutes the ratio decidendi of the judgement alone, has force of law
vis-a-vis the world at large.

Rupert Cross defines a ratio decidendi as “the rule of law, expressly or

impliedly treated by the judge as a necessary step in reaching his
conclusion”. Ratio decidendi literally translates to “reason for deciding”. It
is the rationale given by the judges for deciding a case or reaching a
conclusion in a certain manner. A ratio is derived from the application of
the law to the material facts of the case. Thus, it is a statement of applied
law on the facts of the case, and this ‘reason or rationale’ is binding on
the subordinate courts while they decide on cases with similar facts.

In the case of Shailyamanyu Singh v. the State Of Maharashtra (2023), the

Court clarified that neither the finding of the facts by the court nor the
reasons given for deciding on granting specific relief can be considered
precedent. Only the statement of law applied to the legal issue raised on
the facts based on which the case is decided forms the ratio decidendi,
which constitutes a binding precedent.

Further, in Manager v. Pawan Kumar Dubey (1976), the Court remarked

that ratio decidendi is the rule that is deduced from the application of law
to the facts and circumstances of the case and not the conclusion that
was arrived at in the case, since even a slight difference in facts in two
similar cases can lead to very different conclusions even when the
principles applied in both the cases are the same. In Shin-Etsu Chemical
Co. Ltd. v. Aksh Optifibre Ltd. (2005), the Court explained that “the ratio
decidendi of a case is the principle of law that decides the dispute of facts
in the case.”

What is obiter dicta

The Latin term “obiter dicta” (or “obiter dictum” in singular)

means “things said by the way”. Obiter dicta, much in contrast to ratio
decidendi, are those statements, discussions, legal opinions, or remarks
given by the judges that do not directly play a role in how the decision or
judgement of the case turns out. These are miscellaneous statements
that constitute the major portions of the judgement, however, they are
not legally binding like a precedent.

Professor Patterson defines obiter dictum as “a statement of law in the

opinion that could not logically be a major premise of the selected facts of
the decision”.

Obiter dicta are statements that are not central to any kind of legal
reasoning or application of law but rather are used as an instrument of
persuasion by the judges. They provide insights into the thought process
of the judges and gain their views and opinions on a certain legal point. At
times, one can even find suggestions or judges calling out the defects in a
certain law through these obiter dicta. However, even these views,
suggestions, and explanations into broader concepts of law can be given
by the judges only if they are strictly relevant to the case in hand and
when they feel a need to speak out for the sake of the public.

However, it is important to note that in the Indian legal system, certain

cases have reiterated the binding capacity of obiter dicta of the Supreme
Court over the High Courts and other subordinate courts. In Hiralal
Gnaeshmal Jain v. State of Maharashtra (1992), the judges observed that
even the obiter dicta of the Supreme Court will be binding on them;
however, if the point of issue on which the decision is being made already
has a direct decision of the Supreme Court but there also exists an obiter
dicta of the Supreme Court on the same issue but contrary to the direct
decision, then the authority of the direct decision will prevail over the
obiter dicta. To put it more simply, even though the obiter dicta of the
Supreme Court may have a binding effect, they cannot override the direct
findings of the Supreme Court itself.

Furthermore, not every opinion of the Supreme Court would be binding on

the High Court. This was held in the case of Mohandas Issardas & Ors.
v. A. N. Sattanathan & Ors. (1955), where the Court clarified that the only
opinions that would be binding on the subordinate courts were those that
were given by the Supreme Court on the question that was put forth for
the Supreme Court to decide, even though that question ultimately was
not crucial to the final decision.

What is binding under Article 141

“What is binding is the ratio of the decision and not finding on facts, or the
opinion of the Court on any question which was not required to be decided
in a particular case. The law that will be binding under Article 141 would
extend only to the observations on the points raised and decided by the
Court in a case. Therefore, as a matter of practice, the court does not
make any pronouncement, particularly in Constitutional matters, on the
points not directly raised for its decision. The general principle of law laid
down by the Supreme Court is applicable to every person including those
who are not a party to that order.

In other words, it is the principle underlying a decision that is binding.

While applying the decision in a later case, therefore, the later court
should try to ascertain the true principle laid down by the provisos
decision, in the context of the question involved in that case from which
the decision takes its colour.

In this background, the following are some of the areas identified by the
researcher to determine the scope of research and of the doctrine of
precedents under the Constitutional framework of India.

“A decision is binding not because of its conclusion but in regard to its

rationale and the principle laid down therein.” [J. J. Sharma Rao Vs Union
territory of Pondicherry]

“In the hierarchical system of Courts. It is necessary for each lower-tier to

accept loyally the decision of the higher tiers. It is inevitable in the
hierarchical system of Courts that the decisions of the Supreme Appellate
Tribunal do not attract the unanimous approval of the judiciary. But the
system only works if someone is allowed to have the last word, which
once spoken, is loyally accepted.”[Caspel Co, Ltd v. Broome ]

There are significant developments that happened during British India

with regard to the theory of precedents in India. In India, the Doctrine of
precedents has evolved for the necessary fulfilment of the goal of law i.e
certainty, continuity, and stability.

Types of precedents

Authoritative and persuasive precedents

According to Salmond, authoritative precedents are those that judges are

bound to follow regardless of whether they agree with the principle or not.
They are one of the major sources of law. Authoritative precedent
establishes a set of definite rules and is backed by legal force that binds
other courts to follow it.

Persuasive precedents, as the name suggests, are judicial precedents that

merely have an element of persuasion attached to them. They do not
have any legal force or authority that obligates the courts to follow them;
rather, it is left to the discretion of the courts to take into consideration
the effect of such precedents. They do not directly establish any law but
could lay the groundwork for an authoritative precedent that might be
established later.

For example, in the English legal system, only the decisions of the
superior courts of justice are authoritative precedents whereas in
American, Canadian, or Irish courts the decisions laid out are merely
persuasive precedents.

Absolute authoritative and conditional authoritative precedents

Authoritative precedents are further classified as absolute authoritative

precedents and conditional authoritative precedents.

Absolute precedents are required to be followed by the courts with implicit

obedience. Absolute precedents are usually rules and decisions that are
already well settled; hence, the judges only have the duty to declare and
apply them.

Conditional precedents are those that have the authority to bind the
court’s decision, but under certain exceptions or special cases, they can
be disregarded. This happens when certain legal decisions are
inconsistent with law and reason and are not well-settled; hence, the
judges are at liberty to dissent from or overrule them and make a new law.
However, should they overrule a conditional precedent, they must keep in
mind not to make the law uncertain.

For example, the decisions ruled by the House of Lords are absolutely
binding on the subordinate courts of England. In India, the decision of a
single bench of a high court is only conditionally binding on the other high
courts and subordinate courts, and it can be overruled or dissented by
another judge or a division bench of the same or different High Court.

Declaratory and original precedents

In a declaratory precedent, there is merely an application of a rule of law

that already exists. On the other hand, original precedents are the ones
that create new rules. These form laws for the future because of their
current application. Original precedents are the ones that develop the
legal system of a country.

Both declaratory and original precedents have equal legal authority and
have a value of their own.

“Guidelines and norms”- binding nature of precedents

In the case of Vishaka v. State of Rajasthan, the accused was alleged of

the offence of the brutal gang rape of a social worker. The three-bench
judge of the Supreme Court laid down relevant guidelines and norms as
there was no enacted law related to effective enforcement of the basic
human rights gender equality and also guarantee against sexual
harassment. The court observed that norms and guidelines should be
followed in workplaces in accordance with Article 141 of the Constitution.
Further, the court has stated that the guidelines were declared under
Article 141 of the Indian Constitution and were binding and enforceable in
law, and suitable legislation accordingly occupied the field.

This particular judgment raises pertinent questions related to the absence

of explicit provisions in the Constitution, and accordingly treaties the same
legal status as that of the domestic legislation, and it is also open to the
court to take the direct cognizance related to International conventions to
which India is a party, but the main issue arises that Parliament has not
yet enabled legislation and to invoke the aid of such conventions or
treaties as a basis for a liberal interpretation of the fundamental rights
provisions? It is also not clear as to what is the scope of power of the
Supreme Court under Article 141 of the constitution read along
with Article 32.

The Kerala State Backward Classes ( Reservation for Appointment for

Posts in Services under the State) Act, 1955 which has retrospectively
validated the law contained in the relevant statutory declaration that no
creamy layer must exist in the state. This particular provision was
accordingly held unconstitutional by the Supreme Court. In the case
of Indira Sawhney v UOI, the court gave a decision for the exclusion of the
creamy layer in classes from reservation benefits in accordance with
Article 141 of the Indian Constitution. Hence, the apex court was justified
in declaring the above mentioned Kerala act as unconstitutional.
In another case of H.P. v. Nurpur (P) Bus Operation Union, the provision
to Section 4 of the Himachal Pradesh Passengers and Goods taxation Act,
1995 is unlawful in nature. However, if at all, doctrine of prospective
overruling is applied, the proviso which has been directed that collections
already made on the basis of such proviso shall not stand invalidated.
When it was applied in the Supreme Court of India it was duly held that
the directions given by the High Court were improper since the doctrine of
Prospective overruling is only available to the Supreme Court not to the
High Courts.

General principles (to be added right before ‘guidelines and norms –

binding nature of precedents’)

1. The decisions of the superior courts absolutely bind the inferior

courts, and they are obligated to follow them.

2. The Supreme Court is not bound by it’s own decisions, and it has the
liberty to depart from them if necessary.

3. The decision put forth by one high court does not constitute a
binding precedent over another.

4. The high courts or the other subordinate courts do not have the
power to rule out the decisions of the Supreme Court.

5. A Bench with a lesser quorum cannot dissent from the decisions of a

larger quorum.

Conditions which destroy or weaken binding force of precedents

The authority of precedents comes from the presumption that judicial

decisions are correct. However, there are certain exceptions that
undermine this premise and weaken or destroy the binding force of the
precedents.

Abrogated decision

If a judicial decision is found to be inconsistent with a statute or statutory

rule that is subsequently enacted, or if it is reversed or overruled by a
higher court, then such a decision loses its binding authority. A decision is
reversed when it is challenged on appeal in the appellate court. And a
decision is said to be overruled when a higher court declares that the
precedent case was wrongly decided and, hence, should not be followed
anymore.

Affirmation or reversal on a different ground

Another situation in which the binding force of a precedent is weakened is

when the decision is appealed and the appellate court affirms or reverses
the decision on a different ground or point of law. Often, the decisions of
the lower courts, for example, are affirmed on a different ground by the
higher court, which deprives the precedent of its authority completely.
This is done because the higher court might not have agreed to the
grounds on which the decision was formed, or maybe simply because
shifting the decision to a different ground provided an easier way to
decide a case or reach a conclusion.

Ignorance of statute

Ignorance of a statue is a grave mistake that completely destroys the

authority of a precedent. If a precedent was established by a court by
completely ignoring a statute or failing to recognise its relevance, such a
precedent will not have any binding force. Even a lower court can
disregard such a precedent on this ground.

Inconsistency with earlier decisions of a higher court

A precedent ceased to have any binding authority if the court that decided
it failed to acknowledge relevant decisions given by a higher court. In this
case, the precedent will be rendered inconsistent with the decision laid
down by the higher court. For example, if the High Court of Madras
decides a case while ignoring the already existing relevant decision taken
by the Supreme Court, the decision of the High Court will become
inconsistent with the rule of the Supreme Court and hence will not bind
any other courts to follow its decision.

Inconsistency between earlier decisions of the same rank

When there are two decisions given on a legal issue by the same court or
by different courts of the same rank that are in conflict with each other,
the court is not bound to follow them. The appellate court and other lower
courts are free to choose which decision they want to follow. It can either
follow the latest decision on the premise that it was recently decided or it
can refuse to follow it altogether on the basis of it being arrived at ‘per
incuriam’ (with carelessness or disregard for law or fact).

Precedents sub silentio or not fully argued

If a decision is made in a case where a particular point was not noticed

and was not argued by any counsel, a rule formed in such a case shall not
be binding since, had that point been fully argued by the counsels, the
decision of the court in that case could have been overturned in favour of
the other party.

However, recently, it has been stated that a precedent cannot be

destroyed merely because an argument was badly argued or fallaciously
reasoned. Rather, a line has to be drawn between the total absence of an
argument on a crucial point and an inadequate argument. In K. Balkrishna
Rao v. Haji Abdulla Sait (1980), the Supreme Court stated that the binding
force of a precedent does not depend on whether a particular argument
was made or not, unless the point for which the argument was advanced
was decided by the SC previously.

Decisions of equally divided courts

If the bench of an appellate court is equally divided about a judicial

decision being appealed, the common practice in the House of Lords was
to dismiss the appeal altogether. However, this is not a problem these
days, as the Benches constitute an uneven number of judges.

Erroneous decisions

Sometimes the decisions of the courts can be based on the wrong

principles and might be in serious conflict with the fundamental principles
of the common law. In such situations, though logic suggests that the
courts should be free to disregard such decisions, practical considerations
require the courts to stick to these decisions just so that certainty of legal
principles does not have to be sacrificed. However, they can overrule
these decisions in some cases where these erroneous decisions have been
used for a long time and have thus caused injustice to the people.

The House of Lords in London Transport Executive v. Betts (1959), held

that the House of Lords can disregard a prior decision on its own if it
clashes with the fundamental principles of common law. Similarly, the
Supreme Court of India has also given a similar judgement, in Bengal
Immunity Co. Ltd. v. State of Bihar, that the Supreme Court can depart
from its previous decision if it is satisfied of its error and could gravely
impact the interest of the public.

Shah Bano case

In the case of Mohd. Ahmed Khan v. Shah Bano Begum, it was held that
the Supreme Court’s interpretation of religious texts is a binding
precedent. The apex court held after finding out what were the important
rights of Muslim divorced women which were not there properly in the
original texts or any other material. Such an interpretation of religious
texts by an earlier Constitutional Bench done by the apex court was held
to be binding in Danial Latifi v. Union of India.

Further, it was not open to the court for re-examining the position any
longer because already a Constitution of the Supreme Court had
accordingly declared the law after considering the Suras 241-242 of
Chapter II of the holy book of Quran and also the other relevant material
available. Moreover, the court even elaborated on the fact that the Muslim
Women ( Protection of Rights and Divorce) Act, 1986 which actually
codifies the law as stated in the Shah Bano’s case. The fundamental
purpose of the act is to allow the Muslim husband so that he can retain his
freedom of avoiding payment for maintenance to his erstwhile wife after
the divorce and also after the period of iddat.

The apex’s court decision in cases of Shah Bano case and Danail Latifi
case upholds the importance of precedent as well as the law which has
been declared by the Supreme Court by way of interpretation of the
religious texts, especially when there are several interpretations available
in order to explain the meaning of the texts.

Binding on Tribunals

The apex court had even insisted that the tribunals also must follow the
doctrine of precedent. Moreover, a tribunal is also bound by law which is
laid down by the High Court and the Supreme Court.

Judicial power

The apex court in the case of Paramjit Kaur v. The State of Punjab went a
step forward in order to expand the powers laid down under Article 141 of
the Constitution. In order to enquire about the extrajudicial killings in the
State of Punjab, the Supreme Court issued direction to the National
Human Rights Commission.

Therefore, the jurisdiction of such a Commission came into question in

reference to the statutory limitations and obligations of the respective
Commission. The apex court accordingly held that by its orders and
directions it can confer jurisdiction on a particular body beyond the
purview of the Jurisdiction.

Binding nature of directions and Res Judicata

The Supreme Court’s decision which is neither without Jurisdiction nor

against the principles of natural justice or any relevant provisions under
the constitution of India is bound to become a binding decision and hence
operates as Res Judicata. Moreover, such a decision is also not open to the
Supreme Court in accordance with Article 143 of the Constitution as it
would be impractical and would lead to appeal over its own decisions.
Such a decision can be reviewed only under Article 137 of the
constitution which is to be read with Order 401 of Supreme Court Rules,
1966].

Further, in the case of Director of Settlements, A.P. v. M.R.

Appanrao wherein the apex court affirmed the decision stated in Shenoy
& Co. case and accordingly stated merely because of the principles of Res
Judicata has not been considered in any particular case, still, it could be
relevant ground for reconsideration of the Judgement by the larger bench
of the Supreme Court.

Reporting a particular case as a precedent

The courts over the years have been stating that if at all the Supreme
Court had a decision in which it did not declare any principles of law, but
had given the directions for the communication in special circumstances,
the High court which is subordinate should find the ratio decision given by
the apex court and also ascertain the law so declared from a careful
reading of the decision before it tends to apply in other cases.

If at all, the High Court is exercising statutory power under the criminal
law it could not assume itself the powers and jurisdiction to exercise the
function of the Supreme Court. In terms of reporting a case as though it
may be constituted as a precedent, for further guidance, it is not proper
on the part of Editors of Law Reports.

What is doctrine of stare decisis

The Latin term “stare decisis” is short for the phrase “stare decisis et non
quieta movere”, which translates to “to stand by decisions and not disturb
settled matters”. Initially, the doctrine of stare decisis did not exist. Later
on, in 1833, in the case of Mirehouse v. Rennel (1833) Chief Justice Park
remarked that there is an “urgent need for recognising the binding force
of precedents”. This decision later led to the establishment of the doctrine
in the legal system of England and subsequently in India. In India, Article
141 of the Constitution recognises the doctrine of stare decisis. The
doctrine of stare decisis establishes that the subordinate courts are bound
to follow the decisions pronounced by the higher courts while dealing with
cases with similar legal issues. Essentially, its aim is to promote and
strengthen the binding nature of judicial precedents so that there can be
certainty and stability in the application of the law and in deciding legal
issues. Hence, one main function of the doctrine is to establish certainty
and coherence. In the case of Minerva Mills v. Union of India (1980), the
Supreme Court said that “certainty and continuity are the essential
ingredients of the rule of law”. It remarked that, in case a longstanding
precedent established by the Apex Court suddenly gets overruled, the
application of law would be afflicted by uncertainty and confusion.
However, certain judgements clarified what can be done in case a Bench
does not agree with the decision of another Bench. In the case
of Sheshamma v. Venkata Rao (1940), the Madras High Court held that if
one Division Bench does not accept the decision of another pertaining to a
question of law, then the matter should be referred to a Full Bench. This
was reiterated again in the case of Yedlapat Venkateswarlu v. State of
Andhra Pradesh (1978), where the High Court said that one Bench should
not proceed to express contrary views to those of another Division Bench
without referring the matter to a Full Bench first.

The doctrine of stare decisis is based on expediency and public policy. It is

generally followed by all the courts, but it is not applicable in all cases,
since sometimes if a wrong decision has been pronounced and the court is
satisfied that it should not continue to be followed, it has to depart from
its application. In Maktul v. Manbhari (1958), the Court held that if the
validity or correctness of a decision is being challenged over and over
again or has been reversed by the Privy Council itself, then the doctrine of
stare decisis will no longer be applicable. The Supreme Court, in alignment
with the views of Justice Cardozo, has emphasised that it should not
engage in the rigid application of the doctrine of stare decisis and that
there should be reformulation and sometimes even revocation of a certain
rule if it does not suit or serve the social consciousness of the hour.
Additionally, it is the duty of the judges to understand the need of the
hour and interpret the rules accordingly.

Stare Decisis and Precedents

The apex court in the catena of cases stated that “ when a precedent is
recognized for a long period of time it matures into a stare decisis. The
Supreme Court explained “it is not everything stated by a Judge while
pronouncing a judgment that constitutes a precedent, the only thing in
the decision binding upon the lower courts or a party is a principle on
which the case has been decided. Therefore for a reason, it is pertinent to
analyze the decision and isolate it from the ratio decidendi. According to
the well-settled principles of the law, there are three postulates that every
basic decision can comprise. They are:

I. Finding the proper material facts, whether direct or inferential. An

inferential finding of a particular fact which a judge draws from perceptible
or direct facts.

II.The statements of the relevant principles of law which are stated

applicable to legal principles disclosed by the facts.

III. The judgment stated is generally a combined effect of the above-stated

postulates.

Moreover, in the case of ICICI Bank v. Municipal Corporation of Greater

Bombay stated that the decision given by the apex court must be read in
accordance with the context of the statutory provisions which have been
interpreted by the competent court. It has been stated that no judgment
can be read if it’s a statue. Moreover, the law cannot afford to be always
static in nature. Therefore, based on the relevant principles the Judges
must apply intelligent techniques in order to use the precedents.

High Court cannot overrule the Supreme Court’s Decision

In case of Suganthi Suresh Kumar v. Jagdeesham, the apex court of the

country duly stated that it is impermissible for the High Court to overrule
the decision given by the Supreme Court merely on the ground that the
decision stated by the Supreme Court laid down principles without
considering any of the legal points.

Moreover, in the Pandurang Kalu Patil v. State of Maharashtra, the

supreme court had even stated that the decisions of the High court will be
binding until and unless the Supreme Court overrules them.

Important Judgements

In the case of Director of Settlements, A.P. v. M.R. Appanrao wherein the

apex court affirmed the decision stated in Shenoy & Co. case and
accordingly stated merely because of the principles of Res Judicata has
not been considered in any particular case, still, it could be relevant
ground for reconsideration of the Judgement by the larger bench of the
Supreme Court.

In the case of ICICI Bank v. Municipal Corporation of Greater Bombay it

was stated that the decision given by the apex court must be read in
accordance with the context of the statutory provisions which have been
interpreted by the competent court. It has been stated that no judgment
can be read if it’s a statute. Moreover, the law cannot afford to be always
static in nature. Therefore, based on the relevant principles the Judges
must apply intelligent techniques in order to use the precedents.

Moreover, in the Pandurang Kalu Patil v. State of Maharashtra the

supreme court had even stated that decisions of the High court will be
binding until and unless the Supreme Court overrules them.

in the case of Paramjit Kaur v. The State of Punjab went a step forward in
order to expand the powers laid down under Article 141 of the
Constitution. In order to enquire about the extrajudicial killings in the
State of Punjab, the Supreme Court issued direction to the National
Human Rights Commission. Therefore, the jurisdiction of such a
Commission came into question in reference to the statutory limitations
and obligations of the respective Commission. It was duly held by the
apex court that the Supreme Court referred to the matter when referred to
the commission when made in exercise of the plentitude of its appropriate
jurisdiction. The apex court accordingly held that by its orders and
directions it can confer jurisdiction on a particular body beyond the
purview of the Jurisdiction.

In Vishaka v. State of Rajasthan, the accused was alleged of the offence of

brutal gang rape of a social worker. The three-bench judge of the Supreme
Court laid down relevant guidelines and norms as there was no enacted
law related to effective enforcement of the basic human rights gender
equality and also guarantee against sexual harassment. The court
observed that norms and guidelines should be followed in workplaces in
accordance with Article 141 of the Constitution. Further, the court has
stated that the guidelines were declared under Article 141 of the Indian
Constitution and its binding and enforceable in law, and suitable
legislation accordingly to occupy the field.

In Mohd. Ahmed Khan v. Shah Bano Begum, it was held that the Supreme
Court’s interpretation of religious texts is a binding precedent. The apex
court held after finding out what were the important rights of Muslim
divorced women were not there properly in the original texts or any other
material.

Lalu Jela and Ors. v. State of Gujarat (1962)

In this case, five accused appealed jointly to the High Court against their
conviction by the Sessions Judge under Section 410 of the CrPC. Section
419 specifies that appeals should be in the form of a written petition, and
under Section 431, these appeals are to be made separately by different
accused persons. Section 419 and related provisions allow for only
separate appeals of the accused and not joint appeals; however, a
previous Division Bench ruled that multiple convicted persons can file a
single joint appeal, and this rule is being contested here. Thus, the
question in this case pertains to whether multiple convicted individuals
should file separate appeals or a joint appeal and whether the
observations of the Supreme Court are a declaration of law binding on all
the subordinate courts under Article 141 of the Constitution. The Court
observed that the interpretation of the Division Bench allowing joint
appeal was inconsistent with the principles established by Section 419.
The Division Bench’s decision conflicted with the legal provisions of the
CrPC, and emphasised on the binding nature of the Supreme Court’s
decisions under Article 141 of the Constitution, and dismissed the validity
of filing joint criminal appeals in this case.

D. Navinchandra & Co. v. Union of India (1989)

It was held that any judgement of the Supreme Court cannot, as such, be
taken as a precedent. In this case, the issue placed before the Bombay
High Court was whether a judgement pronounced by the Supreme Court
in which it made an observation saying that it should not be treated as a
precedent due to having unique facts and circumstances, even if issues
might be similar, should be considered binding or not. The High Court of
Bobay ruled that even though there is such an observation made by the
SC in the judgement, the facts and circumstances of both cases are
similar, hence its decision would still be treated as a precedent.

Shankar Raju v. Union of India (2011)

In this case, the petitioner, who was a judicial member of the Central
Administrative Tribunal, seeks relief under Article 32. He had already
completed two terms of five years each and had re-applied for the same
position due to the vacancy. But his application was rejected as he had
already completed his tenure of 10 years; this ground for rejection was
challenged by the petitioner. The Administrative Tribunals Act, 1985, was
amended in 2006, which limited the total term of a member. But in the
case of A.K. Behera v. Union of India (2010), two judges upheld the
validity of the amendment while one judge concluded it to be
unconstitutional and arbitrary. The Court upheld the decision in the
previous case and the constitutionality of the provision limiting the tenure.
It held that the precedents apply to the current case and that the
provisions do not undermine the security of tenure.

Recent judgments

Proteck India Info Services Pvt. Ltd. v. Commissioner, CGST, & Central
Excise, New Delhi (2021)

In this case, the appellant was an exporter of taxable services and also
received various services for which they paid taxes and took credit.
However, they could not use their cenvat credit because their exports
were not taxable; hence, he filed for a refund. But the appellant received a
cause notice reasoning that he had not debited the refund claim amount
from their cenvat credit at the time of filing, thereby not fulfilling the
condition laid out in No. 2(h) of the notification. The central issue in this
case revolves around the question of whether it was valid on the part of
the Commissioner to reject the refund claim due to the appellant’s failure
to debit at the time of filing. The tribunal held that the Commissioner had
misinterpreted the rule by ignoring the ruling of the Supreme Court in the
case of Hari Chand Shri Gopal & Ors (2010). and disregarded the principle
of substantial compliance laid out by the Supreme Court in that decision,
hence violating Article 141. The action of the Commissioner was held to
be a form of judicial indiscipline and a violation of Article 141 of the
Constitution. Therefore, the Commissioner’s action was held to be
incorrect, and the appeals were allowed.
R. Anitha & Ors. v. State of Telengana & Ors. (2019)

The petitioners were about to join the Telangana State Judicial Service as
Junior Civil Judges. However, their eligibility was challenged under Rule
5(2)(a)(i) of the Telangana State Judicial Service Rules of 2017 along with
a notification issued by the Registrar (Administration) of the High Court of
Telangana. The petitioners argued that the rule and notification directed
that they must have a minimum of three years experience as practising
advocates, but the Supreme Court, in its judgement in All India Judges
Association v. Union of India (2002), declared this rule to be
unconstitutional. The respondents contended that Article 235 of the
Constitution granted the High Court the authority to prescribe eligibility
criteria for the recruitment of judges. However, the High Court of
Telangana upheld the contentions of the petitioner and decided that all
the courts were duty bound to follow the decisions taken by the SC under
Article 141; hence, the imposition of the Rule by the Bar was held invalid
and unconstitutional.

Suggestions

1. The doctrine of precedent as recognized under the constitution is an

instrument of certainty, creativity, and predictability of Judicial
interpretation of the statue, but while overruling its own decisions
the courts need to be more cautious.

2. That the High Court acts as an intermediary between Supreme court

and the subordinate courts needs to be more careful that their
decisions must be in accordance with the decisions of the Supreme
Court and should act with utmost care that their decisions should
not be reversed in the Supreme Court as it affects lot many cases
decided in the lower court relying on the decisions of the High Court.

3. The High Court must not take a different view from the view taken
by their counterparts in other states, this persuasive value attached
to the precedents needs to be minimized bypassing decisions at
High Court taken into account passed by the other High Courts.

4. Minimum accountability should be fixed on the Judges and

advocates of the lower court and subordinate court who failed to
bring out to the notice of the court or who passes the order in
ignorance of the law laid down by the Supreme Court of India.

5. While deciding cases, reportable judgment, the Supreme Court

should also specifically write the ratio of the cases.

6. The very recognition of the principles of the sub-silento and per-

incuriam gives liberty to the superior courts to pass the orders
 carelessly, the recognition of these principles must be challenged by
the supreme court itself.

7. While differentiating with the earlier decision, the Court must not
partially overrule a judgment but must decide on all the aspects a
fresh one, this will result in completely overruling the judgment and
there will be no place for any confusion. No partial overruling should
be done.

8. Taking into account the decisions of the international courts while

developing principles of jurisprudence in the country is good for the
continuous growth of the judiciary but this should be done in a
predetermined manner. The authority attached to the decisions of
international forums and Courts should be declared in advance.

9. The law laid down under Article 141 of the Constitution is no less
important than the law laid down by the parliament that should be
scrupulously observed by the executive wing of the state. Thus, I
would like to conclude with the words of Chandrachud. C.J.
said in Deena v. Union of India “Any case, even a locus classicus, is
an authority for what it decides. It is permissible to extend the ratio
of a decision to cases involving identical situations, factual and
legal, but care must be taken to see that this is not done,
mechanically, that is, without a close examination of the rationale of
the decision cited by the precedent”.