With the advancement of law, the doctrine of precedent has become an integral part of the judicial discipline. The doctrine of precedent is a cardinal principle of the hierarchical nature of the judicial system. When a decision is rendered by a forum of superior or concurrent jurisdiction while adjudicating the rights of the parties to a lis embodying a declaration of law, it operates till such time that it is unsettled as a binding principle for future cases, such feature leads to the development of jurisprudence. A judgment as precedent carries the weight of what it actually decides and not matters on the periphery.
A precedent is a judicial decision containing principle, which forms an authoritative element termed as ratio decidendi. The Court should restraint in dissenting or overruling for the sake of stability and uniformity but rigidity beyond reasonable limits becomes inimical to the growth of law. Article 141 of the Constitution of India[1] stipulates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The doctrine of precedent is a principle of following previous decisions of the Court within its well-defined limits, it significantly declares that cases must be decided in same way when the material facts are the same as it becomes “ratio decidendi”, in contradistinction to a binding precedent, the Court has to be careful about the “obiter dictum” made by the Court in the judgment as certain obiter dictum have persuasive value but they do not have any binding force. “Obiter dictum” is a mere saying by the way, a chance remark, which is not binding on the future courts, though it may be respected according to the reputation of the Judge, the eminence of the Court and the circumstances in which it came to be pronounced. The reason for not regarding an “obiter dictum” as binding as it was probably made without a full consideration of all the consequences that may follow; or the Court might not have expressed a concluded opinion.
An interim order does not finally and conclusively decide an issue, such order cannot be a precedent. The reasons normally assigned in support of such non-final interim order may only contain prima facie findings, are only tentative. The interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. Thus, the interim order passed by a court is not a precedent for other cases.
The following words of Lord Denning in the matter of applying precedents have become locus classicus.
- … Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.[2]
Different courts sometimes pass different interim orders as the courts deem fit. It is a matter of common knowledge that the interim orders passed by particular courts on certain considerations are not precedents for other cases which may be on similar facts.[3] A decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence, here and there from a judgment and to build upon it.[4]
In the matters of interlocutory orders, principle of binding precedent will not apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach.[5]
It is necessary to follow the law declared by the Supreme Court and a judgment of the Court has to be read in 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 an effect of a binding precedent but it cannot be denied that it is of considerable weight.[6] The High Courts have no power, like the power available to the Supreme Court under Article 142 of the Constitution of India, and merely because the Supreme Court granted certain reliefs in exercise of its power under Article 142 of the Constitution of India, similar orders could not be issued by the High Courts.[7]
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.[8]
The judgments of the High Court would bind the trial courts. If an unnecessary reference to a judicial precedent or erroneous submission in law is made, the Judge considering the matter would reject the reliance thereon or the submission made. However, certainly reference to a judicial precedent cannot be termed a contumacious act.[9] Exposition of law and ratio decidendi, to be accepted as a binding precedent, should be based on issues raised and argued by both sides. A mere observation without reasons is distinguishable, from a ratio decidendi.[10] Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.[11]
In my humble view it is always crucial to read the judgment in entirety to understand the principle of law and ratio decidendi that has been laid down, considering the questions that arose for consideration in the case. Observations made in one paragraph of the judgment cannot be considered as law laid down in the judgment when no reasons given in other paragraphs for the same. The ratio of a judgment has a precedential value and it becomes obligatory on the part of the Court to cogitate on the judgment to the facts exposited therein and the context in which the questions had arisen and the law has been declared. The judgments of the Court are not to be read as statutory instruments and its ratio has to be culled out, keeping in view the facts and circumstances involved in a particular case.
With utmost respect if the Court has arrived at a conclusion without application of mind or preceded without any reason, then it cannot be deemed to be declaration of law to be binding as a precedent. It also becomes duty of the Court to consider the effect of the precedent in question to form its own opinion instead of wholly relying upon the gloss placed from other decisions.
† Advocate, Madras High Court, e-mail: sunilprakashlaw@gmail.com.
[1] <http://www.scconline.com/DocumentLink/8bvjrn3W>.
[2] K.T.M.T.M. Abdul Kayoom v. CIT, 1962 Supp (1) SCR 518.
[3] Empire Industries Ltd. v. Union of India, (1985) 3 SCC 314 :
[4] State of Orissa v. Sudhansu Sekhar Misra, (1968) 2 SCR 154.
[5] Vishnu Traders v. State of Haryana, 1995 Supp (1) SCC 461.
[6] Director of Settlements v. M.R. Apparao, (2002) 4 SCC 638.
[7] State of Punjab v. Surinder Kumar, (1992) 1 SCC 489 : 1991 Supp (3) SCR 553.
[8] Union of India v. Bahadur Singh, (2006) 1 SCC 368.
[9] Court on its Own Motion v. Jayant Kashmiri, 2017 SCC OnLine Del 7387
[10] Union of India v. P. Shyamala, 2017 SCC OnLine Mad 6715
[11] State of Haryana v. AGM Management Services Ltd., (2006) 5 SCC 520.