The doctrine of stare decisis
Stare decisis is the policy of the court to stand by precedent. It literally means "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which implies "to stand by decisions and not to disturb settled matters".The doctrine of precedent refers to the doctrine that the court is to follow judicial decisions in earliar cases, when the same questions or points are raised before it in subsequent matters.
According to Salmond, the phrase ‘the doctrine of precedent’ has two meanings. In its loose sense, it means that precedents are reported, may be cited and will probably be followed by courts. In strict sense, it means not only that a precedent has great authority but in certain circumstances, courts are bound by previously decided cases. Thus, what a court really does is to apply principles or decisions laid down in past.
It may be mentioned here that what is binding in judicial decision is not the entire decision but the reasons or principles based on which a decision is reached or the ratio decidendi. The ratio decidendi (reason of deciding) of a case can be defined as the material facts of the case plus the decision thereon.
In Halsbury’s Laws of England it has been observed that ratio decidendi are the general reasons given for a decision or the general grounds upon which it is based, detached oe abstracted from specific peculiarities of a particular case which gives the rise to a particular decision. Similar observations have been made in Krishna Kumar v. Union of India. Broadly there are two tests for determining the ratio of the case, i.e, the Wambaugh test and Goodhart test. According to the Wambaugh test, also known as the reversal test, the proposition of law put forward by the judge should be reversed or negated and if the reversal would alter the actual decision, that proposition is the ratio decidendi of the case. The Goodhart test involves taking into account facts treated as material by the judge who decided the case cited as precedent.
Glanville Williams is of similar view that the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon. He describes the doctrine in practical terms; ‘What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned’.
In Municipal Corporation of Delhi v. Gurnam Kaur, the court took the observations from the House of Lords Decision in F.A. and A.B. Ltd. v. Lupton, that what constitutes a binding precedent in a case is the ratio decidendi which is almost always to be ascertained by an analysis of the material facts.
The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided – essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion – all pronouncements that do not form a part of the court’s rulings on the issues actually decided in that particular case (whether they are correct statements of law or not), are obiter dicta, and are not rules for which that particular case stands.
The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a superior court is binding precedent (also known as mandatory authority) which an inferior court cannot change. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one which courts can and do ignore occasionally.
Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge's reputation may affect the degree of persuasiveness of the authority.
The doctrine of stare decisis or the doctrine of precedent is essentially a feature, of comman law systems such as England, the United States, India and Australia. However, the concept of precedent was not completely absent prior to its development in that country. Infact, in Rome, even during the time of Justinian, precedent was recognized as having a persuasive value though it was not considered to be binding. Prior to this period, precedent was considered binding. The Emperor Septinus Severus considered the authority of an uninterrupted series of decided cases as having the authority of a statute.
The Position in England
In England, most of the law in certain fields such as torts, developed entirely on the basis of prior decisions. In fact what is known as comman law has developed wholly from judicial pronouncements. As noted by the Supreme Court in Waman Rao and Ors v. Union of India, the doctrine of stare decisis is the basis of comman law. The doctrine of stare decisis has essentially developed as a result of progress made in law-reporting. In beginning, there was no doctrine of stare decisis as there was no reporting of the decisions of the courts in England. The origin of reporting of decisions in England can be traced back to 17th century when the decisions of Exchequre Courts came to be reported and were giving binding force. In 1833 Chief Justice Park reterated the need for recognizing the binding force of precedents in the historic decision in Mirehouse v. Rennel, later, with the establishment of the supreme court of judicature by the Acts of 1873 and 1875 the doctrine of stare decisis was firmly established. A Heirarchy of courts which is also a pre condition for the stare decisis was established along with the above said Acts.
In England, while initially precedents were considered as guiding principles, with the doctrine of binding precedent developed and around the 20th century it was completed in some respects.
The decision in London Street Tramways Co. Ltd. v. London County Council made the decisions of House of Lords binding on the House of Lords itself. A similar view had been taken in an earlier decisions Attorney general v. Dean of Windson wherein Lord Campbell observed that the House of Lords is the court of appeal of last resort and its decisions are authoritative and conclusive declarations of the existing state of law and binding on itself as much as they are on all inferior tribunals. This, however, was an impediment to the development of law according to the needs and requirements of society. In 1966, this position was cured through the Practice Note issued which provided that while former decisions of courts would be normally treated as binding, they may be departed from when it appears right to do so.
In so far as the court of appeal are concerned, the Courts of Appeal are bound by the decisions of House of Lords as well as their own previous decisions. In a 1944 decision in Young v. Bristol Aeroplane Co. Ltd., it was held that the Court of Appeal would be bound by its own decisions. There are, however, exceptions to this decision. The Court of Appeal would not be bound by its own decisions where (i) a decision though not expressly overruled, cannot stand with the decisions of the House of Lords; (ii) where it is satisfied that a previous decision is per incurium and; (iii) where there are two conflicting decisions of its own. The divisional courts are also bound by decisions of higher forums as well as by its own decisions. So, a precedent is a statement made of the law by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The House of Lords however does not have to obey its own precedents.
As far as the decisions of European Court of Justice are concerned, its decision are not binding on itself though it does follow its previous decisions. The decisions of European Court of Human Rights are not binding on itself, but as in the case of the European Court of Justice, it does apply and follow them.
Reasons behind the Doctrine of Stare Decisis
The basic reasons behind the doctrine of stare decisis is the maintenance of consistency and certainty. Certainty, predictability and stability in law are considered to be the major objectives of the legal system, and the doctrine of stare decisis aims at achieving these objectives.
In Hari Singh v. State of Haryana, it was noted that it is true that in the system of justice which is administered by courts, one of the basic principles to be kept in mind that the courts of co-ordinate jurisdiction should have consistent opinions in respect of similar sets of facts and circumstances or question of law. If opinion given on identical facts are inconsistent, instead of achieving harmony in the judicial systems, it will lead to judicial anarchy. The view that has held the field for a long time must not be disturbed merely because of the possibility of another view.
Stare decisis in civil law systems
Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to Stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedents established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedents by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.
Doctrine of Precedent: Pros and Cons
A number of commentators have explored the pros and cons of the doctrine of stare decisis. Supporters of the system, argue that obeying precedent makes decisions "predictable." Another advantages of this doctrine, as mentioned earliar is that it brings certainty, stability and consistency in law. It also saves time and energy of judges as they are not required to determine the same question of law over and over again once it has been settled. As noted by Bodenheimer, the doctrine also plays a role in curbing arbitrariness on the part of judges as they are bound to follow established precedents thus preventing bias and error. The doctrine brings flexibility in law and law is shaped according to the social, economic and other circumstances. However, critics argue that stare decisis is an application of the argument from authority logical fallacy and can result in the preservation and propagation of cases decided wrongly. Another argument often used against the system is that it is undemocratic as it allows unelected judges to make law. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed.
Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. Another factor is that the doctrine of binding precedent can in a sense hinder the development of law. Society is not static and there are changes in social, economic and other circumstances with time. Changed circumstances may require a different interpretation of law.
Exceptions to the doctrine of Stare Decisis
The doctrine of stare decisis requires subsequent courts to abide by the decisions of prior courts, whenever similar of identical questions of law as were decided by the prior courts arise before them. The rule is not absolute. In Bachhan Singh v. State of Punjab, it was observed that the rule of adherence to precedents is not a rigid or inflexible rule of law, but is a rule of practice adopted by courts in order to provide uniformity and stability in the law. Where for instance, there is a change in the statutory provision on which the prior decision was based, the prior decision would no longer be a binding precedent. Also, where a particular decision or set of decisions have been overruled again, the decisions would not have a binding force. Other exceptions i.e., situations where a prior decision would not be binding on a subsequent court, include decisions per incurium and decisions sub silentio. In Maktul v. Mst. Manbhari and Ors, it was observed that the rule of stare decisis is not an inflexible rule and is inapplicable where the decision is clearly erroneous and where its reversal does not shake any titles or contracts or alter the general course of dealing.
Per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision. In loose sense, it means through
inadvertence or through want of care. The per incuriam rule is a well-established technical rule; but you must be careful here. Per incuriam does not simply mean the earlier court got things wrong. It only means there was a significant oversight. A decision is per incuriam need not be relied upon as precedent.
The court is not bound by its own decisions found to have been made per incuriam. The fact that the case being examined had weaknesses in argument, or in the judgment, does not make the decision per incuriam. Thus in Morelle v Wakeling, Lord Evershed MR limited the use of the per incuriam rule to cases where:
· there was ignorance of authority which would have been binding on the court; and
· that ignorance led to faulty reasoning.
The and is very important. It means, it was observed during this case that as a general rule, the only cases in which decisions have been held to be per incuriam are those given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the courts concerened, so that in such cases, some features of the decisions or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. A similar view was taken in Duke v. Reliance systems Ltd. Indian courts have also expressed like opinions in this regard. In Municipal Corporation of Delhi v. Gurnam Kaur, it was held that decisions per incurium are those that have been rendered in ignorance of the terms of the statute and of a rule having the force of a statute. Raghavachari notes that in cases where a court may have been aware of the decision but did not refer to the same or did not appreciate its relevance would be hit by per-incurium some commentators have also taken the view that judgments which are the result of a manifest error or step would also constitute per incuriam. In Sardari lal Gupta v. Sri Krishna Agarwal, a decision was held to be per incurium on the ground that it was based on English law and had ignored the position in Indian law. As quoted in Halsbury`s Laws of England, a decision should not be considered to be per incurium, merely due to deficiencies on behalf of parties, and merely as the best possible argument has not been advanced. In State of Bihar v. Kalika kaur@ Kalika Singh, it was noted that unless it is a glaring case of obtrusive omission, it is not reasonable to depend upon the principle of per incurium judgments.
It is a latin word which means under silence or without any notice being taken. Precedents that pass sub silentio are of little or no authority. This is an another exception to the binding precedent. A judgment said to be sub silentio when either a propostion was not the subject matter of argument during the hearing or discussion in the judgment or the proposition was assumed to be correct and the court acted upon that assumption. In Muncipal Corporation of delhi v. Gurnam Kaur , it was observed that, “ A decision passes subsilentio, in the technical sense that has come to be attached to that pharse, when the particular point of law involved in the decision is not perceived by the court or present to its mind”. For instance in a recent case, State of U.P. and ors. v. Jeet S. Bist, it was observed that in the decision in All India Association and ors. v. Union of India, while directions were given, there was no discussion on whether such direction s could be validly given by the court and thus the decision was found to have been passed sub silentio. If, however, the proposition was discussed at the time of arguments or in the judgment and thereafter a decision was reached, the same could not be said to be sub silentio English courts have in cases held that even an inferior court can ignore the decision of a superior court on the basis of the sub silentio doctrine if the conditions are satisfied.
Doctrine of Prospective over Ruling
Although the doctrine of precedent is the normal course followed, decisions that are erroneous or that do not hold good in view of challenged circumstances, may be overruled by higher forums. Prof. Laksminath notes that a decision may be overruled where it is recent or there is a divided opinion, the opinion is erroneous, the decision is unclear, causes in convenience and hardship, the error in the prior decision cannot be easily corrected by the legislative process or the decision is vague.once overruled, a prior decision is no longer a binding precedent. However, if a precedent is overruled, this may lead to the re opening of old disputes on the ground of change in the legal position and consequently, multiplicity of proceedings. By the application of this doctrine, changes in the position of law that are laid down by the court are made applicable only prospectively from the date that the change in law has been brought about by the court or from any other date specified by the Court so as not to disturb past matters that have been finally settled.
The doctrine of prospective overruling which is a feature of American Jurisprudence and an exception to the normal principles of law, was imported and applied for the first time in LC Golaknath v. State of Punjab which overruled its earliar decisions in Shakari Prasad`s case and Sajjan Singh`s case by which the first and seventeenth amendments. The court does not clearly defined the doctrine during this case. But court limited the scope of application of this doctrine by laying down “(1) The doctrine of prospective overruling can be invoked in matters arising under the constitution. (2) It can be applied only by the highest court of the country i.e, Supreme Court as it has Constitutional Jurisdiction to declare law binding on all courts in India. (3) The scope of the retroactive operation of the law declared by the Supreme court superseding its earliar decisions is left to its discretion to be moulded in accordance with thee justice of the cause or matter before it”.
The doctrine has been adopted to avoid multiplicity of proceedings, and avoid uncertainity in law. It was observed in the case of M.A. Murthy v. State of Karnataka that the doctrine of prospective overruling was a part of the constitutional cannons of interpretation.
While Golak Nath`s case, certain guidelines have been laid down as regards the application of doctrine of prospective overruling, as observed in Somaiya Organics India Ltd.v. State of U.P.
The parameters have not been adhered to in practice. It may be mentioned here that unless the court expressly makes the operation of a decision of a decision prospective, it will be retrospective in operation.
This doctrine has been applied in service matters. In Managing Director, ECIL v. B.Karunakar, the view was adopted. Prospective over ruling is a part of the principles of constitutional cannon of interpretation and can be resorted to by the Supreme Court while superceding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings and to avoid uncertainty and avoidable litigation. In other words action taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. It is for the Supreme Court to indicate as to whether the decision in question will operate prospectively. In other words there shall be no prospective over ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistencies in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of the transaction forming part of the daily affairs.
So. the concept of Prospective Overruling, as the title of the project reflects, is a deviation from the principle of retroactive operation of a decision and thus, a deviation from the traditional Blackstonian principle too. To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.e., have only prospective operation. This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned cases.
Doctrine of stare decisis in India
The doctrine of stare decisis as is understood today appears to not have existed in India during the ancient or medieval times. It is only with the establishment of British rule in the country that the concept of binding precedent came to be applicable in India. The British Rule led to the hierarchy of courts as well as reporting of decisions, i.e., the two pre conditions for the stare decisis. In 1813, Dorin suggested the adoption of the doctrine of stare decisis in India. The establishment of British Rule led to the setting up of the Sardar Diwani Adalats and the Supreme Courts at Calcutta, Bombay and Madras. In 1861, the high courts Act was enacted providing for the establishment of high Courts by issue of letters patent. Such courts had original as well as appellate jurisdiction. A hierarchy of courts was thus established.
The Government of India Act, 1935 expressly made the decisions of the Federal court and the Privy Council binding on all Courts in British India and thus gave statutory recognition to the doctrine of stare decisis. The Federal courts was not bound by its own decisions. After independence, the doctrine of precedent continues to be followed in the country. Article 141 of the Constitution of India makes the ‘law declared’ by the Supreme Court binding on all courts within the territory in India. The Expression ‘law declared’ implies the law creating role of the Supreme Court. The Supreme Court is not bound by its own decisions. In Bengal Immunity Co. v. State of Bihar the court observed that there is nothing in the Indian constitution that prevent the Supreme Court from departing from its own previous decision if it is convinced of its error and baneful effect on public interest. In so far as high court are concerned, the decisions of a High Court are binding on all subordinate courts within the jurisdiction of High Court.
While statutes and enactments of the legislature lay down the general rules to be applied in the adjudication of disputes between parties, the final authority for the interpretation of those rules are the courts. The doctrine of stare decisis makes the decisions of courts, usually the higher forums, binding on subordinate courts in cases in which similar or identical questions of law are raised before the court. The application of this doctrine ensures that there is uniformity and certainty in the law. It saves time and efforts of judges and helps in preventing arbitrary action on the part of judges. The doctrine thus ensures that at least over a certain period of time law remain certain and people are able to conduct their business in accordance with the prevalent interpretation of law. The doctrine is thus in the interest of public policy. In India, the doctrine is constitutionally recognized in respect of the decisions of the Supreme Court which have been declared under Article 141 to be binding on all courts and tribunals in the country. This of course implies that even a single pronouncement of the Supreme Court would be binding on subordinate courts. However, as held in the Bengal Immunity case, the decisions of the Supreme Court are not binding on itself. It is only the reasons for deciding a case i.e., the ratio decidendi of the case which are binding on future courts. There is no definite view as to how the ratio decidendi is to be determined but there are a number of tests for its determination of which some are the material facts test proposed by Prof. Goodhart and the Reversal Test Proposed by Wambaugh.
In order for the doctrine of stare decisis to be applicable, there are two basic prerequisites, first that there must be authentic reporting of decisions of courts. The second requirement is an established hierarchy of courts. The principle that the decisions of higher forums would be binding on lower forums is referred to as vertical stare decisis while that the decisions of forums would be binding on coordinate or coequal benches is known as horizontal stare decisis. The great value of the doctrine of stare decisis is that it provides certainty. While the doctrine of stare decisis is in the interest of public policy, there are number of disadvantages of the doctrine. In view of the large numbers of pronouncements of the Supreme Court and high courts it is difficult to locate all the precedents. Also, even in case of an erroneous decision, lower forums are bound to follow the decision as precedent. Contrary decisions, of coordinate benches can create confusion for lower forums. Another major disadvantage is that if a strict interpretation is given to this doctrine, and precedents are considered to be binding even on the highest forums, it may hinder the development of law which is necessary with changes in society. Stare decisis is not meant to be an inflexible rule that hinders the development of law. The Supreme Court appears to have taken this view in the Mirzapur Moti Kureshi Kasab case that while stare decisis is ordinarily to be adhered to, precedents can be reconsidered in view of changed circumstances where there are compelling reasons to do so. Thus, while the doctrine of stare decisis should generally be adhered to, the same should not be interpreted in a manner as to hinder the development of law and the correction of erroneous decisions. At the same time, the power to reconsider decisions cannot be given forum and thus, it is appropriate that the power remains with higher forums to the court that rendered the decision.
BOOKS AND ARTICLES:
· Edgar Bodenheimer Jurisprudence: The Philosophy and Method of Law, Harvard University Press (1974).
- Farrar, Introduction to Legal Method, Sweet and Maxwell, London, (1977).
· Smith, Glanville Williams: Learning the Law, Thompson: Sweet and Maxwell, (1973).
· Gerald L. Gall, The Canadian Legal System, Toronto: Carswell Legal Publications, (1983).
· Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review, (2004).
· Laksminath, Precedent in Indian Legal System, Eastern Book Co., Lucknow , (1990).
· Nomita aggarwal, Jurisprudence: Legal Theory, Jain Book Agency, (2006).
- Nelson, Caleb Stare Decisis and Demonstrably Erroneous Precedents, Virginia Law Review, (2001).
· P.J Fitzgerald, Samond on Jurisprudence, (2004).
- Paranjape, Study in Jurisprudence and Legal Theory, Central Law Agency, (2001).
- Pandey, Constitutional and Law of India, Central Law Agency, (2005).
· Tripathi, Jurisprudence(Legal Theory), Eastern Law Agency, (1999).
· V.T. Raghavachari, Precedent: Two of the Exceptions of Stare Decisis, Per incurium and Sub silentio, (1993).
 See Edgar Bodenheimer Jurisprudence: The Philosophy and Method of Law; Black law Dictionary.
 In a recent judgement, Sanjay Singh and Another v. Union Public Service Commision, (2007) 3 SCC 720 the Apex Court noted reiterated that it is the ratio decidendi of a judgement that would be binding.
 Glanville Williams , Learning the Law (9th ed. 1973),
 (1989) 1 SCC 101.
 Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004).
 Gerald L. Gall, The Canadian Legal System, 2nd ed. (Toronto: Carswell Legal Publications, 1983) at 220.
 P.J Fitzgerald, Samond on Jurisprudence 142 (2004).
 (1898) AC 375.
 (1860) 8 HIC 369.
 Nomita aggarwal, ‘Jurisprudence’ 108 (2006).
 (1944) KB 718.
 Ibid note 10.
 (1993) 66 ELT 23 (SC).
 State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat and Ors. AIR 2006 SC 212.
 AIR 2006 SC 212.
 AIR 1958 SC 918.
  2 QB 379;  1 All ER 708.
 (1988) QB 108.
 (1989) 1 SCC 101
 See also Government of A.P. v. B. Satyanarayana Rao (2000) 4 SCC 262.
 AIR 1964 P&H 439 quoted in Raghavachari , op. cit.
 Decided on 25.04.2003.
 Decided on 18.05.2007.
 (1993) 4 SCC 288.
 Baker v. Queen (1975) AC 974, Bars v. Bethel (1982) 1 ALL ER 106 quoted in V.T. Raghavachari, Precedent: Two of the Exceptios of Stare Decisis, Per incurium and Sub silentio, 91993 )66 ELT 143-160.
 A. Laksminath, Precedent in India, (2005).
 AIR 1967 (SC) 1643
 Harish Dhigra v. Union of India AIR 2001 SC 3795
 AIR 2003 SC 3821.
 (2001) 5 SCC 519.
 (1993) 4 SCC 427
 Tripathi, Jurisprudence 170 (1999).
 Section 212.
 AIR 1955 SC 661.