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 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.

“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.

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. 

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.

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”.

Conclusion
The doctrine of precedents as recognized under Article 141 of the
Constitution of India is weakened in India as many decisions of the Supreme
Court of India are overruled by the same court, by the larger bench or even
the bench of equal strength, in some cases. Further, the decisions of a High
Court which act as a binding precedent to all the subordinate courts within
the same state in which the said High Court is designated.

The decisions of the High Courts in many cases have been reversed by the
Supreme Court in appeal or in its extraordinary jurisdiction. The decision of
one High Court is only persuasive in nature for the other High Courts that
encourages the High Court to have different opinions on a similar situation or
on the laws with part material.

Moreover, there is no mechanism that assures the strict adherence and

compliance of the law as laid down by the Supreme Court under Article141.
If the judge is to be bound by precedents he should have all the relevant
authorities at his command. The ignorance of the subordinate Court has
resulted in injustice to many poor litigants who do not afford to go in appeal.

The Backbone of Judiciary is already at stake due to the pendency of cases in

India, more particularly on subordinate courts and decisions in  ignortia ( per
incuriam )  is adding to the woes of the poor litigant.

The plea of decision, sub-silento, and per-incuriam is used by the superior

courts to avoid blame and liability in case of contradictory judgments by the
courts of equal authority. Moreover, Overruling in part, and retaining in part
is another confusing phenomenon wherein courts relook into law points
decided in earlier judgment and differentiate its own decision.

The decisions of the international courts are taken into account while
developing new and old principles of jurisprudence. The
observations/directions issued by the Supreme Court in a Judgment are not
the ‘law declared by the Supreme Court’ under Article 141 of the constitution
of India, such directions are issued in exercise or powers under Article 142 of
the Constitution. The recognition of the doctrine of precedents is essential for
ensuring certainty, continuity, and predictability of the law of the land.