……we
must be mindful of the exact suggestion,
which we seeks to convey or, at least canvass, in the factual matrix of our
case.
What
do we mean by “I rely on this Judgment”: When we rely on any Court ruling, what we really say is
“this is the law of the land, being declared by the Apex Court or the High
Courts, and this is the course of action which the Courts, Tribunal, Govts,
Administration and every Individual, must adopt in a given set of facts and circumstances.
And we tell the concerned, Please
look, there is a judgment of High
Court / Apex Court, which had dealt with the provision of law / proposition of
law, to which we are concerned in the instant case also; The
said High Court / Apex Court had interpreted the law / proposition of law, and
have held that ……
The
birth of a Judgment / Precedent:
Every provision of law guides / mandates / directs the concerned to behave or
conduct itself or to adopt certain or set course of actions which must or
preferably be taken in a specific fact situation. And when there is deviance,
the cause of action arises; and the aggrieved invokes Court; and the adversary
if disputes the particular mandate of law, the Presiding Judge of the
Constitutional Courts (High Courts and Apex Court), in these confronting
factual backdrops, whilst applying the principles of interpretation of laws,
interpret and gather the letter and spirit of the concerned applicable laws,
and then having been ascertained, (a) the factual position of the case and (b)
the (interpreted) position of law, decide the issue / case before it, one way
or the other. Perhaps, this is how Precedents take birth.
Two
types of Precedents:
There are perhaps two ways in which judgments of High Courts and Apex court may
be used as precedents. First, if the concerned judgment poses itself to a
question of law, delve into the letter of the law, interpret the letter of the
law, and lay down the purport and import of law, having regard to object and
purpose for which the said provision of law was enacted; second those kind of
judgments which although does not extensively interpret the law, but considers
and apply the applicable provision of law, and briefly enumerate the principle
of law, and proceeds to decide the case before it.
What is not a Precedent:
For a judgment to be available as a Precedent, must declare the purport and
import of provision of law by a process of reasoning and deliberation. A casual
conclusion as to mandate of law would never be regarded as Precedents. [1991
(4) SCC 139; AIR 1979 SC 1384; AIR 2002 SC 3484]
Further, it can always be argued that
a particular judgment cannot be relied upon, on the premise that the said
judgment is “per incurium” or “sub silento”, that is to say, said judgment was
rendered in ignorance of a previous Court ruling which was otherwise binding;
or where said judgment was delivered without taking into consideration the
applicable statutory provision of law which had a full force. [AIR 1988 SC
1531; 1991 (4) SCC 139; AIR 2000 SC 1729; AIR 2011 SC 312. 2011 (7) SCC 639; AIR
2012 SC 1228; AIR 2010 SCW 4252; AIR 2015 SC 856]
Further,
in the settings of Rule of law, the lower Courts are bound by the law laid down
by High Courts and Apex Court; Similarly, High Courts are bound by the law laid
down by the Apex Court. Equally, a single Bench of the High Court is bound
by the decision of the Division Bench and Division Bench is Bound by the
decision of the full Bench Judgments. Similarly, Division Bench of the SC is
bound by the decisions of the Three judges Bench and three judges Bench are
bound by the Constitution Bench Rulings. AIR 2011 SC 312.
Progression of Law:
Binding Precedents and unambiguous statutory provisions create issue estoppel.
Any party is precluded from arguing contrary to what the law is and what the
law is laid down. Nevertheless, High Courts and Apex Court are always at
liberty to deviate from what the law is laid down by themselves, on the grounds
of (a) law being laid down on the erroneous interpretation of law or (b) law
being laid down over the ignorance of relevant statutory provision or ignorance
of earlier binding judgment, or (c) changed circumstances; and this is how the
development of law takes place. The consistency in the position of law, and the
progression of law must take place simultaneously. Therefore it has been ruled
that doctrine of Res judicata is not applicable to law. [AIR 1955 SC 661]
Operation of Precedents:
It is also well settled that judgments are applied retrospectively, suggesting
that, “the law laid down” was in fact the intent of the law at the time of its
enactment, and said proposition of law has not emerged by reason of court
judgment. However, in the absence of
appropriate legislations and executive orders, in matters of public importance
and urgency, the Apex Court and even the High Courts can issue orders and
directions to fill the gap, for the due enforcement of the fundamental rights
and doing complete justice in the cause. [AIR 1998 SC 889]
There
cannot be blind reliance on Judgments: The declaration of law contained in a judgment and its
applicability to a set of facts are two different things, that is to say, a
Precedent may seems attracted to facts of the case; but a closer scrutiny of
the facts may render the Precedent inapplicable, for, it has been consistently
seen that a small difference of factual Matrix may change the entire complexion
of the case, and so render the inapplicability of the provision of law on the
basis of which the declaration of law was made. In the legal parlance, we call
it Judgment being distinguished on facts. And, it is also well settled that it
is not everything said by a judge while giving judgment, constitutes a
precedent. The articulation of the reason or principle on which a question
before the court has been decided, is alone binding as a precedent. [AIR 2012
SCW 953]
Consequences
of ignoring Precedents:
Wilful disregard of law
(Precedents) so laid down may invite the contempt of the Court; and even the
Judges of the subordinate judiciary are answerable in contempt if they are
found knowingly disregarding the law so laid down. (Section 16 of the Contempt
of Courts Act, 1971); 2007 (6) MhLj 146; AIR 2012 SC 2413;
AIR 2013 SC 1921; AIR 2000 SC 594;
2011 (13) SCC 180; AIR 1995 SC 1349.
It has been held by our Apex Court
that non consideration of applicable rulings of the High Court or Apex Court
may be regarded as “error apparent on the face of the record”, inviting the
safe invocation of Review / Recall jurisdiction. [AIR 2008 SCW 7153]
There are rulings of Apex Court which
have laid down that, in the due exercise of powers, if the Courts / Authorities
disregards the precedents / judgments of Apex Court, such action / Orders
suffers from jurisdictional error. (1998) 1 Bom.C.R.397. It also amounts to contravention of
the fundamental policy of Indian law. [AIR 1994 SC 860; AIR 2015 SC 620]
In the case of Dr Dinesh Kumar versus Motilal Nehru
Medical college, the Apex Court have the occasion to say that the directions of
the Apex Court are not intended to be brushed aside and overlooked or ignored.
Meticulous compliance is the only way to respond to directions of this court.
[AIR 1990 SC 2030]
The
great importance of Judgments as Precedents of our Apex Court and High Courts
needs no emphasize. These Judgments helps all us in regulating our behaviour
and response to a situation. Case laws are decisive means to strengthen and
establish our case, whether in the court of law, or outside the Court of law. It is a basic principle of administration of
justice that all like cases should be decided alike. Otherwise, on same set of
facts, brought forth by different persons may result in different orders,
resulting in frustration of equality before law and equal protection of laws
guaranteed under Article 14 of our Constitution.
The Apex court emphasized upon the need for courts
to follow the principles of stare decisis. The Apex court in a case before have
the occasion to observe that consistency is the cornerstone in the
administration of justice. The adherence to law already laid down has the merit
of promoting certainty and consistency in judicial decisions and enables
organic development of law, besides providing assurance to the individuals as
to the consequence of transaction forming part of his daily affairs. The
practice of following precedents enables citizens to plan their conduct in the
expectation that past decisions will be honoured in the future. [AIR 2001 SC
499].
Sandeep Jalan
Advocate
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
https://www.litigationplatform.com/
Thank you.
Comments