Latest Articles
Back
ARTICLE 141: DOCTRINE OF PRECEDENT
Article 141-
Law declared by Supreme Court to be binding on all courts: The law declared by the Supreme Court shall be binding on all courts within the territory of India.
The doctrine of Precedent refers to the concept that the court is to follow judicial decisionspronounced in previous cases, when faced with the same factual carve-out, questions in subsequent matters. Doctrine of Precedent is also interchangeably used for Principle of Stare Decisis which was widely accepted in England at the end of the 19th century. However, there is a very fine line of difference between Stare Decisis and Precedent. This clearly is a western concept.
In the Indian Constitution this doctrine is charted under Article 141 and specifically entitles the Supreme Court to have this binding authority over other courts. The theoretical basis for the legislature to bestow such binding authority and the status of law(constitutional status) to a premanicured decision on a question of law is to add a sense of certainty, consistency and predictability to the legal system of India.
According to Salmond, the phrase ‘the doctrine of precedent’ has various meanings. A very loose and vague interpretation of this doctrine includes, precedents are reported, cited and will probably be followed by courts. On the other hand in its strict and rather a more legal sense, in certain circumstances, precedents have a great binding authority over courts thus making them bound by previously decided cases. The civil law countries (where law is mostly codified)– Germany, Italy, France etc- use the Doctrine only in the former sense. The common law countries such as India, England, America and apply the Doctrine in the latter sense.
There are three kinds of sources of laws:
- Customary law- custom;
- Enacted law- legislation is treated as its source;
- Case law- precedents
This doctrine can be said to have various namesakes ranging from Stare Decisis in England to Jurisprudence Constante in France etc.
Difference in Precedent and Stare Decisis
Stare decisis is a Latin term which means 'to stand by things decided.' A doctrine and principle in its literal sense can be used interchangeably. Thus, a principle is not as strict as law. The existence of a principle doesn’t necessarily mean that it can’t be broken.
The doctrine of stare decisis when established in a country’s legal system then it obligates the court to look back at it previously decided cases when making their decisions. If while giving the new decision if it is found that the preceding case doesn’t have a sound judicial ground then it can be overtured or overruled. Thus, a doctrine can be broken. Precedents are just a subset of this doctrine. The past decisions are known as precedent. Precedent is a court’s previous decision. This decision sets an example, for judges and authority while deciding either factually similar or identical cases.
Doctrine of Stare Decisis just facilitates and obligates the courts to look back at these previous decisions. This also shows that the binding authority of precedents is much lesser than established statutes and the constitution.
Implication of Article 141 of the Constitution is that in India it 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.
Once again 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.
As far as the high courts are concerned, the decisions of a High Court have a great binding authority over all subordinate courts within the jurisdiction of High Court.
Role of Foreign Precedents in the Indian Legal system
Due to India’s long colonial history, the country’s legal system has heavily relied on its previous western influence. As far as adopting common law system. Thus, Doctrine of Precedent is an indelible imprint left by our colonial past.
The famous Wednesbury principles can be considered a well fitted example for this particular section of this research paper. These principles have been diluted quite recently. However it is one the most prominent tests of unreasonableness which has been applied by Indian courts time and again.
Few objections were made against the citation of foreign precedents in constitutional cases.
The first objection is based on the reasoning that foreign judges are not responsible to the electorate. There will be a breach of public morality if reliance is placed solely on their decisions may amount to arbitrary misuse of powers and this would hurt Judicil conscience.
Secondly Concept of exceptionalsm isn’t possible in India as the whole constitutional framework is based on different other constitutions. This the very reason why there are so many western concepts incorporated in the constitution.
Using foreign precedents in order to facilitate the expansion of ‘judicial discretion’ is a very sugar-coated and impractical view. Judges may use their powers arbitrarily and can prolong a bad precedent too.
Foreign precedents should be introduced in the legal system only till when it is not going to cause delay in deciding a case and its introduction must have real purpose. Also an unnecessary executive action shouldn’t be allowed to pervert the course of justice.
