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Stare Decisis: The Pillar of Legal Consistency and Precedent

It is common knowledge that the Doctrine of Stare Decisis is adhered to & followed mandatorily to bring consistency, certainty & finality to judicial proceedings and therefore the precedents are not to be disturbed. However, the doctrine of stare Decisis is not a rigid, inexorable, inflexible or universal command and the Higher Courts can in exceptional circumstances, for furtherance of justice, overrule the earlier decisions.

Stare decisis is a Latin term meaning "to stand by that which is decided." The principle of 'stare decisis' is as old as the establishment of the courts. It is derived from the legal maxim 'stare decisis et non quieta movere'. It is best to adhere to decisions and not to disturb questions, which have been put at rest.

Merriam Webster dictionary defines Stare Decisis as the Doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice

Webster's New World College Dictionary, 4th Edition defines Stare Decisis thus:
"Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions."

Thus, Stare Decisis is the doctrine that courts will adhere to precedent in making their decisions. It refers to the policy of law that requires courts to abide by laws and precedents previously laid down as applicable to a similar set of facts.

The doctrine of stare decisis refers to the rule in which the court would follow previous judicial decisions in future instances. As a result, when the same questions or arguments are addressed in later instances, the court will follow the findings of previous cases.

According to this doctrine, the lower courts are bound to follow such a judgment. This has been explicitly mandated under Article 141 of the Constitution to give law finality and maintain consistency and permanence. Article 141 of the Constitution reads thus:

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 Stare Decisis thus means that courts refer to the previous, similar legal issues to guide their decisions. Such previous decisions that courts refers to are known as "precedents".

It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. It would be trite to refer to Waman Rao v. Union of India, (1981) 2 SCC 362 wherein the Constitution Bench of the Apex Court observed thus:

"40. ... for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis.

It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis."

It would be relevant to refer to Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4 SCC 124, at page 127 wherein the Apex Court opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

In Ambika Prasad Mishra Etc. vs State of U.P. and Ors. Etc. 1980 AIR 1762, 1980 SCR (3)1159, a Constitution Bench of the Apex Court dealt with this doctrine and observed thus:

"But, after listening to the marathon erudition from eminent counsel, a 13 Judges Bench of this Court upheld the vires of Article 31A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Art. 141. Every now discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high-pressure advocacy, cannot persuade us to re-open, what was laid down for the guidance of the nation as a solemn pre-posion by the epic Fundamental Rights case.

From Kameshwar Singh and Golak Nath (supra) through Kesavananda (supra) and Kanan Devan to Gwalior Rayons and after Art. 31A has stood judicial scrutiny although, as stated earlier, we do not base the conclusion on Art. 31A. Even so, it is fundamental that the nation's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blowup.

This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shakeup."

It would be useful to refer to State of UP And ors. Vs. Ajay Kumar Sharma And Anr. (2016) 15 SCC 289 wherein the Apex Court dealt with the principles of 'Precedent' and of 'Stare Decisis' and observed thus:

10 Time and again this Court has emphatically restated the essentials and principles of 'Precedent' and of Stare Decisis which are a cardinal feature of the hierarchical character of all Common Law judicial systems. The doctrine of Precedent mandates that an exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly by all smaller Benches and subordinate courts. That is to say that a smaller and a later Bench has no freedom other than to apply the law laid down by the earlier and larger Bench; that is the law which is said to hold the field. Apart from Article 141, it is a policy of the courts to stand by precedent and not to disturb a settled point.

The purpose of precedents is to bestow predictability on judicial decisions and it is beyond cavil that certainty in law is an essential ingredient of rule of law. A departure may only be made when a coordinate or co-equal Bench finds the previous decision to be of doubtful logic or efficacy and consequentially, its judicial conscience is so perturbed and aroused that it finds it impossible to follow the existing ratio. The Bench must then comply with the discipline of requesting the Hon'ble Chief Justice to constitute a larger Bench.

11 If binding precedents even of co-ordinate strength are not followed, the roots of continuity and certainty of law which should be nurtured, strengthened perpetuated and proliferated will instead be deracinated. Although spoken in a totally different context, we are reminded of the opening stanza of the poem 'The Second Coming' authored by William Butler Yeats. The lines obviously do not advert to the principle of precedent but they are apposite in bringing out the wisdom of this ancient and venerable principle."

The Apex Court applying Sub-Inspector Rooplal v. Lt. Governor (2000) 1 SCC 644 in Government of Andhra Pradesh v. A. P. Jaiswal, (2001) 1 SCC 748 has succinctly observed thus:

Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice, which we see in plenty in this case.

It would be apposite to refer to Ganga Sugar Corpn. Vs. State of U.P., (1980) 1 SCC 223 wherein the Apex Court cautioned that, "the Judgments of this Court are decisional between litigants but declaratory for the nation. The Apex Court observed thus:

And we cannot lose sight of the All India impact when the law is laid down under Article 141. Judgments of this Court are decisional between litigants but declaratory for the nation.

The Apex Court in the case of Ashok Kumar Gupta, Vidya Sagar & ors. vs. State Of U.P. & Ors 1997 (5) SCC 201 dealt with the doctrine of stare decisis and observed that this rule is not an inflexible rule and held thus:

"The doctrine of stare decisis is ordinarily a wise rule of action, because in most matters, it is more important that the applicable rule of law be settled right. The rule of stare decisis, though one tending to keep consistency and uniformity of decisions, is not an inflexible rule. Whether it shall be followed or departed from is a question entirely within the discretion of the Court and it does not deter the court to depart from it. Stare decisis is not, like the rule of res judicata, a universal, inexorable command. whether it would be desirable to continue the decision in constitutional questions is one of the choice between competing rights.

In The Bengal Immunity Company Ltd. case, considering the question whether the decision of a Constitution Bench referred in the State of Bombay vs. The Union Motors (India) Ltd. [(1953) SCR 1069], a majority of seven Judges following the descending judgment of Stone, CJ in United States of America vs. South-Eastern Underwriters Association [322 US 533], had held that the Court has never committed itself to any rule or policy that it will not bow to the lessons of experience and the force of better reasoning by overruling a mistaken precedent.

The doctrine of stare decisis should not be rigidly applied to the constitutional as well as to other laws. In the case of private import, the chief desideratum is that the law remained certain, and, therefore, where a rule has been judicially declared and private rights created thereunder, the courts will not, except in the clearest cases of error, depart from the doctrine of stare decisis.

When, however, public interests are involved, and especially, when the question is one of constitutional construction, the matter is otherwise. Accordingly the Bench overruled the majority decision. It would, thus, be settled law that in the interpretation of the Constitution or the concepts embodied therein, the application of the doctrine of stare decisis is not an inexorable or rigid rule. It requires modulation or adherence based upon the need of the constitutional command and social imperatives. It would, therefore, be entirely within the discretion of the Court when it is called upon to consider its application to the given set of circumstances."

It would be apropos to refer to Krishena Kumar v. Union of India, (1990) 4 SCC 207, wherein the Apex Court has explained the meaning and importance of sparing application of the doctrine of Stare Decisis thus:

"33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same.

A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it."

It is worthwhile to refer to the case of Shanker Raju Vs. Union of India (2011) 2 SCC 132 wherein the Apex Court stressed the importance of the doctrine of Stare Decisis and observed thus :

"10. It is settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim stare decisis et non quieta movere, which means "to stand by decisions and not to disturb what is settled". Lord Coke aptly described this in his classic English version as:
"those things which have been so often adjudged ought to rest in peace". The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible�."

The Apex Court in the case of Indra Sawhney and others vs. Union of India and others, etc. AIR (1993) SC 477, in paragraph 26-A of the Judgment, considered the principle of stare decisis and observed that in the law certainty, consistency and continuity are highly desirable features. The Court observed that where a decision has stood the test of time and has never been doubted, it has to be respected unless, of course, there are compelling and strong reasons to depart from it.

In S.Nagaraj & Ors. vs. State of Karnataka & Anr. [1993 Suppl.(4) SCC 595], it was urged by the petitioner that any modification or recalling of the order passed by the Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. The Apex Court succinctly observed thus:

"Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice."

However, it is not that the Courts are always and without failure bound by the rule of stare decisis. In the landmark case of State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat & Ors. (2005) 8 SCC 534, a 7 member Constitution Bench of the Apex Court dealt elaborately with the doctrine of Stare Decisis.

This landmark judgment is a treatise on the doctrine of stare decisis, which is generally to be adhered to as well settled principles of law founded on a series of authoritative pronouncements but at the same time the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look. The Court succinctly observed thus:

"Stare decisis is a Latin phrase which means "to stand by decided cases; to uphold precedents; to maintain former adjudication". This principle is expressed in the maxim "stare decisis et non quieta movere" which means to stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as "Those things which have been so often adjudged ought to rest in peace".

However, according to Justice Frankfurter, the doctrine of stare decisis is not "an imprisonment of reason" (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.

The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience.

According to Professor Lloyd concepts are good servants but bad masters. Rules, which are originally designed to fit social needs, develop into concepts, which then proceed to take on a life of their own to the detriment of legal development. The resulting "jurisprudence of concepts" produces a slot-machine approach to law whereby new points posing questions of social policy are decided, not by reference to the underlying social situation, but by reference to the meaning and definition of the legal concepts involved.

This formalistic a priori approach confines the law in a strait-jacket instead of permitting it to expand to meet the new needs and requirements of changing society (Salmond on Jurisprudence, Twelfth Edition, at p.187).

In such cases Courts should examine not only the existing laws and legal concepts, but also the broader underlying issues of policy. In fact presently, judges are seen to be paying increasing attention to the possible effects of their decision one way or the other. Such an approach is to be welcomed, but it also warrants two comments. First, judicial inquiry into the general effects of a proposed decision tends itself to be of a fairly speculative nature. Secondly, too much regard for policy and too little for legal consistency may result in a confusing and illogical complex of contrary decisions.

In such a situation it would be difficult to identify and respond to generalized and determinable social needs. While it is true that "the life of the law has not been logic, it has been experience" and that we should not wish it otherwise, nevertheless we should remember that "no system of law can be workable if it has not got logic at the root of it" (Salmond, ibid, pp.187-188).

Consequently, cases involving novel points of law, have to be decided by reference to several factors. The judge must look at existing laws, the practical social results of any decision he makes, and the requirements of fairness and justice. Sometimes these will all point to the same conclusion. At other times each will pull in a different direction; and here the judge is required to weigh one factor against another and decide between them. The rationality of the judicial process in such cases consists of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion. (Salmond, ibid, pp.188).

In case of modern economic issues which are posed for resolution in advancing society or developing country, the court cannot afford to be static by simplistically taking shelter behind principles such as stare decisis, and refuse to examine the issues in the light of present facts and circumstances and thereby adopt the course of judicial "hands off". Novelty unsettles existing attitudes and arrangements leading to conflict situations which require judicial resolution. If necessary adjustments in social controls are not put in place then it could result in the collapse of social systems.

Such novelty and consequent conflict resolution and "patterning" is necessary for full human development. (See - The Province and Function of Law, Julius Stone, at pp.588, 761and 762) Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of our legal system will discern that any deviation from the straight path of stare decisis in our past history has occurred for articulable reasons, and only when the Supreme Court has felt obliged to bring its opinions in line with new ascertained fact, circumstances and experiences. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8).

Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with changing society, and, "every age should be mistress of its own law" and era should not be hampered by outdated law.

"It is revolting", wrote Mr. Justice Holmes in characteristically forthright language, "to have no better reason for a rule of law than it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past".

It is the readiness of the judges to discard that which does not serve the public, which has contributed to the growth and development of law. (ibid, p. 68) The doctrine of stare decisis is generally to be adhered to, because well settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look.

Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House of Lords from its own previous decisions, states it to be desirable as 'it would permit the House (of Lords) to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances. (See Salmond, ibid, at p.165).

This view has been succinctly advocated by Dr. Goodhart who said:
"There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law". (ibid, p.161) This very principle has been well stated by William O' Douglas in the context of constitutional jurisprudence. He says: "So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history.

Once it does, the cycle starts again". (See Essays on Jurisprudence from the Columbia Law Review, 1964, at p.20) We have already indicated that in Quareshi-I, the challenge to the constitutional validity of the legislation impugned therein, was turned down on several grounds though forcefully urged, excepting for one ground of 'reasonableness'; which is no longer the position in the case before us in the altered factual situation and circumstances."

It is worthwhile to refer to the Apex Court's case in Maktul vs Mst. Manbhari & others 1958 AIR 918 wherein the Court long back dealt with the principle of stare Decisis and its so conceived unimpeachability. The Court observed thus:

"The same doctrine is thus explained in Corpus Juris Secundum(1) " Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable."

The Corpus Juris Secundum (2), however, adds a rider that "previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result." In the present case it is difficult to say that the doctrine of stare decisis really applies because the (1) VOL XXI P. 302, para. 187. (2) VOI. XXI. P. 322, para. 193."

It would be befitting to refer to The Bengal Immunity Co. Ltd. v. State of Bihar and others, [1955] 2 SCR 603 wherein a Constitution Bench of 7 Judges of this Court held that non-interference with an erroneous decision would be detrimental to the process of Law. The Court referred to State of Washington v. Dawson & Co., 264 U.S. 646; 68 L.Ed. 219, Brandies, J. in his dissenting judgment said:

The doctrine of stare decision should not deter us from overruling that case and those which follow it. The decisions are recent ones. They have not been acquiesced in. They have not created a rule of property around which vested interests have clustered. They affect solely matters of a transitory nature. On the other hand, they affect seriously the lives of men, women and children, and the general welfare. Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the Courts have disregarded its admonition are many.

It is pertinent to finally refer to the case of Distributors (Baroda) Pvt. Ltd. v. Union of India & Ors., (1986) 1 SCC 43 wherein a Constitution bench of the Apex Court observed thus:

19. But, even if in our view the decision in M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat�I , (1979) 3 SCC 538 is erroneous, the question still remains whether we should overturn it.

Ordinarily we would be reluctant to overturn a decision given by a Bench of this Court, because it is essential that there should be continuity and consistency in judicial decisions and law should be certain and definite. It is almost as important that the law should be settled permanently as that it should be settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the Court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the Court."

What infers from the above deliberations is that the doctrine of Stare Decisis is necessary for maintaining consistency but this rule is not unimpeachable and in order to foster the rule of law, the courts can overrule the earlier precedents and declare new law. It is true that the doctrine of stare decisis is generally to be adhered to but deviation from precedents is permissible in changed facts and circumstances, dictated by forceful factors supported by logic, amply justify the need for a fresh look.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021

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