circumstances
WHAT IS THE BINDING ELEMENT OF A CASE
Every judgment contains four major elements:
1. statement of material (relevant) facts
2. statement of legal principle(s) material to the decision – the ratio
decidendi / stare decisis
3. discussion of legal principles raised in argument but not material to
the decision – obiter dicta
4. the decision or verdict
CIRCUMSTANCES WEAKENING THE BINDING FORCE OF
PRECEDENTS.
ABROGATED DECISIONS:
• A decision ceases to be binding if a statute or statutory rule is
inconsistent with it is subsequently enacted or if it is reversed or
overruled by a higher court.
• A decision ceases to be binding if statute inconsistent with it is
subsequently enacted. So also it ceases to be binding if it is reversed,
overruled or abrogated. If a decision is wrong or irrational, it may be
abrogated by a subsequent enactment or decision of a higher court
•
IGNORANCE OF STATUTE
• A precedent is not binding if it was rendered in ignorance of a statute
or rule having the force of statute i.e. delegated legislation. Such
decisions are per incuriam and not binding .
• The mere fact that the earlier court misconstrued a statute or
ignored a rule of construction is no ground for impugning the
authority of precedent. It is clear law that a precedent loses its
binding force if the court that decided it overlooked an inconsistent
decision of a higher court . Such decisions are also per incuriam.
• A court is not bound by its own decision that is in conflict with one
another. If the new decision is in conflict with the old, it is given per
incuriam and is not binding on later courts.
• In this circumstances the rule is that where there are previous
inconsistent decisions of its own , the court is free to follow either i.e.
earlier or later.
• To come within the category of per incuriam it must be shown not
only that the decision involved some manifest slip or error but also
that to leave the decision standing would be likely, inter alia, to
produce serious inconvenience in the administration of justice or
significant injustice to citizens.
• A precedent is not binding if it be rendered in ignorance of any
statute or any other rule having the force of statute.
• It is also not binding if the court had the knowledge of the existence
of the statute but it failed to appreciate its relevance to the matter in
hand due to negligence or ignorance
SUB SILENTIO: Precedents sub silentio or not argued:
• A decision passes sub silentio when the particular point of law involved in decision is
not perceived by the court or present to its mind.
• When a decision is on point A upon which judgement is pronounced but there was
another point B on which also court ought to have pronounced before deciding he
issue in favour of the party, but that was not argued or considered by the Court.
• In such circumstances although point B was logically involved in the facts and
although the case had a specific out come , the point B is said to pass sub silentio.[
Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A) ] .
• It is rightly said that an hundred precedent sub silentio are not material. Where a
judgement is given without the losing parties having been represented , there is no
assurance that all the relevant consideration have been brought to the notice of the
court and consequently the decision ought not be regarded as absolute authority
even if it does not fall within sub silentio rule.
• A precedent is not destroyed merely because it was badly argued ,
inadequately considered and fallaciously reasoned. Total absence of
argument vitiates the precedent.
• A decision is an authority only for what it actually decides and not for what
may logically or remotely follows from it.
• Decision on a question which has not been argued cannot be treated as
precedent.
• When observation of the court on a question about validity of a statutory
provision which was neither raised nor argued would not be a binding
precedent.
DISTINGUISHING: Inconsistency between earlier decisions of the Higher Court
• A binding precedent is a decided case which a court must follow. But
a previous case is only binding in a later case if the legal
principles involved is the same and the facts are similar.
• Distinguishing a case on its facts, or on the point of law involved, is a
device used by judges usually in order to avoid the consequences of
an earlier inconvenient decision which is, in strict practice, binding on
them.
• If a Court deems fit to follow a precedent of a superior court the
proper course , in such a case, is to try to find out and follow the
opinions expressed by larger benches of SuperiorCourt in the manner
in which it had done this.
• The proper course for a Court , is to try to find out and follow the
opinions expressed by larger benches of superior Court in preference
to those expressed by smaller benches of the Court.
• If, however, the Court was of opinion that the views expressed by
larger benches of this Court were not applicable to the facts of the
instant case it should say so giving reasons supporting its point of
view.
• Apex Court is bound by its earlier decisions. It is only when the
Supreme Court finds itself unable to accept the earlier view, it shall
be justified in deciding the matter in a different way.
• A precedent loses its binding force completely, if it is inconsistent
with the decision of a higher court.
• Thus the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd.
Observed that it is bound to follow its own previous decisions as well
as those of courts of co-ordinate jurisdiction.
• However, the Court is bound to refuse to follow a decision of its own
which, though not expressly overruled, cannot, in its opinion, stand
with a decision of the House of Lords or if it finds that there is
inconsistency between its earlier decision
Inconsistency between earlier decisions of the
court of the same rank
• A Court is not bound by its own earlier decisions which are conflicting
with each other.
• The conflict may arise due to inadvertence, ignorance or
forgetfulness in not citing earlier decisions before the Court. In such a
case the earlier decisions are not binding on the Court.
Decision of equally divided court
• There may be cases where the Judges of the Appellate Court are
equally divided.
• In such a case practice is to dismiss the appeal and hold that the
decision appealed against is correctly decided. But this problem does
not arise now-a-days because Benches are always constituted with
uneven number of Judges.
• In India, however, where the Judges in a Division Bench of a High
Court are equally divided, the practice is to refer the case to a third
Judge whose decision shall be treated as final unless it is set aside by
the Supreme Court.
OVERRULING:
• A higher court can overrule a decision made in an earlier case by a lower court
eg. the Court of Appeal can overrule an earlier High Court decision.
• Overruling can occur if the previous court did not correctly apply the law, or
because the later court considers that the rule of law contained in the
previous ratio decidendi is no longer desirable.
• The overruling is retrospectively except as regards matters that are
res judicata or accounts that have been settled in the meantime.
• The Apex Court or any superior court cannot allow itself to be tied down by
and become captive of a view which in the light of the subsequent experience
has been found to be patently erroneous, manifestly unreasonable or to
cause hardship or to result in plain iniquity or public inconvenience.
• The Court has to keep the balance between the need of certainty and
continuity and the desirability of growth and development of law.
.
• It can neither by judicial pronouncements allow law to petrify into
fossilized rigidity nor can it allow revolutionary iconoclasm to sweep
away established principles.
• On the one hand the need is to ensure that judicial inventiveness shall
not be desiccated or stunted, on the other it is essential to curb the
temptation to lay down new and novel principles in substitution of well
established principles in the ordinary run of cases and the readiness to
canonize the new principles too quickly before their saintliness has
been affirmed by the passage of time.
• It may perhaps be laid down as a broad proposition that a view which
has been accepted for a long period of time should not be disturbed
unless the Court can say positively that it was wrong or unreasonable or
that it is productive of public hardship or inconvenience.
affirmation or Reversal on a different ground:
• Reversing is the overturning on appeal by a higher court, of the decision of
the court below that hearing the appeal.
• The appeal court will then substitute its own decision.
• When a higher court either affirms or reverses the judgement of the lower
court on a ground different from that on which the judgement rests, the
original judgement is not deprived of all the authority but the subsequent
court may take a view that a particular point which the higher court did not
touch, is rightly decided.
•
CONCESSION:
Concession made by counsel on a question of law is not binding as
precedent.
CONSENT:
• When a direction or order is made by consent of the parties, the
Court does not adjudicate upon the rights of the parties nor lay down
any principle.
NON SPEAKING ORDER:
• Non speaking order dismissing special leave petition would not
constitute binding precedent as to the ratio of the High Court
involved in the decision against which special leave petition to appeal
was filed.
• the law can be laid down that court must give reasons for reaching
conclusion. the judgment of court below do not comply with the
requirement of statutory provisions as laid down in [Link] court
ought not to have given defective and cryptic judgment. In fact it is
no judgment in eye of law
•.
SPECIFIC EXCLUSION:
• A judgment stating therein itself that the ratio laid down there in shall
not be binding precedent or shall not be followed or relied upon , can
not be treated as binding precedent.
ON FACTS:
• . If a judgment is rendered merely having regard to the fact situations obtaiing
therein , the same could not be declaration of law within meaning of Article 141.
• There is nothing in the Constitution which prevent the Supreme Court from the
reversing its previous decision.
• An earlier decision cannot be departed unless there are extra-ordinary or special
reasons for doing so. Non-consideration for foreign decisions. The decision of
Constitution Bench which held the field a quarter of century without challenge.
Reconsideration on account of non-consideration of an American decision, not cited
before the bench, is not called for.
•
Dissenting judgments
• Most judicial decisions are unanimous. But at times few Judges may
write or even note a dissent in the case in which they disagree with
the majority.
Erroneous decisions
• The decisions which are founded on misconceived principles or in
conflict with the fundamental principles of law lose their binding
force completely