CHAPTER IV ORIGIN OF DOCTRINE OF PRECEDENT AND …€¦ · “A precedent covers everything said or...
Transcript of CHAPTER IV ORIGIN OF DOCTRINE OF PRECEDENT AND …€¦ · “A precedent covers everything said or...
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CHAPTER IV
ORIGIN OF DOCTRINE OF PRECEDENT AND DISSENT IN
INDIA
Judicial organ is a vital part of every progressive nation. The citizens look upon
the efficient legal system not only for the directions regarding their rights but also
duties and the precedent serves as aid to some set of guiding patterns in their
subsequent conduct. The term ‘precedent’ is nothing but an evolution of the
guidance and jurisdiction of past decision on the landmark cases in order to serve
as an aid to the society while dealing with the pros and cons of the Indian legal
system.1 Deep understanding of the past can be gained by a brief look towards
history. A clearer view and interpretation of present legal problems is possible, if
we debris to take notice of the history.2
A ‘precedent is defined as:
“a previous instance or case which is or may be taken as an
example of rule for subsequent cases, or by which some
similar act or circumstances may be supported or justified.”3
According to Gray,
“A precedent covers everything said or done, which
furnishes a rule for subsequent practices”.4
The term ‘Precedent’ generally means ‘some set arrangements navigating the
subsequent conduct’. It is the acknowledgement of the authority that makes a
1 Monika Bhaktal, “Evolution of Precedent in Indian Society: How, Where and by Whom?” 3.1 Int. Jour. of Law and Legal Juris. Studies, 308 at 310(2016). 2 David Crabtree, The importance of History, McKenzie Study Centre, An Institute Of Gutenberg College, Available at: <http://msc.gutenberg.edu/2001/02/the-importance-of- history/> accessed on May 20, 2018. 3 Available at : <https://www.oxfordlearnersdictionaries.com/definition/english/precedent> 4 John Gray, The Nature and Sources of Law, 121 (Columbia University Press, 1909).
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superior court verdict a judicial precedent. “A judicial precedent is judicial to
which authority has in some measures been attached”.5
Judicial precedent is applied in different legal systems through different principles.
The “Doctrine of Precedent” involves such principles. The researcher wants to
elaborate about the origin of the precedents rooting from the ancient law, to
medieval and also British rule, and till the present scene in the Supreme Court and
the High Courts.
4.1 EVOLUTION OF DOCTRINE OF PRECEDENT
Till 19th century, history indicates, that the roots of the ‘doctrine of precedent’ laid
in England. The application of the doctrine of precedent was a unique- feature of
the English legal system where precedents under certain conditions were reported
and followed by Courts. With some changes it is followed in many countries
including our own.6
Law in India has evolved from old religious beliefs and customary traditions. The
doctrine of precedent has come from the English law and is pari materia7to India.
Navigating through common law and democratic judicial system, finally law has
evolved to the present legal system. Though being a concept of the judicial
decisions and philosophies ‘precedent’ is considered as an inevitable aspect for
emergence of setting examples by following the ‘judge made laws’ in the
country.8
4.1.1 Ancient Period
Contrary to modern times, the evidence of existence of Doctrine of precedent is
cloudy in ancient times. Though there are texts which suggest, but with no
recordings of cases nothing concrete can be commented. The Law, in most part of
India was customary. As compared to the modern times, the legal complexity was
lesser in olden days. The ancient court kula was the tribal tribunal, Sherni was
5 G W Keeton, The Elementary Principles of Jurisprudence, 225(Pitman & Sons, London, 2nd edn.,1949). 6 G. N. Jha, Hindu law in its Sources, 21(The Indian Press Ltd., Allahabad, 2nd edn.,1930).
7 Latin term, ‘Of the same matter, on the same subject’.
8 Supra note 1 at 311.
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professional and Puga used to be the local one. All these ancient courts decided
most of the disputes orally. Therefore, the arbitrator or the judge was not required
to lay down novel points and show originality. On the basis of predecided
jurisdiction, they used to hear and decide the cases. Due to absence of detailed
account of cases, there is no clear picture of court’s working, though we find the
recording of cases with title and vague classification. The less developed doctrine
of precedent was the result of undeveloped reporting practices since there were no
printing machines.9
4.1.2 Medieval Period
Evidence of developed principles of precedent are not traced even in medieval
period. In order to decide cases and determine the rights, mohammedan rulers had
designated Qazis. Panchayats also worked actively for dispute resolution in rural
areas. After the establishment of the British rule, the concept of doctrine of
precedent became more developed gradually.
4.1.3 During the British Rule
After establishment of British rule in the country, the British administrators
inducted maulvis and Hindu pundits for smooth judicial functioning based on
personal law of the litigants, for a short period. A Supreme Court was set up at
Calcutta under the provisions of ‘Regulating Act’. Afterwards, establishment of
Supreme Court took place in different Presidency towns. After sometime,
provinces also had established High Courts. After codification of many
substantive laws, both the Supreme Court and the High Court applied the same for
meeting the ends of Justice, though both the adjudicatory organs were independent
to each other. A new era evolved, when the judicial committee of the Privy
Council became the final appellate tribunal, in the Indian Legal History.
Slowly and gradually an established hierarchy of the courts was apparent. The
Mofussil Courts (in districts) at the grassroot level and then the Presidency Courts
(in Presidency towns) and above these courts was the High Court. The Privy
9 Ibid.
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Council was the final appellate tribunal. The lower courts at different levels were
bound by the decisions of the immediate superior court. Therefore, in British India
the rulings of the Privy Council were authoritative and were followed strictly by
all levels of Courts in hierarchy. This definitely accelerated in bringing together
uniformity and certainty in law. Thus, the Doctrine of Precedent, in the modern
sense took its birth in India.10
4.1.4 Government of India Act, 1935
A Federal Court was set up in India, with the notification of the Government of
India Act, 1935. And indeed, it caused an interjection in the recognized ladder of
Courts at different levels. Under the mandate of the Government of India Act,
1935, the Federal Court verdicts had authoritative binding effect on all the lower
courts. Section 212of the Government of India Act, 1935, states:
“the law declared by federal court and by any judgment of
the Privy Council shall, so far as applicable, be recognized
as binding on and shall be followed by all the courts in
British India, and so far as respects the application and
interpretation of the Act or any Order in Council there
under or any matter with the respect to which the Federal
Legislature has power to make law in relation to the State,
in any Federal State.”11
4.1.5 Indian Constitution 1950
India gained independence in 1947 and thereafter the Indian Constitution 1950
was adopted. Under Article 124 of Constitution of India, the Supreme Court was
set up enshrined with final appellate powers in India also called the final
appellate tribunal. Similarly, High Courts were established in the constituent
States of the Indian Union. With the establishment of Supreme Court as the apex
judicial body, the Privy Council lost its authority. The Federal Court was also
10 Id. at 312. 11 Section 212 of Government of India Act, 1935.
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obliterated. In the hierarchy downwards, High Courts were constituted in states
and District Courts in districts respectively.
One of the primary task of the Supreme Court is to guard the fundamental rights
of the citizens and look after the disputes between various governments in the
country. The Supreme Court is the highest judicial forum of the Indian Union.
Indian Supreme Court enjoys original jurisdiction, writ jurisdiction, appellate
jurisdiction, advisory jurisdiction and revisory jurisdiction. The law interpreted
and declared by it, has authority on the hierarchical ladder of Courts downwards
in the country. While being the highest judicial forum, the Supreme Court,
vested with power under constitutional mandate of Article 141 to declare a
binding law for the whole country, thereby fulfilling its eminent role of legal
mentor of the nation. Article 141 of Constitution of India states that, “The Law
declared by the Supreme Court shall be binding on all courts within the territory
of the India.” By virtue of Article 141, the Supreme Court shall not be bound by
its own decisions,12except to the extent of that a smaller Bench is bound by the
decisions of a larger Bench and that of a Co-equal Bench.13
Precedents have enormous authority in the common law system. The principle of
Stare decisis is its excellent feature. According to Dowrick,14 “The principle of
stare decisis is a precipitate of the notion of legal justice”.15 In other words, it is
the principle that judicial decisions have a binding character.
In case Indra Shawnay v. U.O.I,16 it was held that, “the doctrine of the Stare
decisis is not applicable in the Supreme Court. However, in practice, the previous
decisions of the court command great value in the Court”. It has been also held
that long standing legal positions should not be shaken.
12 I.T. Commissioner, Madras v. R.M.C. Pillai, AIR 1997 SC 489 at 496. 13 Indian Oil Corporation v. Municipal Corporation, AIR 1995 SC 1490. 14 per se referred in Vidyacharan Shukla v. KhubchandBaghel And Others, AIR 1964 SC 1099. 15 F.E.Dowrick, Justice According to the English Common lawyers,27(Buttersworth, London, 1961) 16 AIR 1993 SC 447.
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In case Manganese Ore (India) v. R. Asst. Commr.,17 the Supreme Court has
observed that “the doctrine of stare decisis is a very important principle of
precedent which cannot be departed from unless there are inevitable or special
reasons to do so”. In I.T. Officer, Tuticorin v. T.S.D. Nadar & others,18 it was
held that, “it is only when the Supreme Court of India finds itself not being able to
accent the earlier view that it would be justified in deciding the case before it in a
different way”. Thus, if any decision is found inaccurate to the degree that it may
disturb the general welfare of the society, the Supreme Court reconsiders it. But
the Supreme Court does not ordinarily depart from its previous decision except in
the rare above mentioned case.
In Sajjan Singh v. State of Rajasthan,19 Chief Justice Gajendragadkar observed
that:
“It is true that the Constitution does not place any
restriction on our power to review our earlier decisions or
even to depart from them and there can be no doubt that in
matters relating to the decisions of constitutional points
which have a significant impact on the fundamental rights
of citizens, we would be prepared to review our earlier
decisions in the interest of the public good. The doctrine of
the stare decisis may not strictly apply in this context and
no one can dispute the position that the said doctrine
should not be permitted to perpetuate erroneous decisions
pronounced by this Court would be final, cannot be
ignored and unless considerations of a substantial and
compelling character make it necessary to do so, we
should be slow to doubt the correctness of previous
decisions or to depart from them.”20
17 AIR 1976 SC 410, 413. 18
AIR 1968 SC 623. 19
AIR 1965 SC 845. 20
AIR 1965 SC 845 at 865, per J. Gajendragadkar, Available at : https://indiankanoon.org/doc/1629830/ (accessed on May 21, 2018).
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The test to assess this situation poses this question, how to determine that the
previously decided case should be opened and relooked? The answer to this very
question would depend on the nature of the erroneous view in the earlier decision,
its impact on the public good and the validity and compelling character of the
considerations urged in support of the contrary view. One more important factor
which should be taken in account is whether the said decision has been followed
in large number of cases.
Again in Bengal Immunity Company Ltd. v. State of Bihar,21it was reiterated when
Justice Das, the acting C.J. observed:
“References is made to the doctrine of finality of judicial
decisions and is pressed upon us that we should not reverse
our previous decisions except in cases where a material
provisions of law has been overlooked or where the
decisions has proceeded upon the mistaken assumption of
the continuance of a repealed or expired statute and that
we should not differ from a previous decisions merely
because a contrary view appear to us to be preferable. It is
needless for us to say that we should not lightly dissent
from a previous pronouncement of this court. Sometimes
frivolous attempts may be made to question our previous
decisions, but if the reasons on which our decisions are
founded are sound, they will by themselves be sufficient
safeguard against such frivolous attempts. Further, the
doctrine of stare decisis has hardly any application to an
isolated and stray decision of the court very recently made
and not followed by a series of decisions based thereon.
The problem before us does not involve overruling a series
of decisions but only involve the question as to whether we
should approve or disapprove, follow or overrule a very
21 AIR 1955 SC 661.
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recent previous decision as a precedent. In this case, the
doctrine of stare decisis is not a flexible rule of law and
cannot be permitted to perpetuate our errors to the
detriment, general welfare of the public or a considerable
section thereof.”22
In case State of West Bengal v. Corporation of Calcutta,23the Supreme Court
approved this statement and further stated:
“If the aforesaid rule of construction accepted by this
Court is inconsistent with the legal philosophy of our
Constitution, it is our duty to correct ourselves and lay
down the right rule. In constitutional matters which affect
the evolution of our policy, we must more readily do so
than in other branches of law, as perpetuations of a mistake
will be harmful to public interest. While continuity and
consistency are conducive to the smooth evolution of the
rule of law, hesitancy to set right deviation will retard its
growth”.24
4.1.6 Applicability of Law declared by High Court
On similar pattern of the apex Court of India, the decisions rendered by a High
Court at State level, has authority and binding character and it is obligatory for the
subordinate courts at all levels to follow them within its jurisdiction. However, the
subordinate courts and tribunals in jurisdiction of another High Court may look
upon the decision but not obligatory for them to follow it. In M. Abdul Sattar v.
H.A. Hakeem,25it was held that, “if such decision is in conflict with any decisions
of the High court in whose jurisdiction that court is situated, it has no value and
the decision of same state High court is binding on the court.”
22
AIR 1955 SC 661 at 1084, Available at : https://indiankanoon.org/doc/1629830/ (accessed on May 21, 2018). 23
AIR 1967 SC 997. 24
AIR 1967 SC 997. 25 AIR 1976 AP 84.
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In High Courts different courts have their different rules with respect to hearing of
appeals. However, normally bench comprising single judge hears first appeal
whereas bench with two judges entertains murder appeals, special reference
appeals, letters patent appeals, etc. Larger benches considers appeals involving
substantive matter of law.
Three or more judges constitute a full bench. Two judges bench is referred as
division bench. The smallest bench is comprised of a single judge. The decisions
of larger bench are binding on a smaller or co-ordinate Bench. In case, a single
judge bench or a division bench disagree with the viewpoint of bench of
coordinate jurisdiction, the matter in question is referred to a larger Bench for
appropriate decision.26 To summarize, when a bench of a High Court pronounce a
decision on an important question of law, normally it should be followed by other
benches unless they have reasons to differ from it. If any difference of opinion
exists then the question is referred to a larger bench for reconsideration of the
matter. 27
The Section 212 of the Government of India Act, 1935 made the decisions of the
Federal Court binding on subordinate courts and it continued to do so even after
1950 by virtue of the provision of Article 225 of the Indian Constitution, 1950.
However, they are binding only so long they have not been overruled by the
Supreme Court.
In contrast the pre-constitution (1950) decisions of the Privy Council are binding
on all the courts unless they are in conflict with any decision of the Supreme
Court. Article 395 of the Indian Constitution provides the saving clause which
saves the Abolition of Privy Council Jurisdiction Act, 1949, 28 and makes the
decision of the Privy Council authoritative. Section 8 of the Act reads as,
“Any order of his Majesty in Council made on an Indian
appeal or petition whether before, on or after the appointed
day, shall for all purposes have effects, not only as an order
26 S.K. Bhathija v. Collector Thane, AIR 1991 SC 1893. 27 Jaisri v. Rajdewan, AIR 1962 SC 83. 28 (Act 5 of 1949).
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of Majesty in Council, but also as if it were an order or
decree made by the Federal Court in the exercise of the
jurisdiction conferred by this Act.”29
Furthermore, Article 225 of the Indian Constitution states that, “subject to the
provisions of this Constitution and to the provision of any law of the appropriate
Legislature, the law administered in any existing High Court shall be the same as
immediately before the commencement of this Constitution”. The expression “law
administered” includes case laws also. Thus, according to these provisions, the
decisions of the Privy Council given before 1949 continues to have a binding
effect on all High Courts unless they have been overruled by the Supreme Court.
However, in the event there is any conflict between a pre-constitution Privy
Council decision and Federal Court decision, the decision of Privy Council would
prevail. Nevertheless, the Supreme Court can overrule any pre-constitution Privy
Council decisions and in that case it would lose its authority.30
As held in Bina Devi v. Chaturi Devi,31 the term “Law declared’ means not only
the ratio decidendi of a decision but it also includes an obiter dictum provided it is
upon a point raised and argued”. The application of the doctrine get strong by the
ratio decidendi of the case. Thus, it is pertinent to examine the meaning of ratio
decidendi and how it is determined.
Ratio decidendi and Obiter dictum
There are situations wherein the facts of a case involve discussion and elucidation
on certain points of law which gives rise to authoritative interpretation or
application of law. This elucidation is based upon logical set of factors that are
developed on basis of certain principles which are specific to a given situation at
hand. After extraction of important facts and removing the unimportant elements,
the legal principles are finally inferred. The legal principle that comes out, is not
applicable only to that case, but to other cases also which are similar to the
decided cases. These principle are meant to be ratio decidendi. The issues which
29 Section 8, Abolition of Privy Council Jurisdiction Act, 1949. 30 Indian Oil Corporation v. Municipal Corporation, AIR 1995 SC 148. 31 AIR 1953 SC 613.
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do not need determination of any general principles are answered on the basis of
the factual situation of the relevant case in which no principles of general
application are laid down. These are mostly observations of the bench while
developing the principles for elucidation of ratio decidendi. These observations
are obiter dictum. Since the ratio decidendi of the judgement is the rationale to
reach the decision, it carries the binding effect and works as a precedent.
As observed from the above discussion, phenomenal creative function is
performed by the superior Courts for marking new legal heights. Therefore,
Superior Judiciary is performing extremely important function in multiple fields
of social importance. But some techniques or method will have to be evolved to
save the lawyers and the judges from the labour and wastage of the time in finding
out the law from the rapidly multiplying volumes of reports and the constant
danger of overlooking authorities.
4.2 MEANING OF JUDICIAL DISSENT
“If all mankind, minus one, were of one opinion, and only
one person was of the contrary opinion, mankind would no
more be justified in silencing that one person, then he, if he
had the power, would be justified in silencing mankind.”32
The above statement of John Stuart Mill brings to light a noteworthy concept,
commonly referred to as 'dissent'. Dissent is the outcome of the intellectual
thought process of an individual who disagree in opinion with the world. The
statement further suggests that this visionary and inquisitive opinion should not be
rebuked, as it will interrupt the new path of progress. According to John Hoffman,
“if the opinion is vague then humanity again loses, because if the opinion is false
it will be shown to be so, but its expression is useful, for it forces us to restate the
32
John Stuart Mill (1806-1873) was a British philosopher, political economist and civil servant, Available at: <https://en.wikipedia.org/wiki/John_Stuart_Mill> (accessed on May, 21, 2018).
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reasons for our beliefs.”33In conclusion, humanity benefits when a person is free
to express himself, even if he finds himself alone in asserting his opinion.
It would be important to study the origin and growth of writing Judicial dissent in
courts with the historical account and the reasons of its development. Dissent is “a
disagreement with a majority opinion especially among judge”.34The English law
provided the favourable environment to dissenting opinion to lay its roots and
grow. Julia Laffranque states, “Such a style of decision making was initially
adopted in the United States of America but by the end of 18th century the
decision making 'seriatim' was abandoned, and under Chief Justice Marshall the
tradition of 'opinion of the court' was started.”35 While making of final judgement,
the opinion of the judges who were designated for the particular bench, is
separately concluded as either majority or minority opinion. Judges who
maintained a dissenting opinion or concurring opinion could add to the opinion of
the court. Their dissenting opinion or concurring opinion, with forceful majority
view was also published.36
The dissenting opinions got recognition as vital part of the decision-making
process in common law countries. In order to upgrade the independence of judges,
the differing viewpoints, whether majority or minority, were recognized. Not only
this, common law countries gave way to publication of such opinions openly, for
improved judicial administration.37Therefore, Nadelmann opines that, “the ability
of a judge to publish an opinion which rejects the reasoning of his or her
colleagues and explains how the majority has fallen into error is certainly one of
the key indicators of a healthy and independent judicial system.”38
33 John Hoffman & Paul Graham, Introduction to Political Theory, 43 (Pearson Education, 2007). 34 Blacks Law Dictionary, 541 (West A. Thomson Reuters Business, 9thedn., 2009). 35 Julia Laffranque, “Dissenting opinion and Judicial independence”, 8 Jur. Int'l., 162 at 164 (2003). 36
Yogesh Pratap Singh, Judicial Dissent and Indian Supreme Court, 20(Thomson Reuters,Gurgaon,1stedn., 2018). 37 A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe,123(Oxford University Press, 2000). 38 Kurt H. Nadelmann, “The Judicial Dissent: Publication v. Secrecy”, 8.4 Amer. Jour. of Comp. L, 415 at 421 (1959).
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India's triumph over the British Empire is largely a testimony of the people's
power of dissent set in motion by Mahatma Gandhiji. Gandhiji contended, in his
defence, at the great Ahmedabad trial:39
“[A]ffection cannot be manufactured or regulated by law.
If one has no affection for a person or system, one should
be free to give the fullest expression to his disaffection, so
long as he does not contemplate, promote or incite to
violence. But I hold it to be a virtue to be disaffected
towards a government which in its totality has done more
harm to India than any previous system. India is less manly
under the British rule than she ever was before. Holding
such a belief, I consider it to be sin to have affection for the
system.”40
Before independence when millions of Indians were killed, a single Gandhi was a
stronger one man boundary force than the Indian army on other borders, as Lord
Mountbatten had asked. Why? Because the dynamic dissent, with soul's infinite
strength, that Gandhiji expressed against communal lawlessness and, earlier,
against British satanic law, proved the proposition that there is a unlimited power
for human justice in each one of us which can moderate the violent 'lawlessness'
of the law and of life by the non-violent use of soul force.41Gandhiji in wider
perspective explained the duty to dissent:
“We must refuse to wait for the wrong to be righted till the
wrong doer has been roused to a sense of his iniquity. We
must not for fear for ourselves or others having so suffer
remain participatory in it. But we must combat the wrong
by ceasing to assist the wrong doer directly or indirectly”.42
39 V. R. Krishna Iyer, Justice At Crossroads, 187(Deep & Deep Publications, Delhi, 1992). 40 M. K. Gandhi, The Law &The Lawyers,(ULP-An Imprint of LexisNexis, 1stedn.,2016). 41 Supra note 39 at 188. 42 M. K. Gandhi, “The Law of Suffering”, Young India, June 16, 1920.
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4.3 The History of Judicial Dissent in India
Through an article published by Law Quarterly Review, a distinguished Judge of
the Supreme Court of India, Sir Vivian Bose states that:
“[T]he only certainty about the migration of the common
law of England into India is that the English brought it,
their judges administered it and that it infiltrated deep into
the laws of this country and has, to some extent, moulded
its thoughts and customs. The common law is thus so
inextricably intertwined with and has become an integral
part of the Indian legal and judicial system.”43
Now, the foundation of judicial dissent in India will be pondered upon by the
researcher with emphasis upon judicial dissent in the Supreme Court at Calcutta
and other Presidency Court, judicial dissent in Federal Court of India, judicial
dissent in Privy Council and judicial dissent in Supreme Court of India.44
4.3.1 Judicial Dissent in the Supreme Court of Calcutta & Other Presidency
Courts
Due to opposition from committee of secrecy, 45 against the then legal
administration system, drafting of The Regulating Act of 1773 was ordered by the
King of England. This promulgation navigated towards setting up of the Supreme
Court of Judicature at Calcutta by the Royal Charter. The Letters of Patent was
issued on 26 March 1774 to establish the Supreme Court of Judicature at Calcutta.
This Supreme Court had the power as a court of record, with full power and
authority to hear and determine all complaints for any crimes and to entertain,
hear and determine any suits or actions against any of His Majesty's subjects in
Bengal, Bihar and Orissa. 46 Thereafter, King George III got established the
43“ Quoted by Fali S. Nariman, India's Legal System: Can it be saved?, 26 (Penguin Books, 2006)”. 44
Supra note 36 at 60. 45 M.P.Jain, Outlines Of Indian Legal And Constitutional History, 51(Lexis Nexis Buttersworth Wadhwa, Nagpur, 6thedn., 2008). 46 History of Evolution of Judiciary, Available at: <http://supremecourtofindia.nic.in/supct/scm/m2.pdf>
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Supreme Court at Bombay47 and Madras48 too, on 26 December 1800 and on 8
December 1823 respectively.
Reporting of law in India developed after the creation of the Supreme Court of
Calcutta. The two necessary conditions related tolaw of principle of stare decisis
are firstly, the judgement recording and reporting ; secondly the hierarchical
system of courts. Earlier, there was no organised system of law reporting.
Practising leading lawyers and judges made efforts for reporting, periodically.
Their unexpressed purpose was to “to prevent much contrariety of judgement and
to produce uniformity of decision.” Their underlying fear was regarding the
conflict of decisions on vital legal principle.49 In this connection, B.K. Acharya
observed that:
“The judges of the old Supreme Court made no special
effort to secure good reporting. Almost from the earliest
institution of the Supreme Courts the decisions of those
courts were left to the unassisted efforts to private
reporters. Reports were no doubt published some of them
good, some of them of an inferior quality, and there were
periods for which no report at all existed and during which
many valuable decisions passed altogether unreported.”50
Morton’s Report, published in 1841, by Calcutta Supreme Court pertains to be one
such report. This first report covered the data of considerably a long period from
1774 to 1841.The manuscript notes of Justice Hyde and Chief Justice, Sir R.
Chambers, and some more Judges of the Supreme Court provided maximum
volume to the complete compilation. Apart from Morton's Report, there were
other reports, such as, Begnell's Reports, 1830-31, of which only one volume
47“ The Chief Justice Sir Erskine Perry made two collections: one of them was of illustrate the Oriental life and the application of English law to India decided by the Bombay Supreme Court (Perry's Oriental Cases); the other was in the manuscript from which was full and verbatim published in the second volume of Morley's Digest.” 48 The only collection of cases for the Supreme Court of Madras was published in three volumes by Chief Justice Sir Thomas Strange. 49 Supra note 45 at 51. 50 B.K. Acharya, Codification in British India, 162 (S.K. Banerji & Sons, Calcutta 1914).
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appeared. Of Fulton's Reports also, single volume appeared in 1845. Montriou's
Report appeared in 1846, where the compilation of selected cases were copied
from the Morton's Reports. Some more worth mentioning reports are George
Taylor's Report of Cases, 1847-1848, Gasper's Commercial Cases, 1851-1860 and
Boulnois Reports from 1853 to 1859 which appeared in two volumes. Taylor and
Bell's Reports and the three volumes of Casper's Reports of small Cause Court
Cases were also recognized by Supreme Court of Calcutta etc.
The judges and the lawyers at Calcutta Supreme Court were highly educated and
were proficient in English law. The Supreme Court was independent to
administrate with no interruption from the Executive. It also exercised autonomy
in regulation of its own procedure, and followed English Courts at England in
most of the eventualities.51 The English tradition of writing seriatim and dissent
was also adopted by the English judges of Supreme Court at Calcutta.
Another such incident is reported in Morton's report, where Chief Justice Sir R.
Chambers entered in his notebooks for the day of judgement, 11 August 1786,
attesting the reality of a congenial bench:
“Tho’ much indisposed I came into court this day to give
judgment in Griffin v. Deater. Mr. Justice Hyde declines
to any opinion and on which Mr. Justice Jones differs with
me on one material point. Mr. Justice Jones, therefore,
began. He said that he was much inclined to think that the
Act of the Parliament does extend to this country and that
Judges of this Court acting as Justices of Peace do fall
within it.”52
We can reasonably conclude that the judges of the Supreme Court of Calcutta had
taken the stepping stone in laying the foundation of tradition of English common
law courts in India including the tradition of writing conflicting opinions. The
reports of compilation of old cases faded into oblivion as they got out of print and
51 Supra note 45 at 68. 52 Thomas M. Curley & Samuel Johnson, Sir Robert Chambers: Law, literature, and Empire in the Age of Johnson, 508(The University of Wisconsin Press, 1988).
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gradually out of sight.53 Therefore, we do not have the cases to read as even the
senior judges and lawyers also did not possess any single copy. 54
4.3.2 Judicial Dissent in the Judicial Committee of the Privy Council
The Judicial Committee Act of 1833 established the Judicial Committee of the
Privy Council, popularly known as Privy Council. It was the highest court of
appeal for several Commonwealth countries. During its era as the highest court of
appeals from India for the period of about 200 years, Privy Council gave over
2,500 judgments and even today these outstanding judgments constitute the
fountain-source of law on many points in India. The Privy Council was the highest
Court of Appeal for India till 1949. However, the practice of writing individual
opinions was not practiced in this court. The principle reason behind this, it seems
was that the decision was technically in the form of advice to the King. Although
it never happened that the advice of Privy Council was not accepted by the King.
4.3.3 Judicial Dissent in Federal Court of India
The Government of India Act, 1935, established a Federal Court for India besides
altering the unitary government of India into a federal government. The Federal
Court began functioning from October 1, 1937. To begin with, the Federal Court
had a very limited power, confined to original jurisdiction in disputes between the
centre and integral units or inter se amongst the latter, advisory jurisdiction and
appellate jurisdiction on a certificate from the High Court. From 1937 to 15th
August 1947, the Federal Court had only the appellate jurisdiction in
constitutional cases. After Independence, the Federal Court (Enlargement of
Jurisdiction) Act, 1947 empowered the Federal Court to have the appellate
jurisdiction in civil and criminal matters also. But at the same time, its territorial
jurisdiction was reduced, as a result of division of India and Pakistan.
Appeals from Federal Court could go to the Privy Council. With effect from 10th
October, 1949 the complete appellate jurisdiction was vested in the Federal Court
and appeals to the Privy Council were abolished altogether. The recognition of
53 Supra note 45 at 656. 54
Supra note 36 at 64.
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previous decisions as law in India was first time accepted by the Government of
India Act, where it provided that decisions of Privy Council and Federal Court are
binding on all courts in India.55Within this short period of twelve years the Federal
Court judges successfully developed some noble practices like judicial
independence, impartiality and integrity of judges and judicial institution as a
whole, which were inherited by the Supreme Court of India. Further, Government
of India Act, 1935 explicitly provided that judgment of the court will be delivered
by majority of the judges sitting in the bench and judges shall have full freedom to
express their dissent in the bench.56 Judges of the Federal Court were trained in
the common law and in the august company of English judges. Sir Maurice Gwyer
was the first Chief Justice of the Federal Court. Sir Patrick Spens served as Chief
justice between 1943-1947.
Tradition of seriatim along with opinion of court was practiced by the judges of
the Federal Court. The success of this institution is very well reflected in
Madholal v. Official Assignee of Bombay, 57 where a bench of four judges,
judgment was given by the majority of 3:1 and unexpectedly the dissenting judge
was Chief Justice Kania, which is not a usual phenomenon.
4.3.4 Judicial Dissent in Supreme Court of India
Post-independence the new Indian Constitution was adopted on 26th January,
1950, and the Federal Court gave way to the Supreme Court of India under the
new Constitution. Borrowing the traditions of Government of India Act, 1935, the
new Constitution vested the Supreme Court with the power of declaring the law
58and to frame rules and regulations for regulating its own proceedings. Article
145(5) of the Constitution of India, provided that judgment of the court will be
delivered by the majority, but judges shall have freedom to write their dissenting
55 See S.212, Government of India Act, 1935. 56 See S.214 (4), Government of India Act, 1935 (It reads as: “No judgment shall be delivered by the Federal Court save in open court and with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this subsection shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment”). 57 AIR 1950 FC 21. 58 See Article 141, Constitution of India, 1950 (It reads as: “Law declared by Supreme Court of India shall be binding on all courts within territory of India”).
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opinions. The very first example of dissenting opinion in the history of Supreme
Court of India was recorded by Justice Fazl Ali in the famous case of A.K.
Gopalan v. State of Madras59 which was accepted as the true law after 27 years in
Maneka Gandhi v. Union of India.60
The foundation of the Supreme Court of India was also built on the paths of the
English courts. The tradition of writing seriatim with the question of court is
evident in the opinion writing of the Supreme Court of India. 61 The modern
American trend of writing individual opinions along with opinion of the court is
perceptible in the Supreme Court of India, where in a case we can get variety of
separate opinions. In the case Kesavananda Bharati v. State of Kerala,62 the 13-
judge Constitutional bench of the Supreme Court deliberated on the limitations, if
any, of the powers of the Parliament vis-a-vis of fundamental rights of an
individual. In a piercingly divided judgment, by a margin of 7-6, the court held
that, while the Parliament has “extensive” powers to amend the Constitution
including the chapter of fundamental rights but it cannot destroy or emasculate the
basic elements of fundamental features of the Constitution. Chief Justice Sikri
delivered opinion of the court. J. Shelat and J. Grover joined him relying more on
an implied limitation on the amending power which prevented the parliament
from changing the identity of the Constitution or any of its basic features. Justice
Hegde and Justice Mukherjee also agreed with the chief Justice though in their
separate opinion they held that ‘the building of a welfare state is the ultimate goal
of every government but that does not mean that in order to build a welfare state,
human freedoms have to suffer a total destruction’. Justice Reddy agreeing, with
opinion of the court, but writing his separate opinion, held that though the power
of amendment was wide, it did not comprehend the power to totally abrogate or
emasculate or damage the identity of the Constitution. Finally, Justice
H.R.Khanna broadly agreed with the aforesaid views of the six learned judges but
wrote his separate concurring opinion. Justice A. N. Ray led the minority and 59 AIR 1950 SC 27. 60 AIR 1978 SC 597. 61 Available at : <http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3371> 62 AIR 1973 SC 1461.
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Justice D.G. Palekar, Justice S. N. Dwivedi, Justice M.H. Beg, Justice K.K.
Mathew and Justice Y. V. Chandrachud joined him and wrote their separate
dissenting opinions. In this process total eleven separate judgments were written.
On 10th February, 1970, a bench of 11 judges by a majority of 10 to 1 had voided
the Bank nationalization Act, 1969 in R. C. Cooper v. Union of India63 under
Article 31(2) on the ground of inadequacy of compensation even though the
adequacy of compensation had been made expressly non-justiciable by the 4th
Amendment 1955. Justices Sikri, Shelat, Hegde& Grover were parties to the
majority opinion and the single dissenting judge was Justice A.N. Ray.64
On 15th December, 1970 in Madhav Rao Scindia v. Union of India65 the Supreme
Court by a majority of 9 to 2 nullified Government's Orders of 6 September, 1970
for the derecognition of the former princes and their privileges. The majority
judges included Justices Sikri, Shelat, Hegde and Grover and the minority
dissenting judges were Justices Mitter and Ray. To overcome the majority
judgment, the 26th Constitution Amendment 1972 was made to derecognize the
former Rulers. This amendment was also under challenge in the Kesavananda66
case.67 In the present practise, dissenting judgements seem to be used as a tool to
attract attention and therefore, gone very common in the superior court. The basic
purpose of development of dissent was to break the unlimited power of the court
so that equal power could be enjoyed by the Legislature also. But now it is being
practiced with this belief that dissent helps in making a better law. Todd
Henderson observed that, “Thomas Jafferson and Justice Stone made the same
arguments about the value of dissent. We remember that Jefferson wanted to
shrink the power of the court, while Stone presumably wanted to increase it or, at
least, kept it the same.”68 As Justice Brennan argued in defence of dissent that
63
AIR 1970 SC 564. 64 T.R. Andhyarujina, The Political Overtones Of The Kesavananda Case, 12(ULP Co. Pvt. Ltd., New Delhi, 1stedn.,2012). 65 AIR 1971 SC 530. 66
AIR 1973 SC 1461. 67 Supra note 64 at 13. 68
M. Todd Henderson, “From Seriatim to Consensus and Back Again : A Theory of Dissent”, 363 Univ. of Chicago, Law and Eco., Olin Working Paper, 43(2008), Available
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dissents are offered as a corrective in ‘the hope that the court will mend the error
of its ways in a later case’. The success of Justice Fazal Ali's dissenting opinion in
A.K. Gopalan v. State of madras, 69 Justice H.R. Khanna's dissent in Habeas
Corpus case, 70Justice Holmes's dissent in Lochner v. New York,71and Justice
Harlan's dissenting opinion in famous Homer Adolph Plessy v. Ferguson72prove
the above proposition beyond any doubt that the practice of dissent is a vital
ingredient of judicial determination of real facts and issues.73
Dissent is a powerful tool of the law and hence it is used to achieve the ends of the
law, whatever they may be. Modern age is an age of dissent and the old age
practice of writing dissent which has travelled long despite several changes and
criticisms, will continue to flourish.
Justice William O. Douglas observed:74
“We must expect of judges the fortitude and courage that
we demand of all other servants who man our public
posts. If they are true to their responsibilities and
traditions, they will not hesitate to speak frankly and
plainly on the great issues coming before them. They will
prove their worth by showing their independence and
fortitude. Their dissents or concurring opinions may
salvage for tomorrow the principle that was sacrificed or
forgotten today.”75
Dissent is not just about modernity's quest for deliberative democracy or
necessary for the proper functioning of a Supreme Court. It is also an inbuilt
at: <http://papers. Ssm.com/so13/papers.cfm?abstract_id=1019074> (accessed on October 28, 2017). 69 AIR 1950 SC 27. 70 ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. 71 198 U.S. 45 (1905). 72 163 U.S. 537 (1896). 73
Supra note 36 at 69. 74
William O. Douglas, Associate Justice of US Supreme Court from 1939 to 1975. 75 William O. Douglas, “The Dissent: A safeguard of Democracy”, 32 J.AM. Judi.Soc., 104 at105 (1948).
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intra-organ control which supervises the deliberations of majority. It is not only
necessary to ensure to legitimacy of the court, but also gives law of authority to
resolve controversial social issues by bringing diverse opinions on surface.76
J. Krishna Iyer states, “Today’s dissenting view might have weight to become the
law of tomorrow.”77Dissent is ethics in democracy and posthumous glory of
prophets and judges, if played over the flame of conscience, wisdom and
discipline. The seminal rule of stirring the sensibilities and prodding the
conscience of the country belongs to judges who foresee the future and to
jurisconscients who fashion its fabric. If the Judiciary itself is jittery and minister
uncertain of the morrow, if terror and horror are the lot of the weaker gender and
down-trodden sector, silence is sin and dissent is a duty. The explosive syndrome
or passivist pathology are grave risks to our Secular Socialist Republic. Then the
therapeutic process of activist protest and functional dissent finds its finest hour of
fulfilment.78Public control of the courts or putting it in another way accountability
of judges is weakened if dissents are hidden. It is though publicity alone,
Bentham said, that justice becomes the mother of security.79
4.4 CONCLUSION
In this historical survey, the researcher found that the deliberation on the opinion
delivery traditions in the Anglo- American courts is nothing but the authority of
court and it has provided dramatic testimony to the power of institutional
arrangements in structuring individual behaviour.80
On one hand the principles of precedents are strength of Indian legal system, but
on the other hand, the trend of opinion is in favour of freedom from the binding
effect of precedents. At the first place these two trends may appear divergent but
they are not so, and are perfectly consistent. It is the creative spirit that desires the
removal of the shackles of the binding precedents. However, the decisions of
76 Supra note 68 at 40. 77 Supra note 39 at 187. 78 Ibid. 79 Jeremy Bentham, “Draught for the organization of judicial establishments”, 4.3 The works of Jeremy Bentham, 17 (1843). 80
Supra note 36 at 67.
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higher tribunal shall remain binding on subordinate courts. There is no possibility
of departing from this rule in the near future, nor are there very strong reasons for
it. In India, the doctrine is not likely to undergo any considerable modification. It
will help in bringing about national integration and uniformity in the law, and will
cause a uniform development of law.
The study of this chapter reveals that permitting or not permitting dissent is not
just about getting better law per se, but also about evolving a defined role of
courts to establish new practices that would lead to enrich the jurisprudence of
precedents. It also shows that the institution of judicial dissent has notably proved
its worth in the countries primarily based on common law.81
81
Id. at 69.
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