25 Judicial Process and Precedential Mechanism in India
Introduction
The judicial process in a country seeks to establish the facts, determine the governing rule of law, and then to apply the rule to the facts. It consists of the practices that are followed by a court system in hearing and judging the cases before it. Rosco Pound gives analysis of judicial process, which involves in the decision of a case according to law: (i) Finding the facts, i.e. ascertaining the state of facts to which legal precepts are to be applied in order to reach a determination; (ii) finding the law, i.e. ascertaining the legal precepts or precepts applicable to the facts found; (iii) interpreting the precept or precepts to be applied, i.e. ascertaining their meaning by genuine interpretation; and (iv) applying the precept or precepts so found and interpreted to the case in hand.1 To be precise, judicial process is the name given to the intellectual procedure by which judges decide cases. It comprehends as the ways of mind, deliberate and sub-conscious, and all the elements in personality, profession and environment which impel a judge to exercise the judicial power and give judgement.2Judicial power3 hence is the power “of a court (of proper jurisdiction) to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”4 Justice Marshall interpreted the phrase ‘judicial power’ as power to declare authoritatively, what the law is and thus judicial power includes power to declare a law passed by the legislature as void/unconstitutional.5 However, a group of scholars on the Supreme Court of United States argues that the framers did not mean for the Supreme Court to have authority to void Acts of Congress.6We can draw a similar inference from the plain reading of Article 13(2) of the Indian Constitution which is the source of power of judicial review.7 Absence of words ‘Act and Statute’fromthe definition of ‘law’in Article 13(3)8 may be argued as a justification of similar intent of framers of Indian constitution.
Though the terms ‘judicial power’ and ‘jurisdiction’ are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit9 or as the power to entertain the suit, consider the merits and render a
1ROSCO POUND, JURISPRUDENCE, 4 THE LAWBOOK EX, LTD, UNION NEW JERSEY 6 (2000).
2ENCYCLOPEDIA OF SOCIAL SCIENCES, THE MACMILLAN COMPANY, NEW YORK 7.450(1962).See also, 8ENCYCLOPEDIA OF SOCIAL SCIENCES, THE MACMILLAN COMPANY, NEW YORK(1962).
3Article III, U.S. Constitution (It provides that “Judicial Power of United States shall be vested in the Supreme Court of United States of America.)
4SAMUEL MILLER J., ON THE CONSTITUTION, NEW YORK, 314 (1891).
5SeeMarbury v. Madison5 U.S. 137 (1803). (Supreme Court of United States in this historic judgement prepared the foundation for exercise of power of judicial review under Article III of the Constitution.)
6Randy E. Barnett, The Original Meaning of the Judicial Power, GEORGETOWN UNIVERSITY LAW CENTER, (2004), available at: http://scholarship.law.georgetown.edu/facepub/839.
7See Article 13(2), Constitution of India, 1950 (It provides that “the State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”.)
8See Article 13(3), Constitution of India, 1950 (It provides that “in this article, unless the context otherwise requires,
(a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” It is clear from the bare reading of both the clauses of Article 13 that definition of ‘law’ given by the constitution only provides the law made by the executive and not the legislature.
9SeeUnited States v. Arrendondo, 31 U.S. 691(1832).
binding decision thereon. But the Supreme Court of United States clarified the distinction between two and observed that “Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.”10 Indian judicial system more or less follows the similar pattern. This study would deal with the exercise of judicial power by the dissenting judge.
Understanding Judicial System: Indian Scenario
There is no denial of the fact that, the modern edifice of Indian judicial system is the gift of the British Raj. However, the structural pattern of British legal system was sharpened further by the drafters of our Constitution. Patterned on the English adversarial system, the Indian judicial system has one integrated court system to administer state and union laws. At the top of the court structure in India is the Supreme Court of India, followed by the twenty-one High Courts that may serve one or more states. Below these High Courts are subordinate courts that comprise the District Courts and other local courts.11
Being the apex judicial body the Supreme Court is endowed with many constitutional responsibilities of which most significant is the protection of fundamental rights of the people.12 To discharge these obligations, constitution has conferred enormous powers on the Supreme Court including the power to declare what the law is.13The jurisdiction of the Supreme Court
10SeeWilliam v. United States, 289 U.S. 553, 566 (1933).
11At district and lower level we have subordinate courts dealing with civil and criminal matters. Civil courts (Civil judge Jr. Division, Civil Judge Sr. Division, Additional District Judge and District Judge) administer civil law in accordance with their jurisdiction as prescribed by the Code of Civil Procedure and criminal courts (Judicial Magistrate Second Class, Judicial Magistrate First Class, Chief Judicial Magistrate, Additional Sessions Judge and Sessions Judge) administer criminal law according to Code of Criminal Procedure. The subordinate judiciary in each state is headed by a District Judge (for civil cases) or Sessions Judge (for criminal cases). District/Sessions Judges are appointed by the Governor in consultation with the High Court of State. The High Court of a State has full administrative control on the functioning of these subordinate courts. See Articles 233, 234 & 235, Constitution of India.
12See Article 32, Constitution of India, 1950.
13See Article 141, Constitution of India, 1950 (It provides that “the law declared by the Supreme Court shall be binding on all Courts in India.” Constitution also entrusts the Supreme Court with the power to do complete justice in a matter pending before the Supreme Court vide Article 142 of the Constitution of India.) broadly can be divided into three categories (i) original jurisdiction14 (ii) appellate jurisdiction15 and (iii) advisory jurisdiction.16
In short, Supreme Court is the final interpreter of the constitution and guardian of people’s fundamental rights. It is the ultimate court of appeal in all civil and criminal matters and the final interpreter of the law of the land, and thus helps in maintaining a uniformity of law throughout the country.17
The stability and efficacy of the judicial process in implementing the rule of law is guaranteed by the independence of the courts and judges. Sir Guy Green puts forth the view that judicial independence is not “a principle of self-evidence validity”. Its validity is derived from the fact
14See Article 131, Constitution of India, 1950(Original jurisdiction is required when there is a dispute between the Union Government and the provinces of India or between two states etc. The Supreme Court can also be approached directly to enforce fundamental Rights according to the Article 32 of the Constitution of India. Another original jurisdiction of Supreme Court is under Article 71 of the Constitution which states that all doubts and disputes arising out of or in connection with the election of the President and Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final.)
15The appellate jurisdiction is mentioned in Articles 132(1), 133(1) or 134 of the Constitution of India. Article 136 gives an extraordinary power to Supreme Court in its discretion to hear against any order, judgement and decree or any court or tribunal in India.
16See Article 143, Constitution of India, 1950 (This gives power to the President to refer any question of law or question of fact to the Supreme Court.).
17M. P. JAIN, INDIAN CONSTITUTIONAL LAW. LEXISNEXIS BUTTERWORTHSWADHWA, NAGPUR. (5th Ed.,2009), 191.
that the maintenance of judicial independence is a necessary condition of the existence and the maintenance of other values and constitutional principles which are regarded as being fundamental.
The judge’s functions are to decide individual cases, independently, and to act as a custodian of the law. Impartiality must be assured to fulfil the first function, particularly when judges are required to make value judgments, such as reasonableness, fairness and justice. In exercising judgment the judge must apply values “ultimately derived from those prevailing in the community”. This is not just the application of public opinion. The judicial function as custodian of the law is “essential to the maintenance of parliamentary democracy and the rule of law”.18 As a political concept the ‘rule of law’ has as at least one main strand, the minimization if not the exclusion of human arbitrariness from the process of law and government.19 This provided a sound justification to doctrine of stare decisis in the common law system. The doctrine of stare decisis, in addition to whatever it may enjoin upon the intellect, certainly evokes an atmosphere and a mood to abide by ancient decisions, to follow the old ways, and conform to existing precedents. It suggests a condition of rest, even of stasis, a system of law whose content is more or less settled, the past content by past decisions, and the present and future content because they too are controlled by those past decisions.20 The assumed emergence of new decisions from those of the past would depend only on correct judicial reasoning and not on judicial choice and will. And the notion of stare decisis would thus run into the notion of ‘the rule of law’, as in Bracton’s famous subjection of the King not to man but to God and the law. If we could wholly accept the idea that present and future decisions are determinable and determined on the basis of stare decisis then indeed we would finally have attained the dream of being under a government of laws and not of men.21 The principle of stare decisis or law of precedent is thus one way by which the courts respect the legitimate expectations of the community.22Four categories of precedents are known in the legal parlance viz. Original precedent, declaratory precedent, binding precedent and persuasive precedent.
18Sir Guy Green, The Rationale and Some Aspects of Judicial Independence, 59 AUS. L. JOUR., 135 (1985).
Available at: http://www.uow.edu.au/law/LIRC/CourtResources/courtandjudiciary.html.
19Julius Stone, The Ratio of the Ratio Decidendi, 22.6 MOD. L. REV. 598 (Nov. 1959).
20Id.
21Id at 599.
22Jack Knight & Lee Epstein, The Norms of Stare Decisis, 40. 4AMER. JOUR. OF POL. SCIENCE, 1021 (Nov. 1996).
When there is no previous decision on a point of law that has to be decided by a court, then the decision made in that case on that point of law is an original precedent. When the court has to form an original precedent, the court will reason by analogy (considering the cases that are nearest to it in principle). The declaratory theory propounds that judges only interperet the law which is made by the legislature.23 A precedent is binding precedent when legal point involved is the same as the legal point in the case now being decided. The earlier decision was made by a court above the present court in the hierarchy, or a court at the same level which is bound by its own past judgments. Lastly, a persuasive precedent is one which the court will consider and may be persuaded by, but which does not have to be followed, such as obiter dicta, a dissenting judgment or ratios from decisions by courts lower in hierarchy.
23Blackstone was the profounder of this theory of precedent.
Principle of Stare DecisisandIndianJuridical Perception
Law is to a great extent what judges say it is, and how they say it, is one of the primary sources of legal authority in India.24However, there are two pre-conditions of law of precedent i.e. Hierarchy of Courts and System Law reporting (recording of judgments of the Courts). Indian legal systemfulfills these two conditions. Our judicial system provides a hierarchy of courts (see figure) with the Supreme Court at the top. The decisions of the constitutional courts are preserved. Article 141 of the Constitution provides that the law declared by the Supreme Court “shall be binding on all courts in India.” The intent of this provision has transcended well beyond the Blackstonian fiction that judges merely interpret the law.25As far as second condition is concerned, with the creation of the Supreme Court of Calcutta, law reporting also begun in India. In the beginning, though there was no organized system of law reporting but with the establishment of Supreme Court of India, law reporting in India was institutionalised. While on one side there is official reporter of judgements of the Supreme Court and High Court,on other side we find numerous recognised private reporters.
24 M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, UNIVERSITY OF CHICAGO, LAW AND ECONOMICS, (Olin Working Paper No. 363, 2008), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019074.
25RAJEEV DHAVAN, THE SUPREME COURT OF INDIA, N. M. TRIPATHI PRIVATE LTD., BOMBAY. (1977) 38.
Undisputedly judges rely on precedent but at the same time are able to devise ways and means to get away from the binding effect of what they feel is bad precedent. Critical literature26 started appearing from 1920s against the classical doctrine of precedent, and recent case law suggests judges are prepared (though with important reservations) to use the doctrine of precedent merely to perform the function of maintaining a continuity in the law without allowing the doctrine to prevent them from dissenting from the views of an earlier case.27
Indian Supreme Court favours the doctrine of precedent on the ground that the law must be certain. Accordingly some judges would not be very keen to overrule earlier cases. In Keshav Mills v. I. T. Commissioner,28 Justice Gajendragadkar laid down a number of reasons for not overruling a case. He observed that:
Unless considerations of a substantial and compelling character make it necessary to do so, this Court would be reluctant to revise its earlier decisions.29
However, this question was for the first time discussed by the Supreme Court in Bengal Immunity Co. v. State of Bihar,30 where a minority of 3 out of 7 judges31 stressed that the power to overrule a case must be exercised sparingly and with caution. Justice Hegde also observed in Income-tax Officer, Tuticorn v. T.S.D. Nadar32 that:
Every time court overrules its previous decisions, the confidence of the public in the soundness of the decisions of this Court is bound to be shaken.33
Few decades later Chief Justice Y.V. Chandrachud while emphasizing the importance of rule of stare decisis observed in famous WamanRao v. Union of India34 that:
For the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either\
26SeeBENJAMIN CARDOZO, THE NATURE OF JUDICIAL PROCESS (1921), 150 (He says that “But I am ready to concede that the rule of adherence to precedent though it ought not to be abandoned, ought to be in some degree relaxed.”).
27Supra n. 27 at 39.
28Keshav Mills v. I. T. Commissioner, AIR 1965 SC 1636.
29Id.at 1644 ¶ 23.
30Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661
31Id at 743, 755(Justice T LV Aiyar at page 743 (¶186), Justice Sinha at page 755 (¶213) and Justice Jaganadha Das at page 711-18 (¶ 115-128)).
32Income-tax Officer, Tuticorn v. T.S.D. Nadar,AIR 1968 SC 623.
33Id at 637, ¶37.
34WamanRao v. Union of India (1981)2 SCC 362.
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.35
Despite this declared sensitivity for the rule of precedent, the Supreme Court appears to have overruled itself in a large number of cases.36 Supreme Court, however, has been very strict in ensuring that the inter-hierarchical structure of precedent is retained and stern in admonitory single judges who have stepped out of line or not followed earlier division and full bench decision of their own courts.
Ratio Decidendivs. Obiter Dictum: Indian Complex Scenario
Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent thus involves an application of the principle of stare decisis . In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law. The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum(something said which is not part of the judgement or said by the way).
35Id at 392.
36Supra n. 27, at 40.See for instance an eleven judge bench in I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643, overruled earlier two judgments of constitutional benches namely Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 and later this eleven-judge bench decision was also overruled by a thirteen-judge bench decision in famous KeshvanandaBharati v. State of Kerala AIR 1973 SC 1461. Further the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 overruled A.K. Gopalan v. State of Madras AIR 1950 SC 27 and in Laxaman Chandra Kumar v. Union of India AIR 1997 SC 1125, it overruled S.P. Sampat Kumar v. Union of India AIR 1987 SC 386 etc.
Two different meanings are attributed generally to the phrase ‘ratio decidendi’ in legal and juristic writings. Judges following Lord Campbell in Attorney-General v. Windsor,37 describes that the ratio decidendi is used to signify the rule of law propounded by the judges as the basis of their final verdict of a particular case. The concept, for example, embraces both the explicit formulation by the judge of a proposition, and the implicit formulation.38 While on other hand Salmond and several other jurists attributed this phrase the meaning ‘the part of a case that possess authority’ is the ratio decidendi that is to say, the rule of law upon which the decision is founded.39This is the meaning explicitly adopted by A. L. Goodhart in his article,40 and implicitly by A. W. B. Simpson in his note.41 Thus ratio is the basis of a decision.42
37Attorney-General v. Windsor, (1860) 8 H.I.C.391.See, Wood v. Wood [1957] 2 All E.R.( per Lord Evershed M.R. at pp. l9H, 20I and 21E); Behrens v. Bertram Mills, Ltd. [1957] 1 All E.R.(per Devlin J. at 594A). See also,Midland Ry. v. Western Australia [1956] 3 All E.R. (per IJord Cohen at p. 277I).
38J. L. Montrose, The Ratio Decidendi of a Case, 20.6 MOD. L. REV., 588 (Nov., 1957).
39GLANVILLE WILLIAMS, LEARNING THE LAW, THOMSON, SWEET & MAXWELL, (11th ed., 2009), at 67.
40See, Arthur L. Goodhart, Determining the Ratio Decidendi of a Case (1930) 40 YALE L. JOUR. 161. See also, A. L.
Goodhart, Precedent in English and Continental Law 50 L. QUAR. REV. 40 (1934).
41See, A.W. B. Simpson, The Ratio Decidendi of a Case, 20.2MOD. L. REV. 413 (Nov., 1957).
42There are various tests used by the courts to ascertain ratio decidendi of a case. First test is Goodhart’s material fact test, second Wambaugh’s Reversal test and third is Halsbury test.
In contrast with the ratio decidendi is the obiter dictum,43 which is a mere saying by the way, a chance remark, which is not binding upon the future courts, though it may be respected according to the reputation of the judge,44 the eminence of the court and the circumstances in which it came to be pronounced.45
Due to the wide ambit of Article 141, all the High Courts in India by and large agree that they are bound by even an obiter dictum of the Supreme Court. Justice S. S. Dhavan in Union of India v. Firm Ram Gopal observed:46
It has been overlooked ….(in various authorities cited before me) that the doctrine of supremacy of any declaration of law by the Supreme Court has been made part of the constitutional law of the Republic. It therefore rests on a much loftier pedestal that judicial conventions under which every inferior court is bound to follow previous decisions of a superior court ….Article 141 had the effect in addition to investing the decision of the Supreme Court with a binding force of creating a constitutional organ whose declarations of law pronounced ex cathedra shall be binding on all courts in India.
The question which arises is: what part of the judgement of the Supreme Court is made ex cathedra? Justice Satish Chandra of Allahabad High Court opined that he is not bound by a ruling where the argument in the Supreme Court has proceeded on a concession. Several other High Courts have also observed that courts are bound by an obiter dictum but not by casual observation. Justice Chandrachud of the Bombay High Court also insisted that an obiter dictum is binding only if it is a considered opinion.47 This is in contrast with the opinion of Calcutta
43HALSBURY’S LAWS OF ENGLAND, 26 (4th ed,Reissue), at ¶ 574(The concept of “Dicta” has been discussed in as thus: “Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose in hand are generally termed “dicta”. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as “obiter dicta”, whilst considered enunciations of the judge’s opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed “judicial dicta”. A third type of dictum may consist in a statement by a judge as to what has been done in other cases which have not been reported. … Practice notes, being directions given without argument, do not have binding judicial effect. Interlocutory observations by members of a court during argument, while of persuasive weight, are not judicial pronouncements and do not decide anything.”)
44Justice Mahmood, the first Indian judge of the Allahabad High Court had acquired a great reputation by his judgments. His classical pronouncement in Abdul Kadir v. Salima,(1886) ILR 8 All 149, received universal recognition not only by the High Courts but also by the Privy Council and the Supreme Court. It is said that even obiter dicta of this case carried the legal sanctity of ratio decidendi. Same thing can be said about Justice Michel Kirby and Justice K. SubbaRao.
45Supra n. 42, at 77.
46See Union of India v. Firm Ram Gopal, AIR 1960 All 672.
47SeeVishnu v. Maharastra W & G Co., AIR 1967 Bom. 434 at 437.
High Court that ruling of the Supreme Court are binding even if the point was not argued before the Supreme Court,48 or if ruling proceeded on an argument different from that before them. The High Court of Orissa has taken the view to which Madhya Pradesh High Court is also in agreement,49 that even an obiter is binding unless that court made it clear that its view was intended to be a tentative one.50 Kerala High Court is also of the opinion that judicial propriety demands that even obiter dictum of the Supreme Court should be accepted as binding.51
The Supreme Court in Kausalya Devi Bogra v. Land Acquisition Officer52 has pointed out that the judicial decorum and discipline require that the directions of the Supreme Court should be taken as binding on the subordinate courts. The apex court in Divisional Controller, KSRTC v. MahadevShetty,53 has observed that ‘mere casual expressions carry no weight at all’. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. This view was affirmed by the Supreme Court recently in Girnar Traders v. State of Maharashtra.54
On the basis of abovementioned discussions we are of the opinion that though there is no authoritative pronouncement of the Supreme Court as to whether obiter dictum is binding or not. The general perception amongst High Courts is that it is binding if it is not just a casual remark.
Implications of Precedential Mechanism: Indian Experience
In common law adversarial tradition,55 judges are trained as advocates and they must listen to the evidence adduced in court from which they then construct and balance to arrive at the truth. This
48See Ajaib Singh v. C.W.T., AIR 1969 Cal. 249 at 252. See also Aswinin Kumar Roy v. Kshitish Chandra Sen Gupta, AIR 1971 Cal. 252.
49Re LachmanNandu, AIR 1966 MP 261 at 269.
50F. C. Visalamma v. Jaganandha, AIR 1955 Ori.160 at 162.See alsoNarbada Prasada v. AwadeshNarain, AIR
1973 MP 179.
51See State of Kerala v. ParameswaranPillai, 1974 Ker. L T 617.
52SeeKausalya Devi Bogra v. Land Acquisition Officer, (1984)2 SCC 324.
53SeeDivisional Controller, KSRTC v. MahadevaShetty,(2003) 7 SCC 197
54Girnar Traders v. State of Maharashtra,(2007) 7 SCC 555. (The Supreme observed that “thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi.”)
55According to Advanced Law Lexicon, adversarial procedure means, “A procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision maker. Also termed as adversary procedure and (in criminal cases) accusatorial system or accusatory procedure.” Malimath Committee has recommended that some of the good features of the expression of what the law is to a judge is a judicial opinion and “addresses two matters: result and reason.” The precedent affects Supreme Court decision making in several ways. The conformist opinion explains precedent as the primary reason why judges make decisions that they do. The alternate view considers precedent as a normative constraint on judges deciding cases on their personal preferences. On this account, judges have a preferred rule that they would like to establish in the case before them, but they strategically modify their position to take account of a norm favouring respect for precedent in order to produce a decision as close as is possible to their preferred outcome.
Thus, in order to give the value judgements, judges in the higher courts give reasons for their opinions and orders. In most countries, giving reasons is now an incident of the judicial process. In the course of examining the reasoning process, the researcher will expose a significant difference that persists between common law and most other jurisdictions in the provision of dissenting and concurrent opinions, alongside the expression of the reasons by the majority that explain, as a matter of law, why a particular result has been reached and why particular orders have been made. This tradition of giving judicial reasons in a multi-member court gave birth to offer individual opinions, including opinions which dissents either form outcome and order favoured by majority or at least disagrees with the reasoning given by the majority in their explanation. 56
The imaginative drafters of the Indian constitution realized the significance of the institution of dissent and provided under Article 145(5) that judgement of the court shall be delivered by the Supreme Court save with the concurrence of the majority of judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgement or opinion. However, dissenting judgement will not be part of the ratio decidendi of the case but still have persuasive value.
Inquisitorial System can be adopted to strengthen the India Adversarial System and to make it more effective. This includes the ‘duty of the Court to search for truth’, ‘to assign a proactive role to the judges’, ‘to give directions to the investigating officers and prosecution agencies in the matter of investigation’ and ‘leading evidence with the object of seeking the truth and focusing on justice to victims’.For detail see MALIMATH COMMITTEE REPORT, ¶ 2.5-2.10, at 24-26, available at: http://mha.nic.in/pdfs/criminal_justice_system.pdf. See also Shankar Gopalakrishnan,Recommendations of the Malimath Committee on reforms of Criminal Justice
System,PUCL (May, 2003), available at:http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm.
56Referred as Concurring Opinion.
Constitution also gives power to the Supreme Court to frame rules regulating generally the practice and procedure of the court. In exercise of this power the Supreme Court has framed the Supreme Court Rules, 1963. So far as the binding nature of judgments of Supreme Court inter se, it is clear that judgment of one bench is binding on another bench, of lesser or equal strength. However, if the Single Judge finds that judgment of Division Bench of two Judges is not correct, he can make reference to the Chief Justice to place the matter before another Division Bench of more Judges. Otherwise he is bound by the judgment of Division Bench of two judges. If the Division Bench of two judges differs from decision of another Division Bench of two Judges, it has to make reference to the Chief Justice to refer the matter to the bench of more than two Judges.
Similarly, all subordinate court is bound by the decision of the High courts to which they are subordinate. Decisions of other High court are of only persuasive value for the subordinate court. Thus High court can bind only those inferior courts which are within their territorial jurisdiction.
This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, there are various substantive rules for the interpretation of statutes and large variety of other tools and techniques for legal reasoning and legal argument which are also integral part of the law of precedent. Oliver Wendell Holmes said ‘The life of the Law has not been logic; it has been experience and hence it ispermissible for judges to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision cited as a precedent.