*Referring Questions of Law to Larger Benches is in Ignorance of the Doctrine of Stare Decisis*

It is said that even Homer nods at times, meaning that sometimes even very eminent and scholarly men err, for, to err is human. Lord Halsbury, known for his monumental work titled “Halsbury’s Laws of England”, in London Street Tramways Co. v. London County Council [1898] AC 375 (HL), had held that House of Lords is bound by its own decisions. That was a great deviation from the view hitherto then in force that no precedent is absolutely binding, but is only a guidance. Justinian, known for his great work called “Corpus Juris Civilis”, so too Chief Justice Edward Coke and Blackstone known for their works “Institutes of the Laws of England” and “Commentaries on the Laws of England”, respectively, only contemplated that not the judgment, but the principle evolved in a judgment, the ratio decidendi, will be applicable to future cases as a precedent, the principle being stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.

2. When Halsbury delivered the judgment in the case of London Street Tramways Co., no judgment was treated as a legislation or in substitution of a legislation. What was the precedent is the principle, if any, which a Court has evolved for the first time for resolution of the controversy before it for which no principle was available. Halsbury was such a tall figure that his decision that the House of Lords shall be bound by its own decisions was not questioned by anyone; there was no occasion for it as his view did not create any difficulty because what was a precedent was the reason for the decision and nothing else.

3. In the Government of India Act of 1935, it was expressly provided that the ratio decidendi of the judgment of the Federal Court and Privy Council shall be binding on all Courts and Tribunals within the territory of British India. The Constituent Assembly incorporated Section 212 of the Government of India Act in the Constitution of India, though it was worded differently. 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.”

But for Article 141, the law would have been simple, offering no difficulty even for a common man to comprehend. Chief Justice Edward Coke said that law is reason. The concept of precedent also is nothing but reason, namely, the ‘reason’ for a decision which a superior Court has adopted to be binding on coordinate Courts and subordinate Courts. However, we understood and interpreted Article 141 differently from what it ought to be in jurisprudence. In actual practice, we forgot the concept that what is a precedent is the ‘reason’ for the decision, namely, the principle, if any, which the superior Court has evolved for resolution of a dispute before it, and the ‘reason’ for the decision when repeatedly applied by superior Courts become settled principles. Our Judges misunderstood Article 141 as the power to legislate, and each sentence and word of a judgment became the law of the land. The concept of the ‘reason’ for the decision being repeatedly applied and thus assuming great authenticity was forgotten and our lawyers and Judges treated the latest decision on a subject as the binding one.

4. When Judges started legislating, completely misunderstanding the scope of Articles 141 and 142, a new era of large number of judgments, which cannot stand together, conflicting with each other, became the order of the day. The new practice of referring cases to larger Benches, because two judgments are in conflict, both involving no particular legal principle, became very common.

5. What is stated above could be said as the preface to the scenario leading to the constitution of a Five-Judge Bench to authoritatively decide which of the interpretation given by two different Three-Judge Benches of the Supreme Court about Section 24(2) of the Land Acquisition Act is the correct one. In Pune Municipal Corporation case, 2014, a Three-Judge Bench headed by Justice R M Lodha took the view that merely because the Government has deposited with the court the compensation amount to be paid to the land holders whose property was acquired, their right is not lost if the property is not utilized for the purpose for which it is acquired, but only if they have accepted the compensation. In 2018, another Three-Judge Bench headed by Shri Justice Arun Mishra in Indore Development Authority took a contrary view holding that the judgment rendered by the earlier Three-Judge Bench is per incuriam. A Bench headed by Justice Lokur wrongly faulted Shri Justice Arun Mishra for taking the said view observing that he was bound by the earlier decision in the Pune case. Justice Arun Mishra was unfairly accused of judicial impropriety. On the very next day, Justice Mishra, taking note of the observation of Justice Lokur, requested the Chief Justice of India to refer the issue for consideration of a larger Bench. The Hon’ble CJI accordingly constituted a Five-Judge Bench headed by Justice Arun Mishra. When the said Bench assembled to hear the question, which was referred to it, some associations of farmers sought recusal by Shri Justice Mishra on the premise that His Lordship has already taken a view on the subject and, therefore, it is inappropriate for him to head the Bench, a proposition which has no foundation in jurisprudence.

6. I am afraid to say that the entire controversy has its root in the failure to be kept abreast of the first principles of jurisprudence. We forget very simple things; we are not often thorough enough about the concepts like res judicata, stare decisis, res inter alios, nullity, etc. The practice of referring a case to a larger Bench for decision on important questions of law is in ignorance of the first principles. As I said at the outset, law is reason, not numbers, at least when it comes to stare decisis. The number has relevance only when a Bench of three or more Judges decides a case and the judgment constitutes to be res judicata. If a Bench of three Judges is to decide a case between A and B, what matters is not the validity of the reason offered by the Judges, but who are in majority. The majority decision as res judicata will prevail, no matter right or wrong. This principle which is only applicable to res judicata, we have been applying erroneously to the doctrine of stare decisis. We did not accept the minority view in A K Gopalan’s case as stare decisis because we got confused with the distinct concepts of res judicata and stare decisis. To repeat, so far as res judicata is concerned, all that matters is the majority view. On the contrary, so far as the doctrine of stare decisis is concerned, it is not the majority view which ought to matter, but the ‘reason’ for the decision. If reason for the decision is understood as the meaning of Article 141 and is followed in actual practice, we will be freed from the slavery and absurdity of needing to search for the law applicable from the thousands and thousands of judgments, reported and unreported and groping in darkness, not knowing what the law is. The majority view if rendered per incuriam will bind none, not even its authors and the minority if not per incuriam is binding as a precedent. The doctrine of res judicata often would mean injustice because unless we accept an erroneous decision of a court, acting within its jurisdiction, in conformity with the principles of natural justice and not involving any violation of the express statutory provisions as final, authoritative and binding, there can be no end to litigation – interest reipublicae ut sit finis litium (it is to the interest of the state that there be a limit to litigation). The doctrine of res judicata is a necessary evil. If we misunderstand stare decisis for res judicata, which is what we are doing when we advocate that judgements of a larger bench on a reference, like the instant case, be followed would mean that persons who were not parties to a case too ought to suffer the irrational judgements of larger benches. We have suffered enough, for instance the Judges-2 case by which the Collegium system was established, because of Kesavananda Bharathi, PILs are filed claiming no fundamental right being violated but violation of the basic structure. The government could not establish a National Tax Tribunal because some lawyers could get it quashed alleging violation of basic structure. The worst instance in my mind is the quashing of the NJAC because certain “eminent” lawyers pleaded that it is in conflict with the Judges-2 case, which was nothing but the re-writing of the Constitution without the authority of the Parliament. The earlier we realize that, saying law is not reason but brutal majority would be insanity, the better.

7. A strict adherence to the concept of ratio decidendi would mean the principle employed in arriving at a decision and nothing else. Lawyers practising in subordinate Courts understand this principle better than those practising in the Supreme Court, for, when judgments of the Supreme Court, which are contrary to each other, are placed before a Munsiff, he has no option to refer the issue to a larger Bench but to decide it relying upon the various judgments placed before him, which carry the appropriate principle to be applied.

8. Those who agree with me will concede that the concept of stare decisis, which is embodied in Article 141, would mean that the principle which the superior Court has evolved and applied in resolving an issue before it is what is applicable to the coordinate Bench or subordinate Courts as a precedent and that the strength of the Bench does not matter at all, only the principle employed. I am sure that vast majority of my brothers and sisters would agree with me that legal principles are not discovered every day and every moment like new planets and moons orbiting the other galaxies forming part of the Milky Way. I am unable to think of even a single principle which the Supreme Court has evolved for the first time during its existence for the last 70 years which never ever existed for resolution of an issue before it which could act as a precedent, except the much hallowed doctrine of basic structure, which is founded on sand, being in conflict with the first principle of jurisprudence, ubi jus, ibi remedium – where there is a right there is a remedy- right, remedy and forum. Constituting Constitutional Benches of five or seven Judges is extremely counter-productive, for, it will cement the erroneous concept that precedent means numbers and not the reason for the decision or the principle employed. The earlier we repeal Article 141, the better for our legal system.