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



Some members of the legal fraternity have criticized me for authoring article titled ‘Referring Questions of Law to Larger Benches is in Ignorance of the Doctrine of Stare Decisis’ as it amounts to too sharp a criticism of the Supreme Court. When i was a young lawyer, for instance when the Judges 2 case was delivered, i felt the judgement to be a re-writing of the constitution. The Supreme Court snatching away the powers of the executive. I felt the Judges 2 case cannot even be called a judgement because there was no cause of action. There existed no one as a ‘person aggrieved’, no infringement of legal rights were complained, no legal remedies were sought. I was amazed. I shared my thoughts with late Justice Nambiar, who then was a close lawyer friend of mine. He too agreed with me. But I lacked the courage to speak. Even if i had dared, nobody would have listened to me then. Even as a young lawyer, I felt almost everything in practice in the SC to be contrary to the fundamental principles of jurisprudence. I felt the basic structure of Kesavananda Bharati case to be against the very first principles of jurisprudence, namely, right, remedy, forum. I felt that constitutionality of a statute can only be challenged in a civil court and the SC’s role is only that of a final court of appeal. As years passed my conviction only got further strengthened, because those who disagreed with me were unable to give a logical reasoning.

I am very unhappy about the current status of affairs. I wouldn’t have been as vocal as i am today but for the most unfair attack on me by Chief Justice Mohit Shah and of late, by Justice Nariman. Many would expect me to be very spiteful of them and won’t believe me if i say that i have forgiven them, take their attack on me as a blessing in disguise. But for that, these issues concerning transparency and reforms wouldn’t have found a place in my thoughts and dreams as it has today.

I am 61 now. Reforms in the judiciary is my life’s mission. It is not against any one, much less against the judicial dynasties i relentlessly criticize.

Coming to the immediate reason for this write up, i admit that I ought to have employed a simpler language in my article, because the subject maybe a little intricate. Let me try to explain it by citing an example. Assume in a case, Ram v. Mohan, heard by a bench of 5 judges. 4 judges hold that a goat is a dog. The reason being both have two eyes, two ears, four legs and a tail. The sole dissenting judge however says that while a dog barks, a goat does not, while a dog eats meat, a goat does not, etc. The parties to the case namely, Ram and Mohan are bound by the judgement, no matter whether it is right or wrong. Because it amounts to _res judicata_ . However, in future cases between Jamal and Jabbar, the majority opinion will not be binding, because the reason for the decision of the majority is wrong. The future judge is bound to follow the minority view, because that alone appeals to reason. The concept of _stare decisis_ means the _ratio decidendi_ or the reason for the decision of a superior court shall be binding on subordinate courts. That was the principle that was practised since the days of Justinian, Coke, Blackstone. However, everything was unsettled by Lord Halsbury in 1898. Article 141 of the Constitution has given a constitutional imprimatur to the error which Halsbury committed. In 1966, the House of Lords undid the error.

The criticism i offer is no disrespect to the institution of judiciary. The right to dissent is the very essence of democracy. “Reason is the very life of law”.