Res judicata qua stare decisis- Is our constitutional law built on sand?
Thanks a lot for taking the trouble to read the 26 page review petition. I would recommend to all lawyers and even non lawyers with an academic interest in matters concerning law to carefully go through the same. Even the greatest of judges and lawyers failed to notice that what is binding so far as the concept of res judicata is concerned is the decision. For instance, where a majority in a bench of five judges (4:1) hold a goat as a dog from the point of view of res judicata, that decision is truth, no matter it is ex facie erroneous. However, as far as the concept of stare decisis or precedent is concerned, the decision of the minority that goat is not a dog is the binding ratio. Because the majority decision is erroneous.
However, to repeat, so far as res judicata is concerned, the erroneous decision is binding on the parties to that case, because jurisdiction means the power to bind the parties, even by an erroneous decision. Otherwise there will be no finality. To repeat, so far as precedent or Article 141 is concerned, the reason for the decision alone matters. In this country, the “decision” and the “reason for the decision”, two distinct concepts are failed to be noticed. Am afraid to say the entire Indian constitutional law is built on sand because the distinction between the ‘decision’ and the ‘reason for the decision’ is failed to be noticed. Elsewhere in the world, a precedent is a principle which has been repeatedly and repeatedly followed and affirmed, in other words a settled principle. In India, what we erroneously worship is the number, not reason, and therefore, we constitute larger benches to overrule judgments of benches of lesser strength. The practice of overruling previous judgments on the strength of mere numbers has no foundation in jurisprudence. We consider the majority decision (7:6) in Kesavananda Bharati as a binding precedent. The 7:6 majority is relevant only so far as ‘res judicata’ is concerned. The Supreme Court erred in applying the decision of the majority as precedent in Minerva Mills, judges 2 case, and nay even in the NJAC case. The court erred on the first principles. So far as Minerva Mills and other cases are concerned, the court ought not have taken the majority opinion in the Kesavananda as the binding precedent. To repeat, precedent is not the ‘decision’ but the ‘reason for the decision’. Applying the analogy of the goat and dog explained above in Minerva Mills and other cases, the Supreme Court ought to have considered the reasoning of the minority if sound as a valid precedent.
In church case, the erroneous reasoning given by the Travancore High Court in the “Vattipanam case” was taken as binding ‘res judicata’ forgetting that so far as the concept of res judicata is concerned what is binding is the ‘decision’ and not the ‘reason for the decision’. Assuming that in the Vattipanam case, the Travancore High Court had held that a goat is a dog then that is binding the parties in the Vattipanam case as res judicata, truth. The Vattipanam case came to an end with the decision of the Travancore High Court as to whom the Vattipanam ought to be paid. The Supreme Court went wrong in treating the reason offered by the Travancore High Court in the Vattipanam case (let us assume it be that a goat is a dog). In Vattipanam case, the Travancore High Court erroneously held that Patriarch has no spiritual powers which is against the faith of the Syrian Christians of Kerala (Patriarch faction). The Supreme Court applied this erroneous reasoning which couldn’t have any bearing as res judicata or precedent while it decided the “Samudayam case” 30 years later in 1959.
- September 29, 2023
- September 29, 2023