There is no way to salvage our legal system unless and until we abandon the current practice of treating res judicata as precedent

Mathews J. Nedumpara
98205 35428
15.7.2021

There is no way to salvage our legal system unless and until we abandon the current practice of treating res judicata as precedent

In this country, the distinction between the concept of res judicata and precedent is largely forgotten. As a result, a judgment of a superior court in a case between A and B, which may be erroneous but binding on the said parties, becomes binding on C and D, nay, on posterity as the law of the land. Often it is misconceived that every word of a judgment of a superior court is binding, the law of the land. Seldom is it realized that it is difficult to name even a single principle which never ever existed, which our Courts since independence have evolved, to be taken as a precedent. The common law principles which became settled law have been codified into statutes after the governance of India was taken over by the British Parliament by virtue of the Government of India Act, 1958. Statutes constitute to be the very core of our jurisprudence. A judgment may be relevant and useful for the annunciation of a principle. Precedent is a very useful concept, for what a precedent is, is a principle which a superior court has evolved where none existed for the resolution of an issue which was before it. When such a principle is repeatedly followed, it becomes a settled principle of which no deviation ought to be made unless there exist valid grounds. However, we have largely misunderstood the concept of precedent as legislation, nay, even beyond, binding even on third parties as if they were parties to the previous case. The misconception of precedent as legislation and even beyond, has resulted in an extremely sorry state of affairs. It has led to the scenario where, far from certainty of law, which is the utility attributable to the concept of precedent. Today nobody can be certain of the law, or more truly nobody knows the law. It has to be discovered from a large mass of judgments of which many run into hundreds of pages. It is said we have 20 lakhs of reported judgments. Legal knowledge, today, is nothing but one’s ability to access the largest database and find the mass of judgments on a particular subject. When a litigant seeks legal advice, lawyers would search for the latest judgments forgetting the fact that what is a precedent is not an isolated new judgment, but a long line of judgments reiterating a certain principle. This over-reliance on precedents, the Petitioner while acknowledging that precedent is a valuable concept, has resulted in pleadings becoming unduly voluminous. Recently, the Petitioner came across a writ petition which runs into hundreds of pages where in the body of the petitions, extracts from judgments after judgments were extensively made. As if extraction of the reported judgments which constitute 80 percent of the petition itself, was not enough, the Petitioner in the said petition produced a number of judgments as exhibits. This incorrect practice takes a great toll on the judicial system, and an even greater toll on the environment. A writ petition on a simple issue which the instant Petitioner came across, runs into 271 pages. The Petitioner can cite any number of such examples.