The common law, which we adopted by way of Article 372 of the constitution, is the very foundation of our legal system. Precedent, initially in the form of year books and later in the form of reported judgements is one of the major sources of common law, others being Roman law, statute and custom. The treaties of the laws of England by Chief Justice Coke in the 16th century, by Blackstone in the 17th century and by Halsbury in the 19th century are largely based on case laws. The case laws contain the reasoning and the principles evolved by the best of legal minds, over the centuries, to resolve a controversy before it where none existed. Such principles, when repeatedly and repeatedly affirmed by the Courts, became the settled principle of law. Precedent being reason, the reflection of the most accomplished minds, is such a great treasure, which as a student of law, which lawyer always is, has been a great joy and nourishment for my thought process. However, for the last couple of years, i have been campaigning against the very reliance on case law, for its senseless application has put our justice delivery system to great jeopardy. To bring home my point, today, I am coining a new slogan, “burn the law reports and save the judiciary”, as odd as that may sound, in the hope that it will ignite a critical thought process. Precedence being adherence to reason, i am a great devout. The concept of precedent is an extremely useful tool, if understood and applied correctly, in its pristine sense. Precedent is a guarantee for consistency, uniformity and predictability of the judicial decisions. It is a great tool to ensure clarity and certainty, an assurance that like cases will be treated in a like manner.
Let me narrate an incident which I myself experienced recently. I was the lawyer for three entrepreneurs claiming benefit under the MSMED Act. The vacation bench granted an injunction in all the three cases. Later in one of the cases the appeal was allowed and the protection continued. In the second case, the matter was relegated to the trial court but without extending the protection. The third case is still pending.
Going by the fundamental principle, ‘in consimili casu consimile debet esse remedium’, i.e. in similar cases the remedy be similar, the Court have decided all the three cases in the same manner.
Let me share yet another experience. In the last 10 years, on cases of the same subject, while a certain judges have granted ad interim injunction in all cases, certain other judges have denied relief invariably in all cases. My experience as a lawyer for almost four decades makes me believe that there is no law, as strange as that sounds. The judges being fallible human beings are influenced by their own prejudices, likes and dislikes. Most often they may not even realise it, for subconscious prejudices. The undeniable truth, which most readers may find shocking, is that the no court can assuredly do justice. The Roman lawyers, particularly, Ulpian who lived in the first century AD to whose credit the doctrine of res judicata is attributed realised it probably better than anybody else. One of his writings carry the caption ‘Res judicata pro veritate accupitur’, meaning that a judicial decision is to be treated as truth, howsoever erroneous it could be. In other words, if a Court of competent jurisdiction, after conducting a fair trial, holds an innocent man guilty and sentences him to be hanged, he shall be hanged. The reason behind this is that it is in the interest of the republic that a judicial decision should be final and binding so that litigation can come to an end. In other words, the finality of judicial decisions in the public interest. It is not conducive to private interest as well to allow parties to re-agitate a matter which has been finally decided. Ulpian, therefore, advocated the doctrine of res judicata. Our justice delivery system is built on the foundation of the concept of res judicata, namely, finality and authoritativeness of judicial decisions.
Certainty of law and predictability of judicial decisions is the laudable object behind the doctrine of precedent. In the early years of development of law, till the 20th century, the number of reported judgements were few and what was a precedent was the enunciation of a principle where none existed, and its repeated affirmation in subsequent judgements. A settled principle has the equal force of a statue. However, with the proliferation of reported judgements, 2 million in the first half of the 20th century, the case law or precedent has lost most of its value in the United States. In India, prior to independence, the number of affirmative pronouncements of law by the Privy Council, Federal Court, nay, even the HCs were very limited. But with the advancement of technology and the proliferation of the law reports, today, we are facing the same situation which the lawyers in the US faced in the mid twentieth century. Some portals claim to provide even 2 million citations. The judgments of the Supreme Court, HCs and even tribunals are quoted in Courts as “authoritative pronouncements of law”. It has become fashionable to cite a large number of judgements, often of no relevance to the case at hand, while arguing a case. The subordinate judges even face contempt of court/disciplinary action for not relying on the judgements which are cited by the counsels at the bar. Discussion on the actual merits of the case often consume a minor portion of the judgement rendered. Pages after pages are written, extensively quoting judgements cited at the bar.
The lawyers argue even an application for injunction or bail, and for that matter any application of little consequence, referring to a large number of judgements, as if the law to be applied in a specific case has to be culled out from the thousands of pages of citations.
Article 141 is no longer understood as concerning precedent. Every sentence of a judgement of the Supreme Court, often running into hundreds of pages is treated as “law of the land,” far more binding that a statute enacted by the Parliament, the supreme law maker. Article 141, misunderstood as it is, has become a calamity. The British, soon after it took over the administration of the dominion of India in 1858, undertook the trying task of codifying the common law (even before they enacted a law for themselves) into statues such as the Indian Penal Code, CPC, CrPC, Contract Act, Transfer of Property Act, etc. Our legislatures after independence, enacted a large number of legislations concerning every field. It is difficult to imagine an area where there is no statue at all. Our statute books, namely, the laws enacted by the legislatures and the rules and regulations made by the executive itself run into thousands of volumes. With more than 2 million judgements which are all binding precedents within the meaning of Article 141 and otherwise, the hapless citizen has to cull out the law applicable to him from legislation and judgments running into millions of pages. Most of the judgments are contrary to the first principles and contrary to each other. The scenario, today, is that nobody knows the law. Far from certainty, which is the laudable purpose precedent is supposed to serve, our reliance on precedent has led to a situation of absolute uncertainty of law.
I don’t find any room for hope. Our Supreme Court has assumed to itself the role of the ultimate policy maker and legislature. Today, there is no controversy which is not justiciable. The clamour for constitution benches and larger benches is becoming louder and louder. That would mean further addition to the 2million and odd citations, under the weight of which our justice delivery system has been completely crushed. Simple issues, which offer no difficulty in finding a solution, are now made extremely complicated with judgements which run into thousands of pages for no good reason. Today’s lawyer needs no skill for reasoning and analytical thinking, all he needs is a database and the knack to find a large number of judgments on a given subject. To conclude, we must listen to what Ulpian has said, no court can assuredly do justice. The reliance on precedent in no way improves the situation, on the contrary, its senseless application has made it worse. Is it then not wiser, to allow judges to decide cases, according to the letter of the statute (except where it leads to gross injustice) giving reasoned judgements based on facts, as is the case with the civil law countries. I am sure the result would be extremely promising, judgements would be brief, it will discuss the actual facts and controversies, arguments will be brief for long hours spent on the mere reading of judgements after judgements on the same point. Today, by authoring a thousand page judgement, a court can literally say 1+1=0, the reasoning being lost in the endless number of pages. In adopting the Civil law system we stand to lose nothing. The Civil law system, though, does not ensure justice in all cases or absolute certainty of law, since the system today is far worse, there is no reason for any apprehension.
- September 29, 2023
- September 29, 2023