Saturday 17 April 2021

How to rely on a precedent if there are two conflicting Judgments of the Co-equal Bench of the High court or Supreme Court?

  Salmond defines a precedent as a judicial decision "which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi." According to him, it is "the abstract ratio decidendi which alone has the force of law as regards the world at large." Professor John Chipman Gray in his The Nature and Sources of the Law[6] stresses that "it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum."{Para 58}

59. Putting both the above views in perspective, Allen in his Law in the Making[7], observes that "any judgment of any Court is authoritative only as to that part of it, called the ratio decidendi, 6[] (2d ed. 1921) 261 7[] (2d ed. 1930) 155 which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ratio decidendi was."

60. Oft-quoted are the views of Holt C.J., and Lord Mansfield. In Cage v. Acton[8], the former has held that "the reason of a resolution is more to be considered than the resolution itself." Then, the latter has held in Fisher v. Prince[9] that "the reason and spirit of cases make law; not the letter of particular precedents." But in contrast is the now-widely-accepted principle that the ratio decidendi of a case must not be sought in the reasons on which the judge has based his decision.

61. If we consider the recent jurisprudential rumblings on the never-ending debate of what part of judgment will have precedential force, comes to mind the articulation advanced by Garner, et al. In a recent commentary on stare decisis--The Law of Judicial Precedent[10]--the learned authors have elaborately 8[] 12 Mod. 288, 294 (1796) 9[] 3 Burr. 1363, 1364 (1762) 10[] Thomson Reuters, 2016, pp.44-46 treated this principle. According to them, there can be no cavil about what binds of a decision as a precedent. It is the holding.

62. And holding emerges when the ratio--the pure principle of law--is applied to the facts of a case. That is, a holding is what the court decides after combining the facts of a case with the legal principles those facts attract. While holding might be thought to equate more nearly with the court's determination of the concrete problem before it, ratio decidendi is normally seen, according to them, "as a genus-proposition of which the concrete holding is one species or instance." They do admit that the distinction is a fine one for those who observe it. In the end, they declare that ratio requires adherence to the extent possible, but the holding compels compliance fully. Thus, stare decisis admits of no exception to a 'case-holding' in the adjudicatory hierarchy.


63. Then, we can adopt Arthur L. Goodhart's assertion that it is not the rule of law "set forth" by the court, or the rule "enunciated", which necessarily constitutes the principle of the case. There may be no rule of law set forth in the opinion, or the rule when stated may be too wide or too narrow. Goodhart 11[] Determining the Ratio Decidendi of a Case, Yale Law Journal, Dec., 1930 quotes from Oliphant's A Return to Stare Decisis (1927) that the predictable element in a case is "what courts have done in response to the stimuli of the facts of the concrete cases before them. Not the judges' opinions."

64. That said, it is necessary for us to know what the judge has said about his choice of the facts, for what he does has a meaning for us only when we know what facts he has relied on. "A divorce of the conclusion from the material facts on which that conclusion is based is illogical and must lead to arbitrary and unsound results." To cap it, we will once again recall how Goodheart sums up a curious mind's quest to ferret out the elusive ratio decidendi or holding: If an opinion gives the facts, the first point to notice is that we cannot go behind the opinion to show that the facts appear to be different in the record. We are bound by the judge's statement of the facts even though it is patent he has misstated them, for it is on the facts as he, perhaps incorrectly, has seen them that he has based his judgment.

(c) Coequal Benches & the Conundrum of Precedential Conflict:

78. Precedentially, the predominant jurisprudential view--at least until recently--is that among the conflicting judgments of co-equal Benches, the latest should prevail. This school of thought, I am afraid, no longer holds good. Various High Courts, through Benches of varying strength, have ruled on that issue, but still unanimity has eluded.

79. In Jaisri Sahu v.Dubey AIR 1962 SC 83 13[] AIR 2002 SC 2940, the Supreme Court has observed that "law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions." So it has advocated as desirable that if a conflict is found, the question should be authoritatively settled. The better course for the Bench hearing the case would be, according to Jaisri Sahu, to refer the matter to another Bench of superior numerical strength. It is inadvisable for the Bench of lesser strength to take upon itself the task of deciding whether it should follow one decision or the other.

80. But as we see, Jaisri Sahu confines itself to intra-court precedential conflict. That is, it does not refer to the coequal conflicting-judgments of the Supreme Court vis-à-vis the High Courts and other courts down the judicial establishment. This proposition, again, stands affirmed in Delhi Development Authority v. Ashok Kumar Bahel[13]. According to it, two conflicting principles on the same point by the same Court should not be allowed to operate simultaneously.

81. The erstwhile Nagpur High Court has held in D.D. Bilimoria v.Central Bank[14] that the 'the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other'. In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari[15], a Division Bench of this Court was dealing with a similar question under Art.141. It has held that if a clear conflict occurs between two decisions of the Apex Court of an equal number of Judges, the later decision will bind the High Court. Many other High Courts, too, have held the same view: Gujarat Housing Board, Ahmedabad v. Nagajibhai [16], Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur [17], Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. [18], Deputy Commissioner v. Anandan[19].

82. Yet earlier, another Division Bench of this Court in Manasing Surajsingh v. The State Maharashtra [20], has quoted with 14[] AIR1943 Nag 340 15[] AIR 1980 Bombay 341 16[] AIR 1986 Guj. 81(FB) 17[] AIR 1981 All. 300 18[] AIR 1980 Kar. 92(FB) 19[] 1987 (1) KLT 192 (DB).

20[] (1968) 70 BOMLR 654 approval Salmond's observations in his treatise on Jurisprudence21:

"Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be."

83. Long back, a Constitution Bench of the Supreme Court in Atma Ram v. State of Punjab,[22] has however termed this "doctrine of choice" for the subordinate courts "an embarrassment of preferring one view to another, both equally binding upon them."

84. Faced with this ineluctable embarrassment, later a Full Bench of this Court, in Kamleshkumar Ishwardas Patel v. Union of India, has referred to a Special Bench decision of Calcutta High Court in Bholanath v. Madanmohan.[23] It concerns the course to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co- equal strength. Bholanath, in fact, notices the two schools of 21[] 12th Edition Page 153 22[] AIR 1959 SC 519 23[] (1988) 1 CAL LT 1 (HC) thought: (1) that the High Court has no option but to follow the later one; (2) that the High Court is not necessarily bound to follow the one which is later in point of time, but may follow the one which, in its view, is better in point of law.

85. Then, Bholanath has preferred the latter view. In that context it has referred to the ancient Jurist Narada's Dharmashastra Virodhe Tu Yuktiyukta Vidhe Smrita (the Dharmashastras or the Law Codes) and the modern-day Jurist Seervai. That said, Bholanath has acknowledged that highly embarrassing it may be "for the High Court to declare one out of the two or more decisions of the Supreme Court to be more reasonable, implying thereby that the other or others is or are less reasonable." But if such a task falls upon the High Court, it further observes, because of irreconcilable contrary decisions of the Supreme Court emanating from Benches of co-ordinate jurisdiction, the task, however uncomfortable, has got to be performed.

86. As noted in Bholanath, indeed, the redoubtable constitutional expert H.M H. M. Seervai, in his treatise, the Constitutional Law of India, (as often quoted in various judgments) has observed that the Supreme Court judgments "which cannot stand together present a serious problem to the High Courts and to subordinate Courts. It is submitted that in such circumstances the correct thing is to follow that judgment which appears to the court to state the law accurately or more accurately than the other conflicting judgments."

87. And this Court's Full Bench in Kamleshkumar Ishwardas Patel has held that the law as enunciated in Bholanath "has our unqualified concurrence": that the High Court "may follow the one which, in its view, is better in point of law".

(d) Yet Another View:

88. A Special Bench of Five Judges of the Madhya Pradesh High Court in Jabalpur Bus Operators Association v. State of Madhya Pradesh,[24], examined the precedential value of conflicting judgments of coordinate Benches. It has eventually held that if a conflict occurs between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed unless it is explained by the latter Division 24[] AIR 2003 MP 81 Bench in which case the decision of latter Division Bench shall be binding.

89. Indeed, Jabalpur Bus Operators Association has observed that High Courts and Subordinate Courts should lack the competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate against the hierarchical supremacy of Courts.

(e) The Icing on the Cake:

90. In Sundeep Kumar Bafna v. State of Maharashtra AIR [25] , a two-Judge Bench of the Supreme Court faced the conflicting judgments of two "three-Judge Bench" decisions on the question of "custody and arrest." In that context, Sundeep Kumar Bafna has observed that the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains the courts to adhere to the former decision, rather than the later. It pays to quote the Supreme Court's observations:

It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and 25[] 2014 SC 1745 comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench ; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.

(italics supplied)

91. So now, the judicial dictum is unmistakable: A decision or judgment can be per incuriam if it conflicts with the ratio of a previously pronounced judgment of a co-equal or a larger Bench.

Precedential Pandora's Box:

96. Now, we must address the avalanche of authorities the parties on either side have relied on. As to the collection of ratio or holding, a single precedent may cause no concern; but a congeries of case law on the same issue always does. For judicial decisions are accumulated articulations. Each builds on another. We expect the later one to coalesce with the previous one, but most often ever so subtly it shifts its stand--imperceptible in a single instance yet almost divergent in a continuum. Precedents thus are "clear at the core but blurred at the edges."

Bombay High Court
Mrs. Gaur Pratibha (Ms. Thakur ... vs The State Of Maharashtra Through ... on 9 April, 2019

Bench: B.R. Gavai
Citation: 2019 SCCONLINE Bom 597
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