CIRCUMSTANCES DESTROYING OR WEAKENING THE BINDING FORCE OF PRECEDENTS.
1. Abrogated Decisions: A decision ceases to be binding if a statute or statutory rule is inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court.
2. Ignorance of Statute: A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of statute i.e. delegated legislation. Such decisions are per incuriam and not binding.
The mere fact that the earlier court misconstrued a statute or ignored a rule of construction is no ground for impugning the authority of precedent. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court.
Such decisions are also per incuriam. A court is not bound by its own decision that is in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on later courts.
In this circumstance the rule is that where there are previous inconsistent decisions of its own, the court is free to follow either i.e. earlier or later.
To come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.
3. Sub Silentio: Precedents sub silentio or not argued: A decision passes sub silentio when the particular point of law involved in decision is not perceived by the court or present to its mind.
When a decision is on point A upon which judgement is pronounced but there was another point B on which also court ought to have pronounced before deciding he issue in favour of the party, but that was not argued or considered by the Court.
In such circumstances although point B was logically involved in the facts and although the case had a specific outcome , the point B is said to pass sub silentio. [Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A)]. It is rightly said that an hundred precedent sub silentio are not material.
4. Where a judgement is given without the losing parties having been represented , there is no assurance that all the relevant consideration have been brought to the notice of the court and consequently the decision ought not be regarded as absolute authority even if it does not fall within sub silentio rule.
A precedent is not destroyed merely because it was badly argued, inadequately considered and fallaciously reasoned. Total absence of argument vitiates the precedent. A decision is an authority only for what it actually decides and not for what may logically or remotely follows from it.
Decision on a question which has not been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990 SC 781: 1990(2) SCC 71: 1989 Supp. (1) SCR 510: 1989(2) Scale 982.
When observation of the court on a question about validity of a statutory provision which was neither raised nor argued would not be a binding precedent. Rajpur Ruda Meha and others v. State of Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677.
5. Distinguishing: A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principles involved is the same and the facts are similar.
Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them.
If a Court deems fit to follow a precedent of a superior court the proper course , in such a case, is to try to find out and follow the opinions expressed by larger benches of Superior Court in the manner in which it had done this.
The proper course for a Court , is to try to find out and follow the opinions expressed by larger benches of superior Court in preference to those expressed by smaller benches of the Court.
If, however, the Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should say so giving reasons supporting its point of view.
Union of India and another v. K.S. Subramanian, AIR 1976 SC 2433;1976(3) SCC 677.
Even Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds itself unable to accept the earlier view, it shall be justified in deciding the matter in a different way.
Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC 623.
6. Overruling: A higher court can overrule a decision made in an earlier case by a lower court eg. The Court of Appeal can overrule an earlier High Court decision.
Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable.
The overruling is retrospectively except as regards matters that are res judicata or accounts that have been settled in the meantime.
The Apex Court or any superior court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience.
The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles.
On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time.
It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience.
Manganlal Chhagganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, AIR 1974 SC 2009; 1974(2) SCC 402.
The decision of Full Bench of High Court passed after considering the local conditions and history should not be easily disturbed. Nityananda Kar and another, etc. etc. v. State of Orissa and others, AIR 1991 SC 1134; 1991 Supp (2) SCC 516.
7. Reversing: Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision.
8. Concession: Concession made by counsel on a question of law is not binding as precedent. The Government of Tamil Nadu and others v. Badrinath and others, AIR 1987 SC 2381: 1987(4) SCC 654; State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC 357.
9. Consent: When a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38: 1989(1) SCC 101; 1989 Supp. (2) SCR 929.
10. Non Speaking Order: Non speaking order dismissing special leave petition would not constitute binding precedent as to the ratio of the High Court involved in the decision against which special leave petition to appeal was filed. Ajit Kumar Rath v/s State of Orissa (1999) 9 SCC 596.
11. Specific Exclusion: A judgment stating therein itself that the ratio laid down there in shall not be binding precedent or shall not be followed or relied upon , cannot be treated as binding precedent. Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437.
12. On Facts: If a judgment is rendered merely having regard to the fact situations obtaining therein , the same could not be declaration of law within meaning of Article 141.UP State Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586 ;(2006)1 SCC 479;.
There is nothing in the Constitution which prevent the Supreme Court from the reversing its previous decision.
State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997: 1967(2) SCR 170.
An earlier decision cannot be departed unless there are extra-ordinary or special reasons for doing so.
Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur, AIR 1976 SC 410;: 1996(4) SCC 124.
Non-consideration for foreign decisions. The decision of Constitution Bench which held the field a quarter of century without challenge. Reconsideration on account of non-consideration of an American decision, not cited before the bench, is not called for.
Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi, AIR 1986 SC 293: 1986(1) SCC 445:; India Electric Works Ltd. v. James Mantosh and another, AIR 1971 SC 2313; 1971(1) SCC 24.
Thus, one of the tools of an Advocate to persuade a Court on the point canvassed before it, that is to cite a binding precedent, is not always without limitations and it has to be an endevour of every advocate to perform an exercise to find out the ratio decidendi of a judgement and its relevancy to the proposition put before the court in the context of the facts of the case, before the same is quoted.
