August 9, 2022


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‘No Precedential Value’: Courts Propagating Uncertainty in the Lawful Program – JURIST – Commentary

Samarth Sansar and Shreya, both of those regulation learners at Nationwide College of Juridical Sciences, Kolkata, India, examine how judgments and orders passed by courts with the caveat of not managing them as a precedent are antithetical to the doctrine of stare decisis…

The discussion bordering the interpretation of the Unlawful Functions Prevention Act (UAPA) attained sizeable drive when the make any difference relating to the grant of bail to a few activists by the Delhi Higher Court docket arrived at the apex court docket in charm. However the courtroom did not interfere in the bail get, the bench expressed anguish more than the adjudication of the scope of the Act, even even though it was not challenged. In a instead alarming observation, the bench, with no remaining the higher court’s purchase, mentioned that the impugned judgment shall not be addressed as a precedent and may perhaps not be relied upon by any of the parties.

For a extensive time, there has been a disturbing follow wherever the courts pass judgments and orders with the caveat of not treating them as a precedent. It is our situation that this sort of observations can only be produced when the impugned judgment is found to be inappropriate after thanks scrutiny. Regrettably, latest practice displays that this kind of observations are built out of exorbitant warning with out realising its effect. In this article, we explore how these judgments and orders are antithetical to the plan of the principle of stare decisis and undermine the relevance of binding precedents. We argue that whilst the function of judicial pronouncements is to make sure certainty, the follow of ‘caveated’ orders serves the correct opposite. Moreover, the follow of providing caveats displays a absence of self-assurance and conviction in the judicial orders.

Doctrine of Stare Decisis: An Edifice of Judicial Proprietary

A legal process is a residing entity. It evolves, it grows and it sorts an intrinsic section of the life of people today for whom it functions. The two important sources of regulation in the typical law is ‘legislation’ and ‘judicial decisions.’ When a case is made the decision by the courtroom it is not only the legislation for the events involved but results in being a aspect of the law. This basic principle is referred to as the doctrine of stare decisis, which obligates the courts to refer to the earlier judgments determined by the Supreme Court docket and Superior Courts owning supervisory jurisdiction over them, or by a bench of bigger or of equal toughness. The doctrine of stare decisis sorts an intrinsic feature of our authorized system which is centered on a hierarchy of courts. This doctrine aims to market regularity in a judicial choice, affirms judicial proprietary and instils faith in the citizenry about the administration of justice which our judiciary strives to advertise.

The doctrine of stare decisis progressed in England in the absence of codified legislation and was later on adopted in Indian regulation. Under Section 212 of the Federal government of India Act, it was delivered that legislation declared by the federal courtroom and judgment delivered by the Privy Council shall be regarded as binding and should be followed by all courts in India. With the Indian Structure coming into pressure, the doctrine is recognised to emanate from Posting 141 of the Constitution.

In one particular of the initial instances of a equivalent character, in 1968, the Supreme Court had the chance to deliberate on the importance of precedents in our judicial procedure. The courtroom was dealing with a subject exactly where a judge had declined to be sure by the prior judgment of a comparable or much larger bench of the very same Substantial Court. The Supreme Court docket unequivocally held that this sort of an observation disrupts the recognized notions of the rule of regulation wherever precedents type the foundation of the administration of justice. Even further, in the situation of Jaisri v. Rajdevan, it was noticed that if the law of precedents is disregarded, “law would be left devoid of all its utility and be thrown into a condition of uncertainty.” Moreover, the Supreme Court docket in the Raghubir Singh situation held that the final decision of the courts have importance not just for the reason that it is the adjudication of the rights of events involved but also simply because these types of adjudication embodies the declaration of legislation as a binding principle for upcoming conditions. The latter factor is pivotal to the development of the jurisprudence of law. This doctrine of binding precedent gives assurance to the people with regards to the import of the transactions forming portion of their day-to-day life.

The finality of the judgement entailing stare decisis so sorts an indispensable portion of justice administration and departing from this settled posture devoid of persuasive motives is regarded as tantamount to abuse of system of the court.

Getting Absent Precedential Benefit: Devoid of Lawful Basis & Moral Conviction

Report 141 of the Structure of India presents that the law declared by the Supreme Court docket shall be binding on all the courts in the territory of India. This Post guarantees that the regulation laid down by the courtroom is very clear and consistent to advertise certainty and general public religion in our judiciary. However, neither the Constitution nor the Supreme Court docket Guidelines offer any exception wherever the courts can declare any ruling to have no precedential worth. Hon’ble Justice DY Chandrachud, though hearing a similar make any difference, recently noted that “the Supreme Court is remaining not simply because it is right, but it is suitable due to the fact it is closing.” It is crucial that this sort of observations can only be made in extraordinary conditions when the events have consented to the outcome (in civil matters) or underneath Post 142 of the Structure when it is important to do so in purchase to guarantee finish justice. Curiously, in 1989, the Bombay Significant Court docket did not take into account the observation made by the Supreme Court docket about the precedential value of ruling and relied on its judgment as the information of the instances ended up equivalent.

In a the latest issue of Ramesh Rathod v. Vishanbhai Hirabhai, a division bench of the apex courtroom arrived down intensely on the apply of providing caveats towards dealing with judicial orders as precedents. The bench noted that “the observation that buy shall not be regarded as as a precedent for any other person who is accused in the FIR on the grounds of parity does not represent judicially acceptable reasoning.” It was emphasised that whether or not an order is a precedent or not is a make a difference of future adjudication, and the observation of the decide ‘caveating’ the buy was inappropriate and faulty. Justice Chandrachud, who was heading the division bench, said that orders stating it not to be taken care of precedent suggests a lack of self-assurance and moral conviction in one’s viewpoint. In such a circumstance, individuals orders must not be handed at all.

It is essential to realize that any judgment or order will have no precedential worth only when it is held to be either for each incuriam, sub silentio passed with out any jurisdiction, or in violation of ideas of natural justice, amid others. There is no lawful or moral basis to take absent the precedential price of a judgment unless of course it is created below fantastic situation. When concerns of comparable character crop up, the courts will have to, as a issue of judicial propriety, depend on the settled legislation to endorse certainty which is the hallmark of our legal program.


The investigation offered earlier mentioned would make it amply apparent that the apply of taking absent the precedential price of orders amongst the courts is inherently problematic not only from a moral position of watch but also from a lawful standpoint. The Supreme Courtroom has itself time and once more reiterated the significance of public faith and self esteem and mentioned that erosion of reliability in the general public head is the best threat to the independence of the judiciary. Regretably, the courts have on their own included to the attrition to some extent by taking away the certainty from their rulings and giving the impression of lack of conviction in their own orders.

Not only does this kind of practice vitiates the doctrine of stare decisis but also produces a peculiar situation in which the lessen courts have refused to abide by the rulings of the greater courts, the Bombay Large Court ruling in the Navinchandra situation staying 1 such occasion. Thus, it is essential that not only the Supreme Courtroom but all the better courts, whose judgments have a binding impact on respective reduce courts, should really prevent this kind of caveats unless of course particular persuasive good reasons are recorded. Further, it is now the pressing necessity of the time that the observation made by the apex court docket in the Ramesh Rathod scenario be considered in letter and spirit by all the courts, together with the apex court docket by itself. Making certain certainty and regard for the rule of legislation is the obligation of the judges under their oath and they need to conform to it in the greater curiosity of the community as effectively as the institution of judiciary.


Samarth Sansar is a fourth-12 months B.A., LL.B. (Hons.) university student at National University of Juridical Sciences, Kolkata, India. He is mainly fascinated in constitutional regulation as well as difficulties of general public plan.

Shreya is a third-12 months B.A., LL.B. (Hons.) college student at Countrywide University of Juridical Sciences, Kolkata. She does not use any formal surname. She is fascinated in Constitutional and Prison Regulation, as perfectly as issues involving the judiciary and its performing.


Advised quotation: Samarth Sansar and Shreya, ‘No Precedential Value’: Courts Propagating Uncertainty in the Lawful Technique, JURIST – Scholar Commentary, July 20, 2021,

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