1 Inchoate Law of Authoritative Precedents thrust on Inferior Courts in India

Before diving deep into the main theme of this article I feel I owe an explanation to the reading public why I used inferior courts to describe courts below the High Court instead of being more nice aptly calling them as subordinate courts as did the constitution of India in chapter VI. There is absolutely no weighty reason for such an eccentric pick of words except that it is the phrase often used in India by the superior courts while referring to Subordinate judiciary comprising the threetier system of Junior Civil Judges, Senior Civil Judges, and District Judges the last of the triad having been trifurcated all over again ironically engendering three classes of District Judges much against the intendment of Art.233 of the Constitution of India which did not authorize creation of any class within class. Be that as it may, there is an urgent need to review the status of the law of authoritative precedents particularly applicable to subordinate judiciary and if possible forge a monolithic pattern of the law of precedents that would be in a position to guide with certainty judiciary at the grassroots level. However for the present this article is mainly intended to focus on the binding nature of High Court decisions on lower courts. As a prelude, it is worth making a short-shrift of the fundamental nature of Indian Judiciary. Indian judiciary is uniquely unitary in nature; legislature and executive are not. In India every tier of judiciary right from the court of Junior civil Judge, for that matter, from the court of a second class Magistrate right up to the Supreme court at the apex ,every court is competent to administer both federal laws passed by the parliament as also provincial laws passed by the state legislatures with equal facility. Furthermore, no court of law can be manned by any other person than the one in judicial service which again is free from the vice of duality or dualism in as much as it is only one, the State government in the case of a state and the union government in the case of a union territory, that can constitute such Service. On the other hand, barring few overlapping situations, the separation of legislative powers as between Indian Parliament and State legislatures are well demarcated by the Constitution itself. Likewise the executive powers of the union government on one hand and the state governments on the other are sharply divided although it is altogether a different matter that, undoubtedly, the union government and the parliament enjoy a certain degree of superiority vis--vis state governments and state legislatures respectively thanks to such a disparity ingrained in the constitution itself.

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The judiciary, whether it is superior or inferior can function effectively and impeccably if only its tools are sharp and incisive. One such important tool in the hands of a Judge is precedent-binding precedent. Among the inputs of forensic engineering it is next only to the statute law otherwise called codified law. In the dispensation of justice, law is the most vital ingredient. Every other aspect in the adjudication has to be necessarily bathed in law. However the authoritative precedent earned one-up man ship over formal law in the sense that an authoritative precedent is apt to encompass not only statutory law but also something more by way of elucidation. This something more very often tilts the balance when both the warring parties in a litigation ultimately rely upon the same set of laws however viewed from each ones perspective. In some cases, as the controversy gets narrower and narrower in terms of fact the adjudication enters the realm of interpretation of law necessitating the application of case law. It is at this point that the something more that may be discernable from the precedents that turns out to be decisive of the contentious issues before the court. Such value addition by the superior court that demands and commands obedience to its judgment as a binding precedent especially from the lower courts is precisely the subject matter of scrutiny in this essay. In order to accord the status of a binding precedent to a judgment it should be found congruent with the following principles. 1. The judgment sought to be cited as a binding precedent should spin out ratio decidendi in its true sense scrupulously germane to the conspectus of facts of the case that is being grappled with by the lower court. 2. Such judgment should be identified as being more efficient than the other players in that range in terms of jurisdictional primacy (the court rendering the case law having the power of superintendence over the court hearing the case in question) or hierarchical superiority, judge strength and of course true ratio decidendi as distinguished from obiter dicta. 3. It should be a decision free from the vices of per incuriam and the passing SUBSILENTIO. 4. Lastly it should be one anointed with authenticity by virtue of compliance with the requirements contemplated by Sec 3 of Indian Law Reports Act 1875 applicable only to High court judgments but not to the judgments of Supreme Court governed by Art. 141 of the constitution of India. Principles itemized 1 to 3 are too obvious to brook any further articulation. It is however pertinent to point out in a nutshell that judicial discipline requires that decisions should be rendered without obfuscating the ratio, without straying into academic questions, without deviating from the factual matrix ,without falling into such ridiculous errors illustrated by judgments rendered per incuriam, subsilentio

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in total ignorance of a provision of law or a precedent binding on the author himself or herself till such time proper steps are advisedly taken to validly avoid it. Unfortunately, though historically the grounds of per incuriam and passing subsilentio were originally the weapons in the hands of lower court to jettison absurd and eccentric case law, judicial egotism over a period successfully gagged the healthy initiative of the lower courts to closely scrutinize and reject such judgments for reasons recorded. Umpteen books and studies have been published on the substratum of the points 1 to 3. This article therefore seeks to focus on the principle no.4 supra a close analysis of which if properly done would and should lead us to the inescapable conclusion that none of the judgments of any high court in India except those that are published by the state government concerned in due compliance with the mandate contained in the Indian Law Reports Act (herein after called ILR ACT) is qualified to be received and accepted as an authoritative precedent in any court of law. The above intendment is explicit in the very language of Sec3 of ILRAct which reads as follows:

3.Authority given only to authorized reports.No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case [decided by any High Court for a '[State]], other than a report published under the authority of [any State Government].
In the face of the mandatory provisions contained in Sec 3 of the ILR Act as shown above, none of the reporting in private law journals of the decisions of the High Courts lends them any authenticity good enough for reception of those judgments by way of citation in any court-any court- the emphasis is on any court which may include even the Supreme Court where, occasionally, very rarely though, some High court judgments may be cited for persuasive effect. These difficulties presented by Sec 3 of the ILR Act are sought to be surmounted by resorting to weird arguments which are hardly in

4 harmony with the settled principles of judicial interpretation and approach. The first and foremost contrivance opted for in this regard is a deliberate attempt to read down Sec 3 the only substantive section of ILR Act in order to divest it of its mandatory force. But one cannot forget that Sec 3 opens with a non-obstante clause which is a sure sign of an authoritative command that brooks no relaxation. It is therefore incomprehensible as to how such a provision could be relegated to the position of merely a directory or recommendatory provision. It is an absolutely reckless assertion. It is thus clear that ILR ACT is Sec 3; Sec 3 is ILR ACT. In other words there can be no ILR Act making any sense without Sec 3. Nobody can say that a whole Act of parliament could be merely recommendatory or directory as distinguished from mandatory as holding Sec 3 as such amounts to that. If anybody wants to water down its rigor, as is presently shown he can do so only by striking down Sec 3 outright but which shocks the notions of judicial propriety for the simple reason that the concept of a legal provisions being recommendatory and the concept of a legal provision being ultravires the constitution are not equal in terms of purport and ramifications. It is rather shocking that not even a single judgment of the Supreme Court could be found on the Supreme Court website that made even a passing reference to ILR Act let alone dealing with its scope and ambit even while laying down under Art.141 of the constitution of India a mass of case law on precedents rendered by the High Courts. One need not be overawed by the case law on this subject turned out by the Supreme Court in total disregard of the scope and ambit of Sec 3 of the ILR Act 1875 as obviously such judgments of the Supreme Court too, strictly speaking, come under the pale of per incuriam. There is no evidence on record to show that even the few judgments rendered by some High Courts seeking to water down the rigor of Sec 3 of ILR Act were ever published in any authentic Indian Law Reports of the respective state governments. So long as Sec 3

5 of ILR Act remains alive on the statute book any judgment that attempts to enervate the said section cannot but fail for the simple reason that in order to get authenticity such a judgment too is at the mercy of that very section and the machinery thereunder. It is quite possible that human ingenuity always tries to outsmart legal impediments and one such way in the context of the issue for discussion is to suggest that an authoritative precedent can be introduced through a certified copy of a judgment laying down the law favorable to the party relying upon it. This view suffers from two vices. A judgment of the High court cannot be a precedent qualified to be received by the lower court unless it passes through the process of publication by ILR. The only other seemingly wonderful way of taking it to the attention of the court where it is intended to be cited is by filing its certified copy that too as an exhibit. But then such a certified copy of judgment cannot be used for any purpose other than what is contemplated by Secs 40 to 44 of the Indian Evidence Act. In other words the certified copy of a judgment of a High Court does not serve as a proper citation. In spite of so much of importance attached to Indian Law Reports Act in the matter of authenticating citable case law, nobody is bothered to keep- going the ILRs which deserve a treatment similar to the one given to Official Gazettes. It is thus amply clear that except the case law generated by the Supreme Court, the rest of it (not reported by ILRs) from other sources is imperfect.

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