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PRECEDENT IN THE INDIAN LEGAL SYSTEM (1990). By A.

Laxminath- Eastern Book Co., Lucknow. Pp. xvi + 214. Price


Rs. 125.
THE SUBJECT of precedents in the Indian legal system is of seminal im
portance. Despite the legal theory that judges only find the law or interpret
it, it is now well established that precedents are a source of law along with
legislation and custom,1 A fortiori^ the Constitution itself makes a dis
tinction between the supreme law, viz., the Constitution and the ordinary
law, viz., the legislation. It is for the superior courts to decide if a piece of
legislation is unconstitutional and, therefore, void by virtue of article 13
ofthe Constitution. This power of judicial review of legislation2 combined
with the power of judicial reveiew of administrative action makes the high
courts and the Supreme Court often sit in judgment over the government.
The importance of the precedents delivered by the high courts and the Sup
reme Court is, therefore, overwhelming under our constitutional and legal
system. How has the system worked, what problems have arisen in the
discharge of this judicial function and how they have been tackled are
some ofthe taunting questions dealt with by the author in this book.3
The author correctly points out that the evolution of precedents in the
Indian judicial practice started with the decisions ofthe Judicial Committee
of Privy Council. The Hindu customary law which was till then based only
on the texts ofthe dharmashastras was reshaped into a modern jurisprudence
with latitutde for rationalisation and reasoning by the judicial precedents of
the Privy Council and the high courts in India. The role ofthe Privy Coun
cil and ofthe Federal Court was, however, limited because previous to the
commencement of the Constitution of India the courts did not have the
power of judicial review of legislation. The various problems which have
arisen in applying the doctrine of precedents in India and the way in which
they have been tackled by the author would perhaps be the best way to
review the book.
With individual judges writing separate judgments in the same case the
problem of deducing the ratio decidendi ofthe decision of the court in that
particular case emerged. So much so that another decision of the Supreme
Court was needed to attempt to find out the ratio decidendi ofthe previous
decisions of the same court. The question as to what was decided by
the Supreme Court in the famous case of In Re Delhi Laws Act**
had to be found out by the analysis of the different judgments in that
case and finding out the agreed points of decision made {>y Justice Bose

1. Salmond on Jurisprudence, chapters VI-K (9th ed,).


2. See, V.S. Deshpande, Judicial Review of Legislation (1975).
3. A Laxminath, Precedent in the Indian Legal System (1990).
Sa. AXR. 1951 S.C. 332.

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466 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 33 : 3

in Raj Narain v. Patna Administration Committee.* It is perhaps to some


extent inevitable that judges of the same Bench may differ in their reasons
for arriving at the decision.
But then the question immediately arises as to whether all the reasons
given by the different judges leading to the same decision are a part of the
ratio of that decision. In Krishna Kumar v. Union of India,6 a Constitution
Bench ofthe Supreme Court speaking through K.N. Saikia Justice held that
it is the ratio decidendi alone which has the force of law and that the court
is not bound by all the reasons given in support ofthe decision.6 The rule
of ratio decidendi was pithily expressed by Frederick Pollock as follows:
"Judicial authority belongs not to the exact words used in this or that
judgment, nor even to all the reasons given, but only to the principles accep-
ted and applied as necessary grounds of the decision."7
In Halsbury's Laws of England* also this rule is stated as follows :

The concrete decision alone is binding between the parties to it


but it is the abstract ratio decidendi, as ascertained on a considera-
tion ofthe judgment in relation to the subject matter ofthe decision
which alone has the force of law.9

Hence the distinction between what is the ratio decidendi of the case
and what are merely obiter dicta has to be constantly borne in mind in apply-
ing multilateral precedents to the decision of a case. When this is borne
in mind, it will also follow that a judgment as a precedent cannot create
law except by deciding the concrete question in the particular case. For
instance, in M.C. Mehta v. Union of India10 a 3-judge bench ofthe Supreme
Court was dealing with a writ petition under article 32 of the Constitution.
The petitioner complained against the pollution of environment by the
chemicals factory of the Shriram Foods and Fertilizers Industries in Delhi.
The locus standi of the petitioner was justified on the ground of the issue
being one of public interest which can be raised in a public interest litiga-
tion. The court laid down conditions for being complied with by the factory
to minimise the pollution caused by its working. There the decision of
the court should have ended. Going beyond the decision ofthe particular
case the court recommended in para 21 to the Government of India to adopt
a well-considered policy for prevention of pollution of environment.
This is a welcome suggestion.

4. ALR, 1954 S.C 569*


5. J.T. 1990 (3) S.C. 173.
6. Id. at 187.
7. Ibid.
8. 4th ed., volume 26, para 573.
9. Supra note 5 at 187.
10. AIR. 1987 S.C. 965.

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1991] BOOK REVIEWS 467

But in the next case, M.C. Mehta v. Union of India11 the court was
concerned with payment of compensation and whether it can be ordered
in a writ petition particularly against an enterprise which is not an
agency or instrumentality of the state. The court declined to de-
termine and grant the compensation and asked the petitioner to file actions
claiming compensation with the help of the Delhi Legal Aid & Advice
Board. The author has missed the following points about this judgment
which need to be critically examined.
For example, para 31 of the judgment deals with the measure of liability
for damage caused by such hazardous and inherently dangerous industry.
Though no compensation was being determined or granted in the case, the
court nevertheless went beyond the issues before it and stated that the liabi-
lity for such a tort in India is not limited by the decision of the House of
Lords in Rylands v. Fletcher1*. After all English decisions are only
persuasive and not authoritative in India.
But then we come to para 32 of the judgment which was not only be-
yond the confines ofthe case but also tried to anticipate the decision in a
future litigation. The court said:
[T]he measure of compensation in the kind of cases referred to in
the preceding paragraph must be correlated to the magnitude and
capacity of the enterprise because such compensation must have a
deterrent effect. The larger and more prosperous the enterprise,
greater must be the amount of compensation payable by it for the
harm caused on account of an accident in the carrying on of the
hazardous or inherently dangerous activity by the enterprise.13
Firstly, the payment of compensation for a tort is to place the person
harmed by the tort in the same position he would have been but for the
tort. No compensation beyond that measure can be granted. But the
observations in para 32 suggest that the amount ofthe compensation would
increase not because of the increase in the harm caused but because the
tort feasor happens to be a large and a prosperous enterprise. It has never
been the law that the amount of compensation can increase by the accident
of the defendant being rich. Nor has the court the power to create such
a law by obiter dicta when the court is not deciding the question of the
quantum of compensation, much less the question whether the quantum
should increase due to the accident ofthe defendant being rich. This obser-
vation rang alarm bells in U.S.A. Not only the Union Carbide Corpora-
tion of the U.S.A. was in the dock feeing claims of compensation for
the extensive harm done by the leakage ofthe poisonous gas from its factory
in Bhopal but other prospective investors were concerned to know whether

11. A.LR. 1987 S.C. 1086.


12. (1868) L R 3 H L 330.
13. Supra note 11 at 1099-1100.

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468 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 33: 3

the mere accident of their being rich would make them liable to pay com
pensation larger than is admissible under the law of torts.
Secondly, the observation was criticised as foreclosing a future decision
on the amount of compensation which would be payable by the Union Car
bide Corporation. Such a use of obiter dicta cannot pass muster. It is
bound to give rise to criticism and affect the credibility of a judicial prece
dent.
The full court decision in Kesavananda Bharati v. State of Kerala^ is
unique not only in India but in the world. Before this decision, the dis
tinction was between the constituent power of the Constituent Assembly
making the Constitution for the first time and the legislative power exer
cised by the Parliament under the Constitution after the Constitution has
been made. The provision for the amendment of the Constitution in arti
cle 368 was regarded as being in the nature ofthe exercise of a constituent
power in as much as the amendment made there under would become a part
of the Constitution. However, this amendment is made not by the Cons
tituent Assembly but by Parliament under a power which also is given by
the Constitution in the same way as the power to make ordinary legislation.
Since it is the function of the Supreme Court and the high courts in India
to construe the Constitution, logically it followed that the exercise of the
amending power was also to be construed by the courts. The word
"amend" was construed in this decision and it was held that the power
to amend could not be so exercised as to change the identity ofthe Consti
tution or the basic structure ofthe Constitution. The effect of this decision
was virtually to leave no power to be exercised by the Parliament which
would be beyond the judicial review by the courts.
To restore the constituent nature of the amending power the Forty-
second amendment of the Constitution was made in 1976 adding clauses
(4) and (5) to article 368 declaring that an amendment ofthe Constitution
shall not be called in question in any court and that there shall be no limi
tation on the constituent power of the Parliament to amend the Constitu
tion. But clauses (4) and (5) in their turn were invalidated by the Consti
tution Bench of the Supreme Court in Minerva Mills v. Union of India^
on the ground that these provisions sought to exclude judicial review which
was one of the basic features of the Constitution as held in Kesavananda.
Thus the conflict between judicial review by the Supreme Court and the
exercise of the so-called constituent power of amendment under article 368
by a special majority in Parliament continues. This unique feature of the
role of precedent in the Indian legal system needs to be discussed further
than what has been done by the author.
The author has discussed the power ofthe Supreme Court and the high
court* to-overrule their own precedents by acting through larger benches.
14. A.I.R. 1973 S.C. 1461.
15. A.I.R. 1980 S.C. 1789.

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1991] BOOK REVIEWS 469
He has pointed out that this is an inevitable result ofthe system of judicial
precedents to be worked in a changing society. Afterall the courts work
within a socio-economic system to render justice. The precise contours
of justice are bound to differ according to the socio-economic changes.
Therefore, precedents which are no longer harmonious with such changes
are bound to be overruled. The author has rightly pointed out that over
ruling of precedents is in tune with what has been done by the House of
Lords in England. It is also found in the U.S. Supreme Court decisions.
To overrule a decision, it is always necessary to point out that it was
wrong. The doctrine of calling such a decision per incuriam is only a hyper
bole. It amounts to saying that the decision was obviously wrong because
it failed to take note of a statutory provision or a previous decision ofthe
court. The learned author has not been able to show how per incuriam is
basically different from a wrong decision which is overruled.
The learned author has also dealt with the doctrine of prospective over
ruling. In view of article 141 giving the Supreme Court the power to de
clare law, such exercise of this power with the effect restricted to the future
and without overruling the past decisions is warranted and is not liable to
any reasonable criticism.
The first warning against being influenced by English law in the interpre
tation of Indian statutes was sounded by the learned judge, B.K. Mukherjea
J. of the Supreme Court in Satyabrata Ghose v. Mugneeram Bangur1*, a
decision not noticed by the learned author. The learned judge rightly
pointed out that in India the judges cannot decide cases on time to apply
the amorphous doctrine of frustration and that the correct course is
to apply the language of section 56 ofthe Contract Act. Undoubtedly,
the courts in India are bound to be influenced by reasonings of other judges
deciding cases under the common law system, English decisions and
even some ofthe Australian and Canadian decisions are bound to be useful
in considering similar problems in India. Such help is welcome. The
persuasive values of these foreign decisions are rightly emphasised in Forasol
v. Oil and Natural Gas Commission.17
A reading ofthe whole book by the learned author is enlightening. He
has taken us through the various important decisions ofthe Supreme Court
in the perspective of the system of precedents. In the process of this
review one does get a proper assessment of the particular cases and an all-
sided examination of their importance and effect. It is a pleasure to have
such a book at hand so that the relative importance of each such decision
is properly understood in the context of other decisions constituting the
system of precedents. All important aspects of the system of precedents
working in India have been painstakingly considered. The whole material
has been presented by the author and one only wishes that he should have
been-critical enough to criticise some df the decisions ofthe Supreme Court
where such criticism would be justified.
V.S. Deshpande*
16. A.I.R. 1954 S,C. 44.
17. AIR. 1984 S.C. 241 at 251. www.ili.ac.in The Indian Law Institute
Former Chief Justice, High Court of Delhi.