With or Without Robes

(By Mathew Philip, Advocate, Kottayam)

The Law Lords or the Privy Council never appeared in robes. Justices of the Supreme Court of U.K. followed their tradition.

The gown has a surprising origin. It is associated with the funeral of King Charles II of England, one of the most popular and beloved Kings. Rightly, he was known as Merry Monarch, for his liveliness and hedonism. John Wilmot, a contemporary English poet and friend, portrayed him:

We have a pretty witty King

Whose words no man relies on

He never said a foolish thing

And never did a wise one.

When King Charles II died in 1685, the gentry began wearing black gown as a symbol of mourning. The formulation of a uniform for lawyers was in contemplation, that time. The black colour was preferred because it signifies authority and power. The black robes of the priests show their submission to God. Just like that, the black gown of the lawyer show his submission to justice. Also the black colour signifies that the law is blind; to the powerful and powerless, to men and women and to the rich and poor.

Wigs also appeared in 17th century during the reign of King Charles II. They were fashionable in English upper class. Now after centuries, the charm might be lost, but wig continues to be part of English lawyers. Moreover wigs and gown provide a degree of anonymity to the lawyers and judges.

The two pieces of white cloth in the neck band represents the two tablets believed to be handed over to Moses at Mount Sinai. The tablets contain laws between man and God and man and man. Bands give the message that the lawyer honours the law of God (natural law) and the law of man.

While the black colour represents nobility and authority, the white signifies light and goodness and the common man.

Black coat and trousers were in vogue for the lawyer community even before the arrival of gown and bands.

Black and white uniform for lawyers is accepted worldwide. It is followed with slight variations in shape, in Scotland, Australia, Germany, Canada, New Zealand, Hong Kong, Pakistan, Sri Lanka, Malaysia and Cypress.

In India the dress code is formulated under the Bar Council of India Rules. However there are certain exemptions. A black tie can be used instead of bands in Courts other than Supreme Court/High Courts/District Courts and City Civil Courts. Advocate’s gown is optional in courts other than Supreme Court and High Courts. The black coat is not mandatory, during summer, in courts other than Supreme Court/High Courts.

There were interesting litigations concerning robe. Prayag Das, an advocate practicing at Mofussil courts in Bulandshahr, approached Allahabad High Court (AIR 1974 All.133) with a prayer to allow him to appear, wearing Dhoti, Kurta and gown as his dress. The Hon’ble Court reminded the importance of Chapter II Part VI of the Bar Council of India Rules which reads:

“An Advocate shall, at all times, comport himself in manner befitting his status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non professional capacity may still be improper for an Advocate.”

The Hon’ble Court observed that appearing without the prescribed dress is to show disrespect to the Court and the court is certainly entitled to refuse audience. It is held that the “petitioner who was wearing a Dhoti and Kurta with a gown violated the prescribed “dress and the learned Civil Judge was within his rights to refuse audience to him and the impugned orders are valid and legal.....Justice can best be administered when legal proceedings are conducted with decorum and a certain degree of formality. “The place of justice” as Francis Bacon remarked “is a hallowed place” and those seeking its aid either for themselves or those whom they represent should so conduct themselves as to uphold its dignity. The trappings of a court room and the costume specially meant for the Court and its officers, invest the Court with a sort of dignity which is not without its effect. The traditional prescribed dress of an Advocate gives him certain aloofness wherefrom his submissions come with added force. As A.G.Gardener has so eloquently expressed, “Dress has its spiritual and moral reactions. It may seem absurd, but it is true that we are in a real sense, the creatures of our clothes”.

To emphasize the need of proper dress the Hon’ble Court quoted the story of an Australian squatter:

“The apprehension might be well illustrated by a dialogue which is alleged to have transpired between the Australian squatter and his friend who visited him on his estate far away in the wilds of the interior. The friend asked him why, in so remote a place he make it a practice to “dress” for dinner. “I do it “ said the squatter, to avoid losing my self respect. If I did not dress for dinner I should end by coming into dinner in my shirt- sleeves. I should end by not troubling to wash. l should sink down to the level of the cattle. I dress for dinner, not to make myself pretty, but as a spiritual renovation”.

Another interesting case arose in our High Court. The petitioner advocate appeared before the Joint Commissioner of Excise, Trivandrum. The authority denied audience as he was not in his robes. The Hon’ble Court held that wearing gown before an authority is optional. He could also wear a black tie instead of bands, according to Bar Council of India rules.

The fight against preferential rights to Senior Advocates came into surface. Petitioner is aggrieved by the modified dress adopted by Senior  Advocates. Only one dress code is available to the community of lawyers according to Bar Council of India rules. The statue of justice is a blind woman with a scale and hence no preferential treatment be given to Seniors. It offends Constitutional guarantee of equality under Article 14. The Senior Lawyers are trying to create a class within a class.

The Hon’ble Court held that Senior Lawyers are a creation of statute vide Section 16 of the Advocates Act. They wearing the dress of Queens Counsel is a long standing practice. Hence there is no violation of Article 14 and the classification is according to law.

Recently the dress code was again agitated before our High Court. According to the petitioner dress code is a Colonial hangover and it is against the climatic conditions of Kerala. The Hon’ble Court adopted the reasoning of Allahabad High Court supra. It also quoted Satish Kumar Sharma v. Bar Council of H.P.(2001 (1) KLT Online 1005 (SC) = (2001) 2 SCC 365):

“The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity.”

The Hon’ble Court held that “providing a dress code for those practising in various courts can only be termed as a reasonable restriction and cannot be termed as either arbitrary or unreasonable.... Apart from identity the dress worn by the Advocate clearly induces the seriousness of purpose and a sense of decorum which are highly necessary and conducive for the dispensation of justice.”

The present dress code is a time tested attire and the colours black and white is adopted by almost all the countries of the world. The dress provide us a special identity and dignity. It amalgamates us to the rest of the community of lawyers, worldwide.

Some Thoughts on Appeals vis-à-vis High Court Act & Rules

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

I was leisurely examining the intricacies of Court Fees and Suits Valuation Act, 1959 (Kerala) once again, thanks to the astuteness of the registry. It turned out to be a fruitful exercise. The thought came to me: Are not some of the provisions of High Court Act and Rules obsolete?

Section 5: Appeal from judgment or order of Single Judge:

An appeal shall lie to a Bench of two Judges from

(i)    a judgment or order of a Single Judge in the exercise of original jurisdiction or

(ii)   a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court

(iii)   -------------

Rule 43: Appeals under Section 5 of the High Court Act:

(1) When an appeal against an appellate decree or order has been disposed of by Single
Judge an application for a declaration that the case is a fit one for further appeal under Section 5 of the Kerala High Court Act, 1959, may be made orally immediately after the judgment is delivered.

(2) If no oral application is made as aforesaid a written application may be made within 15 days from the date of the judgment. Such application shall be accompanied by a copy of the judgment.

(3) The application shall be posted before the Judge who passed the judgment and he may, after hearing the applicant or his Advocate, either allow or dismiss the application.

(4) Where the application is granted, the applicant shall present the appeal together with a copy of the order granting the application within 30 days from the date of the order.

(5) The provisions of Orders XLI and XLIA of the Code shall apply, as far as may be, to appeals presented under this rule.

(6) The provisions of Sections 5 and 12 of the Limitation Act, 1963, shall apply to applications and appeals under this rule.

Section 100A: No further appeal in certain cases:

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge (Substituted by Act 22 of 2002 w.e.f., 01.07.2002).

2006 (4) KLT 405 (F.B.) held that Section 100A of Code of Civil Procedure bars an appeal
to a Division Bench provided under S.5(ii) of the Kerala High Court Act against a judgment of single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the original jurisdiction by a subordinate court and that such appeals filed after 01.07.2002 are not maintainable.

2010 (4) KLT 473 (SC) declared the law on the following terms in another background: It may be noted that there seems to be some apparent contradiction in S.100A as amended in 2002. While in one part of S.100A it is stated “where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court”, in the following part it is stated “no further appeal shall lie from the judgment and decree of such Single Judge”. Thus while one part of S.100A refers to an order, which to our mind would include even an interlocutory order, the later part of the Section mentions judgment and decree. We are of the opinion that the apparent contradiction in S.100A as amended in 2002 was only due to bad drafting, and not much can be made out of it once we understand the purpose of S.100A.

https://legal-dictionary.thefreedictionary.com/obsoletetells us that “A writtenlawmayindeedbecomeobsoletewhentheobjectto whichitwasintendedto apply,or theoccasionforwhichit wasenacted,no longerexists.“ Itmustbe a verystrongcase,”saysChiefJusticeTilghman,“tojustifythecourtin deciding,thatan actstandingon thestatutebook,unrepealed,is obsoleteandinvalid.I willnotsaythatsuchcasemaynotexist-- wheretherehasbeena non-userfora greatnumberof years;where,froma changeof timesandmanners,an ancientsleepingstatutewoulddo greatmischief,if suddenlybroughtintoaction;wherea long,practiceinconsistentwithit hasprevailed,and,specially,wherefromotherandlatterstatutesit mightbe inferredthatin theapprehensionof thelegislature,theoldonewasnotin force.”

https://www.livemint.com/Opinion/wvCA3H1ilcwjn6ZCmGTHLP/India-needs-a-National-Repeal-Law-Day.html.makes interesting reading: It is a custom for the regional communities of our land to engage in fervent cleaning of their homes during culturally important occasions like the New Year, Eid, Diwali, Lohri or Onam. Building on this tradition, let us now pledge to clean the law books once a year as well, wherein the legislatures do the house cleaning! Since our “living” Constitution came into force on 26 November, it makes good sense to declare it the National Repeal Law Day. The observation of the day should encompass a convening of the lawmakers at the Centre, State Legislatures and municipalities to update, amend and annul obsolete laws and regulations.

Obsolete laws (living dead) create fertile legal thoughts, enhancing hunger of legal eagles. Please See 2016 (1) KLT 851 (SC)  Pankajakshi (Dead)Through L.Rs. and Ors. v. Chandrika.

Voila! Section 5(ii) High Court Act and Rule 43 dealing with appeals under Section 5 of the High Court Act obsolete. Should they be retained on the statute book?

Take a look around, there are other zombies lurking in law books - Including some in my beloved C.P.C. and its joint family assets!

Indian Judicial Strategies on Sustainable Development :
A Pragmatic Analysis

(By Mary Reshma George, B.A.LL.B (Hons.) NUALS and LLM, CUSAT)

Introduction

“Main challenges before humankind are three - to preserve peace, to eradicate poverty, and to conserve environmental sustainability. All the three are global concerns but the latter is of the most urgent and utmost importance”                         -- Rajiv Gandhi

The environment includes wholesome of our surroundings i.e., air, water, land, soil, living things, minerals, gases, forests, man-made materials, renewable and non-renewable resources, flora and fauna, wind and also everything which we see, experience and inherently available in the earth¹. Environmental destruction has been the prime reason behind disasters like Tsunami, Earthquake and Global Warming. Indian Judiciary had taken very extensive and fostered methods to protect our ecology and in most of the cases the Judiciary act as environmentalists.

In India, preservation of the environment was taken seriously only after the Bhopal Gas Tragedy². Before that, we were not aware of the intrinsic value of our environment. The genuine development of man begins with the preservation of natural resources through technological advancements by utilizing it for the betterment of the present generation as well as the future generations.

In India, most of the Environmental problems arise from poverty, under-development and over-development. Some of the important environmental problems which affect the ecological balance and conservation in our society are water pollution, lack of control on the pollution of rivers, irresponsible construction of dams and barrages, lack of access to drinking water free from toxin or other contaminants, increased use of agro-chemicals or pesticides, storage and transportation of dangerous goods in package forms, pollution due to noxious liquid substances, degradation of marine and coastal resources, heavy metal contamination by industrial effluents, dumping of land-based solid waste into the sea, heavy coastal construction, inland mining, poor land use practices, overfishing, destructive fishing techniques, shrimp cultivation,  loss of coastal habitats, deforestation, substantial lossof mangrove forests, unplanned commercial fisheries, land-based pollution, rapid industrialization, mining, logging, firewood collection, livestock grazing, land degradation, hazardous waste, wastewater disposal, water logging and salinity, rapid spread of irrigation, indiscriminate use of agro-chemicals, over-exploitation of groundwater, air pollution, rapid and unplanned urbanization, industrial pollution, increasing transport, domestic refuse, coal consumption, energy use pattern, fly-ash, solid waste, E-waste, destruction of plants and trees etc. In short, most of the environmental degradations are due to the unorganized system without balancing the development and environment.³ Environmental governance and poverty eradication are equally important for us and any slight compromise in the environment will lead to serious peril to society.

Development can be defined as a) the systematic use of scientific and technical knowledge to meet specific objectives or requirements, b) an extension of the theoretical or practical aspects of a concept, design, discovery, or invention, c) the process of economic and social transformation that is based on complex cultural and environmental factors and their interactions and d) the process of adding improvements to a parcel of lands, such as grading, subdivisions, drainage, access, roads, and utilities.

According to Prof.P.Leelakrishnan, ‘the development mindset still centers on monetary
or materialist indicators like per capita income, per capita energy consumption and industrial production.’ This may result in serious destruction of nature. Whenever we are trying to hurt nature, we are hurting ourselves. The only method we can adopt here is ‘Sustainable Development.”

Sustainable Development

G.H. Brundtland in the Brundtland Report ⁴ defined the term Sustainable development as the “...development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” He continued stating that “We have no hesitation in holding that Sustainable development as a balancing concept between ecology and development has been accepted as a part of customary International law, though its salient features have yet to be finalized by international law Jurists. “Sustainable development is the perfect form of development where no one needs to sacrifice anything, neither the environment nor the industry and workmen.

Srikumar Chattopadhyay in his Article on “Sustainable Development: Concept and Application case of Developing Countries⁵” summarized the elements of sustainable development as follows:

       1.  Survival of human beings

       2.  Survival of all other life forms

       3.  The satisfaction of basic human needs

       4.  Maintenance of bio-physical productivity

       5.  Economic efficiency, and growth

       6.  Preservation of environmental quality and ecosystem

       7.  Inter- and intra-generational equity

       8.   Social Justice

       9.   Self-reliance and people’s participation

       10. Stabilization of human population

11. Promotion of values and ethics

I like to add some more points to the elements of sustainable development i.e.

12. Productivity

13. Industrial development

14. Environmental protection in all fields of society

15. Recyclable use of resources

16. Managing the balance between the ecosystem and industries

In short, Sustainable development is not only focusing on the survival of the fittest but also pave the way to the overall development of the human needs and aspirations towards the environment and development in a better manner without hindering any of these concepts.

The concept of Sustainable development has its roots in the Stockholm declaration in 1972. In Stockholm declaration, it was stated that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation.”This concept had also been discussed under Agenda 21 of the UN conference on environment and development held in June 1992 at Rio de Janeiro, Brazil.

Adv. P.B.Sahasranaman in his book on ‘Handbook of Environmental Law’ pointed” out that “Poverty is anathema to development. The phantom of poverty looming large over vast landscapes of underdeveloped and developing countries, including India, poses a unique challenge to economic development. One mantra to escape from this quagmire seems to be a positive approach towards industrialization. Hence, the biggest challenge before the underdeveloped and developing nations today is to peddle acceleration in industrialization viewed as instrumental in industrialization, viewed as instrumental in reducing poverty and ignorance. However, industrialization, if pursued without any consideration, can lead to indiscriminate exploitation of nature. Hence the middle ground: the revolutionary concept of Sustainable Development. “

Sustainable development, as defined by the Brundtland Commission, is built upon two foundations. The former is the objective concept of ‘human needs like food, clothing, shelter, clean water & all other essentials which contribute to the quality of life and the latter is a normative concept that ‘emphasizes a balance of equity, environment & growth, by contemplating the fully apparent non-renewal capacity of our environment.^’6

Future of Environmental Law reflects the concept of sustainable development. Eminent Environmental authors⁷ pointed out that “a separate strand of policy is the emphasis on the conservation of natural resources. The current buzz-phrase is ‘sustainable development’ and steps are being taken to reduce waste by tackling the issue of waste production at the source. However, ‘sustainable development still represents a commitment to growth.....” In Essar Oil Ltd. v.Halar Utkarsh Samiti and Ors.⁸where the Supreme Court aptly observed
Stockholm Declaration as ‘Magna Carta of our environment’, also mentioned on Sustainable Development that “this, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense, all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on the environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. “

Indian Judicial strategies on Sustainable development

The concept of Sustainable development is purely a Judge made law in India. No legislation has been enacted in India for ‘Sustainable Development’. Precedents and Judicial interpretations are the only sources available in India for sustainable development. Indian Judiciary has been successful in harmoniously constructing a balance between the environment and development with pioneering strategies to preserve the environment.

Principle 10 of Rio declaration, 1992 quoted that “Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. “

Environmental jurisprudence in India started its evolution from the 1980s and it brought novel and innovative steps to protect the environment by creating public awareness and campaigns. M.K.Agrawal⁹ in his Article titled “Judicial approach to Environmental Law”, pointed out that Judicial verdict will bring in to light the shortcomings of our social system and would inspire us to think of the ways of redeeming them. Relationship of a Judge with the society in this sense is that of a doctor and a patient... Judicial pronouncements are very likely to become yardsticks of future statutory legislation on the matters relating to environmental protection, which will also help in the development of legislation for sustainable development.

The concept called sustainable development primarily revolved around three
premises i.e.

       i)   Protection of environment

       ii)  Economic Security and

       iii)Social responsibility

The total push and pressure of the cosmos of each Judgment on Sustainable Development are bound to follow these premises and the Judiciary should maintain the balance between the environment and development. When there is a conflict between this symmetry of the legal structure, the Judiciary should give priority to the protection of the environment for the greater interest of future generation. It is a herculean task for the Judiciary to satisfy these three premises equally. Supreme Court of India delivered numerous environmentally sensitive cases with an immense dedication which became the backbone of Environmental protection in India.

1) Mining Strategies of Indian Judiciary

India being a nature-centered developing country, we are bound to reconcile developmental issues, social issues, and environmental issues uniformly. Judiciaries mining strategies had been favoring the environment due to its hazardous nature. Nevertheless, the Court tried to reconcile the industrial and economic issues with other alternative remedies.

In Rural Litigation and Entitlement Kendra, Dehradun v. State ofUttar Pradesh,¹⁰the three premises of sustainable development was articulated in an excellent manner by the Hon’ble Supreme Court. Supreme Court prima facieconsidered the issue of environment and ordered to stop stone quarrying in Mussoorie permanently. Secondly, the Supreme Court considered the issue of economic security and asked the Governmental authorities to give priority to the lessees in the grant of lease of limestone or dolomite quarrying and thirdly, the Court considered the social issue of workmen and asked the authorities to provide them employment in the afforestation and soil conservation programme.¹¹

Similarly, in Kinkri Devi v.State,¹²the petitioners prayed for canceling the mining lease given to the third Respondent for the excavation of limestone. The Court directed the second Respondent, Deputy Commissioner and other officers such as forest officials, the irrigation executive engineer and public health executive engineer to pay a visit and personally verify the situation. The report corroborated with paper reports. There were indiscriminate blasting of the rocks for mining processes in an uncontrolled and unscientific manner causing danger and hazards to inhabitants and disturbance to ecology and environment. It caused damage to posing, an imminent and real threat to the soil, rivers, streams and nullahs, water resources and water supply scheme, the ecology, the environment, the flora and fauna and to the life and well being of the inhabitants of the locality. The Court directed to set up a committee comprising of secretaries from different departments to submit a comprehensive report to the Court and also to the State Government on the following topics a) make recommendations for the evolution of a long term plan/scheme for granting of mining leases in the state. b) Suggest preventive, curative and regulatory measures and machinery in order to ensure that the mining leases are operated in a scientific manner. c) Examine whether the mining leases in affected villages were granted in accordance with the relevant statutory provisions, d) whether the need to ensure a proper balance between tapping of resources for development and industrial growth has been kept in view and consequently whether the functioning of mines is in scientific lines or on an erratic pattern. e) Find out the mines pose a potential danger to the soil, agriculture, forests, water resources and water supply scheme, flora and fauna. ecology and environment. The Court quoted the observations from Rural Litigation Kendra’s case¹³in order to bring light into the unscientific exploitation in the hilly tracts and regions of the Himalayas and highlighted the evil consequences and lasting impact on natural wealth, natural resources and the local population. Court held that “to ensure the attainment of the Constitutional goal of the protection and improvement of natural wealth and environment and of the safeguarding of the forests, the lakes, the rivers and the wildlife and to protect the people inhabiting the vulnerable areas from the hazardous consequences of the arbitrary exercise of the power of granting mining lease and of indiscriminate operation of the mines on the strength of such leases without due regard to their life, liberty and property, the Court will be left with no alternative but to intervene effecting by issuing appropriate writs, orders and directions including the direction as to closure of the mines, the operation whereof is providing to be hazardous and total prohibition of the grant or renewal of mining leases till the Government evolves a long term plan based on a scientific study with a view to regulating the exploitation of the minerals in the State without detriment to the environment, ecology, natural wealth, resources and the local population.”

Renowned Environmental Lawyer M.C.Mehta in M.C.Mehta v.Union of India¹⁴challenged the pollution caused by the stone crushers, pulverizes and mine operators. The Court observed that ‘the Badkal Lake and Surajkund are monsoon fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy reason. The mining activities in the vicinity of these tourist resorts may disturb the rainwater drains which in turn may badly affect the water level as well as the water quality of these water bodies. The mining¹⁵may also cause fractures and cracks in the subsurface, rock layer causing disturbance to the aquifers, which are the source of groundwater. This may disturb the hydrology of the area. The Court directed that a) there should be no mining activity within 2 km radius the tourist resorts. b) No construction activity allowed within 5 km radius. c) All open areas will be converted into green belts and d) no renewal of leases be made within 2 km to 5 km radius without no objection certificate from the state pollution control board.

2)    Judiciary’s balancing strategies through Relocation

Judiciary generally forced the industries to relocate from their actual location i.e. ,
environmentally sensitive areas to other comfortable zones considering the risk factor involved in it. Prof P. Leelakrishnan quoted “In a fast developing country like India, where industrialization is the synonym of progress, difficulties may arise in deciding upon relocation from a populous area. The Court has responded and tried to resolve the problem. The idea of sustainability of industrial development demands that the urban areas are free from pollution and hence the industries are located away from urban living. The Supreme Court made several orders of the relocation of industries and surrender of lands for other sustainable uses. The doctrine of sustainable development has been applied in cases relating to the clean environment of the national capital.”

The Court in various cases acted as a facilitator to assist the industries for its relocation. In M.C.Mehta v.Union of India,¹⁶the main issue was whether the brick kilns should be allowed to function within the union territory of Delhi or not. Court after examining various processes of producing bricks directed that a) the brick kilns cannot be permitted to operate and function in the Union territory of Delhi. These brick kilns may relocate or shift themselves to any other industrial estate in the national capital region. These brick kilns shall close down and stop functioning with effect from 30^th June 1997. B) The planning board should assist the brick kilns in the process of relocation. The direction shall go to the Board through its Secretary. C) In order to facilitate shifting of brick kilns from Delhi, all the four states constituting the NCR shall set up unified single agency consisting of all the participating states to act as a nodal agency to sort out all the problems of such brick kilns. The four states shall set up the single window facility within one month from today and finally, the workmen employed in the brick kilns shall be entitled to the rights and benefits such as ‘shifting’ bonus and compensation, gratuity payable to a workman and full wages upon relocation.

3)  Judicial strategies in matters providing basic facilities

Indian Judiciary made effective strategies by directing the concerned authorities to facilitate the deprived class by fulfilling their basic needs through magnificent decisions. In Municipal Council Ratlam v. Vardhichand and Ors.¹⁷  the residents of a locality within the limits of Ratlam Municipality, tormented by stench and stink by open drains and public excretions by nearby slum dwellers moved the Sub-Divisional Magistrate under Section 133
of Criminal Procedure Code to require the Municipality to construct drain pipes with the flow of water to wash the filth and stop the stench towards the members of the Public. The Municipality pleaded paucity of funds as the chief cause of disability to carry out its duties. The Magistrate gave directions to the Municipality to draft a plan within six months for removing the nuisance. Hon’ble High Court approved the order of the Magistrate, to which the Municipality further appealed to the Supreme Court. The main issue for consideration was whether a Court can compel a statutory body to carry out its duties to the community by constructing sanitation facilities. The Supreme Court through Justice V.R. Krishna Iyer upheld the order of the High Court and directed the Municipality to take immediate action within its statutory powers to construct the sufficient number of public latrines, provide water supply and scavenging services, to construct drains, cesspools and to provide basic amenities to the public. The Court also accepted the use of Section 133 of Criminal Procedure Code for removal of public nuisance and affirmed that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Supreme Court encouraged public authority to make sustainable decisions.

The Supreme Court in Vellore Citizens Welfare Forum v.Union of India¹⁸ directed the closure of the tanneries and ordered that the tanneries would reopen only after the installation of pollution control devices¹⁹ Supreme Court of India recognized the principle of sustainable development as a basis for balancing ecological imperatives with development. The Court observed that the traditional concept of the opposition of ecology and development no longer existed. The Court, in this case, agreed with the importance of sustainable development and stated that “Though the leather industries are of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose a health hazard”. Court observes that Sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-system.

The facilities for drainage, roads, uninterrupted electricity supply, and potable water to the housing colony were the requisites of petitioners in Masood Ahmad v.State.²⁰Hon’ble Court held that Respondents are under Constitutional obligation to provide all the necessary facilities to the petitioners which make their existence meaningful and livable. Decency and dignity are non-negotiable facets of human rights. Court also opined that basic grievous amenity of access to potable water is not a luxury but a prerequisite for sustaining life. Any plea of financial inability or discriminatory treatment raised by any concerned authority pales into insignificance because human rights granted under Part III of the Constitution have to be respected by the State regardless of”budgetary provisions. Otherwise, a pachydermic Governmental agency may legally defy duties under the Law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. Principle of sustainable development is an integral part of Article 21 of the Constitution and the same deserves to be applied to town and urban planning throughout the country.²¹

4) Judiciary’s balancing strategies on preserving monuments

Taj Trapeziumcase²² is one of the most prominent cases on sustainable development where the most prestigious national monuments of surprising beauty, worth and glorious tribute to man’s achievements in architecture and engineering was threatened with deterioration and damage caused due to hazardous chemical industries, refinery, brick kilns, vehicular traffic and generator-sets at Mathura. The issue was that the sulphur dioxide emitted by the Mathura Refinery and the Industries when combined with oxygen with the aid of moisture in the atmosphere forms sulphuric acid called ‘acid rain’ which has a corroding effect on the gleaming white marble which became yellowed and blackened in places. Vardharajan Committee was formed along with other studies. The Court stated that “the objective behind this litigation is to stop the pollution while encouraging the development of the industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of the industry is essential for the economy of the country, but at the same time, the environment and the ecosystem have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystems. “ The Court ordered for the relocation of the industries. Court also stated that the workmen employed in these industries were entitled to their rights and benefits. The balance between ecology and development had been maintained.

5)  Judiciary’s balancing strategies in the cases of Transport facilities

M.Shafi in his Article, “Perspectives on Environment and Development”²³ stated that ‘for Sustainable Development we have to combat poverty, change the consumption pattern of developed countries, bring down the growth rate of population of developing countries, conservation and management of resources on development, combat deforestation and desertification, project the atmosphere from toxic gases, conserve biological diversity and sustainable rural and mountain development. These measures will lead to a glorious habitable earth not only for the present generation but also for prosperity.”

In Goa Foundation v.Konkan Railway Corporation,²⁴the main issue was the alignment of Konkan Railway causing ecological destructions in some parts of Goa. It caused erosion of soft rocks, disturbance to the unique mangroves, destroyed the low-lying khazan paddy fields & forests, harms the fishes, land quality and also destabilized the tribal basin. Buildings, churches and many archeological sites were also disturbed because of the alignment. Bombay High Court held that “we hope and trust that the projects undertaken for the benefit of a large number of people are not defeated or stalled by appealing to the religious sentiments of a few or by indulging in street agitations. Such attempts may temporarily help a particular group but would permanently cause damage to the interest of the common citizen.’” Court declined to interfere in the matter and mentioned that postponing the much-needed and long-awaited railway line would lead to the escalation of cost and put pressure on the public exchequer which already spent a huge amount.

In M.C.Mehta v.Union of India,²⁵ Court gave guidelines to reduce the pollution created by vehicles. In another M.C. Mehta case,²⁶ the main issue was the need for closure of the hot mix plants that supplied pre-mix material at a very high temperature for resurfacing the runway. Airport Authority pointed out the need for pollution controlled devices and resurfacing the main runways. Court held that the applicant has to be allowed to set up hot mix plants for resurfacing of the runways at IGI Airport, New Delhi though it causes air pollution because the maintenance of runways is necessary for the safety of aircraft at the time of arrival and departure. Thus Court balanced the environmental requirements with developmental needs. In M.C.Mehta v.Union of India and Ors²⁷., Supreme Court held that every vehicle sold after the cut-off date of 1^st April, 2020 was bound to cause more pollution and, therefore, manufacturers could not be permitted to sell any non-BS-VI compliant vehicle on or after 01.04.2020. Court, in this case, mentioned that “...Right to life not only meant leading a life with dignity but included within its ambit the right to lead a healthy, robust life in a clean atmosphere free from pollution. Obviously, such rights were not absolute and had to co-exist with sustainable development. Therefore, if there was a conflict between health and wealth, obviously, health would have to be given precedence.”

6)  Judiciaries balancing strategies while dealing with Wetlands, Ground water, Wild life sanctuary etc.

Wetlands are of very sensitive in nature and it also provides livelihoods for the millions of people who live in and around them. After the Ramsar Convention, conservation of wetlands got the international acknowledgment and its conversion got limited. In Consumer Action Group v.Union of India,²⁸the main issue was the transformation of a vast area of wetlands in the Adayar estuary to erect a memorial for Dr. Ambedkar. The grounds of objection for the conversion of a low-lying area inter alia includes that 1) the State Government or other authorities cannot use forest land or any portion for non-forest purpose under Section 2 of the Forest Conservation Act, 1980 2) The low-lying area is a source of groundwater recharge of the nearby residential area 3) Article 21 includes right to a safe and healthy environment and the right to have adequate water supply and 4) the memorial and other buildings are against the provisions of Development Control Rules especially to the zoning of the area. Hon’ble Court held that construction could not be done, but Court allowed conversion of a small part of the area i.e. one acre and a half for the same. Court ordered that the developers should remove the sands spread on the other parts and bound to restore the area to the original position.

The Court in People United for Better Living in Calcutta v.State of West Bengal ²⁹  held that reclaiming of nature’s gifts for the residential and commercial purpose could not be allowed. Court restricted the filling up of wetlands for the construction of an industrial complex. The Court stated that in a developing country there shall have to be developments, but that developments must be in harmony with the environment. There has to be a proper balance between the economic growth and environment so that both can exist without affecting each other. To be sustainable must possess both economic and ecological sustainability. The concept of sustainable development indicates the way in which development planning should be approached.

In Sachidanad Pandey v.State of West Bengal,³⁰Court convinced that West Bengal Government had considered all environmental issues in an objective manner to lease out a part of the zoological garden for Taj group to establish a five-star hotel. The Court upheld the principle of sustainable development and did not interfere in the policy matters. The Court in Consumer Education and Research Society v.Union of India,³¹ reduced the area of a wildlife sanctuary to one-third of its size. In F.K. Hussain v.Union of India,³² Lakshadweep administration made a scheme to augment water supply by digging wells and by drawing water from those existing wells to meet increasing needs. Petitioner argued that this will end up in the salinity of existing freshwater equilibrium and against Article 21. The Court appointed a panel to investigate the issue and they also agreed with the petitioner. Kerala High Court stated that ‘water and rivers have dominated the destiny and fortunes of man. Plentiful rivers have brought prosperity to those who lived in their banks. Thus, the greatest civilizations that mankind knew of grew up in the banks of Indus and Ganges. The administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21. Safeguards must be evolved to stop withdrawal of groundwater at a cut-off level to impose restrictions and introduce the system of effective monitoring at all levels’. In M.P.Rambabu v. Divisional Forest officer³³, three petitioners seek three different remedies i.e., for not restricting the aquaculture³⁴ operations, to stop aquaculture operations and to stop pollution because of aquaculture operations. Court held that any restriction imposed in the use of the lands would amount to the deprivation of property under Article 300 A of the Constitution and also violative of Article 21.

7) Judiciary’s balancing strategies on Forest Conservation

In India, there is massive destruction of forests due to inadequate planning and conservation strategies to preserve forests and wildlife. Forests being the oxygen hubs on earth needs inevitable care and protection for its preservation. Though the Judiciary managed to avoid encroachments, they failed to meet the entire elements of sustainable development equally. In Shyam Divan & Rosencranz book on ‘Environmental Law and Policy in India’ authors pointed out that ‘.... As we shall see, the Court assumes the role of a super-administrator, regulating the felling, use, and movement of timber across the country in the hope of preserving the nation’s forest.’

In Dahanu Taluka Environment Protection Group and Anr. v. Bombay Suburban
Electricity Supply Company Ltd. and Ors.,³⁵Petitioners  challenged  clearance  by respondents
for construction of thermal power plant which causes atmospheric pollution. Petitioners contended that fly ash and coal contaminants likely to have an adverse effect on plants and forests. The Court observed that adherence and continuous monitoring of stock emissions and ambient air quality will have no significant impact on the Environment. The Court granted the clearance of thermal power station by Central Government after fully considering all aspects relating to environmental pollution. Court also ordered for the installation of FGD plant.

The wholesale destruction of forests for mega-projects was allowed and at the same time, less harmful uses of forest products by local peoples were restricted in Banwasi Seva Ashram v. State of Uttar Pradesh³⁶. Hon’ble Court in T.N.Godavarman Thirumulpad v.Union of India³⁷permitted cutting of trees with the permission of concerned Government for economic stability in the North-Eastern region of India. However, unauthorized cuttings of trees were restricted as a measure for environmental protection. As a social measure, the removal and retrenchment of the workers were also restricted. In Gateway Hotels & Gateway Resorts Ltd. v.Nagarahole Budakattu Hakku Sthapana Samiti (Nagarahole Hotel Case),³⁸ a Division Bench of Karnataka High Court held that a failure to obtain prior approval did not render a lease of forest land void at inception. In a similar case of Divisional Forest Officer v. S.Nageswaramma,³⁹  the Court held that a lease may be granted by a State Government but no forest may be cleared until Central Government approval was obtained.

In State of Himachal Pradesh v.Ganesh Wood Products,⁴⁰ the Supreme Court held that a decision making authority must give due weightage and regard to ecological factors such as the environmental policy of Government and the sustainable use of natural resources. Governmental decisions that fail to take into account relevant considerations affecting the environment are invalid. The Court pointed out that ‘’proper assessment should be made of the forest wealth, and the entitlement of industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed’.

8)  Judiciary’s balancing strategies on Tourism

Hon’ble Supreme Court once observed that the concept of sustainable development does call upon one and all to see to the maintenance of balance between development and its sustenance of future ⁴¹. In EIH Ltd. v.State of Rajasthan,⁴²Court allowed construction of a hotel in a no-construction zone near Udaipur Lake considering the fact that the permission was granted prior to the declaration of no construction zone. The construction was on the basis of a pre-notification plan. The Court justified the construction on the ground of sustainable development. Court held that “we are to take a reasonable and balanced view of the entire situation. It is necessary to accommodate all the essential components for a healthy and developing society. We cannot retract our steps from industrialization to simplistic nature. Proper planning with a will to improving the environment is the basic need to control pollution. On the world map, Udaipur is one of the choicest tourist destinations. For the development of the tourism industry, Udaipur needs at least some hotels providing accommodation of international standard to foreign and local guests, but not at the cost of polluting the lakes. They must bear in mind that by polluting the lakes, they will not survive. Lakes are to be respected and worshipped. Even slightest disturbance polluting the lakes shall not be tolerated; however, high or mighty one may be dealt with in an exemplary manner. It must be ensured that sufficient technical and preventive measures are taken.”

In Forest Friendly Camps Pvt. Ltd. v.State of Rajasthan⁴³Court emphasized that Sustainable development has to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. Society has to prosper but not at the cost of the environment. There should be a proper balance between the protection of the environment and the development process.

9)  Judiciaries balancing strategies on Bore wells and tanks

In Ashok Kademani v.State of Karnataka ⁴⁴the petitioners were agriculturists who used to dig borewells in their property for agricultural purposes. They allowed other villages to use the excess water for drinking purposes free of cost. Municipal Council directed to handover the borewell when the surrounded land got dried. The Karnataka High Court held this action as arbitrary.

The Court in Intellectuals Forum, Tirupathi v. State of A.P. and Ors.⁴⁵  noted the
competing interests of protecting the environment and socio-economic development for preservation and restoration of status quo of two tanks which was sought to be converted for meeting requirements of shelter. Court held that the intention for development will not be enough to sanction the destruction of local ecological resources. The balance has to be brought between requirements of shelter and preservation of two tanks. Since developmental activities were going on for a prolonged period, the natural resources of these lakes were lost and were irreparable. The Court upheld the development process and stated that due to impossibility no order could be given to preserving water tanks but ordered to stop further construction in that area.

10)  Judiciaries balancing strategies for Dam Projects

In a developing Country like India, we need advanced methods to eradicate poverty without environmental hazards. The principle of Sustainable development should be used in a better manner to avoid such problems. As far as Dam Projects are concerned Supreme Court and other Courts appreciated the Projects with proper implementation plans. In Tehri Bandh Virodhi Sangarsh Samiti v.State of U.P.⁴⁶, PIL was filed challenging the construction and implementation of Tehri Hydro Power Project and Tehri Dam within the earthquake zone. This project was considered by the Environmental Appraisal Committee of Ministry of Environment and Forests and also by other renewed experts of international repute. Hence, the Supreme Court refused to interfere.

The construction of Sardar Sarovar Dam was questioned in Narmada Bachao Andolan v. Union of India.⁴⁷ The Court allowed the construction up to 90 metre height with immediate effect. Whereas, construction above 90 metres height to be taken up after necessary clearance, Relief, and rehabilitation to oustees to be immediately given in terms of packages offered. Environment sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment. The directions of Narmada Control Authority with regard to the acquisition of land for the purpose of relief and rehabilitation are binding on each state and every endeavor shall be made to see that the project is completed as expeditiously as possible.

In N.D. Jayal v. Union of India,⁴⁸Court held that the right to clean environment and right to development is the vital part of Article 21 of the Indian Constitution which comes under Fundamental Rights. The Court explained sustainable development as a ‘means to achieve the object and purpose of the Environment Protection Act, 1986 as well as protection of life envisaged under Article 21. The Court also observed that the conditional clearance that the Ministry of Environment and Forests had granted for the construction of Tehri Dam was not properly implemented. Supreme Court stated that the disaster management must be integrated with developmental activities. Court asked to rehabilitate the displaced people from that area within six months to lead a decent life and earn a livelihood. The Court, in this case, on Sustainable Development stated that “Acknowledgement of this principle will breathe new life into our environmental jurisprudence and Constitutional resolve... the object and purpose of the Act... ‘to provide for protection and improvement of the environment’ could only be achieved ensuring the strict compliance of its direction.”

11)  Judiciary’s balancing strategies in Cattle grazing Land (Gomal Lands)

Conversion of grazing land into industrial land was challenged by the agriculturalists in Karnataka Industrial Areas Development Board v.Sri. C.Kenchappa and Ors.⁴⁹In this case, Division Bench of High Court quashed the acquisition proceedings to extent of land which was reserved for grazing cattle, agricultural and residential purpose. Supreme Court explained that sustainable development means development appeal which can be sustained by nature with or without mitigation. It also observed that a delicate balance between industrialization and ecology needs to be maintained. The extent of pollution created as a consequence of development must not exceed the carrying capacity of the ecosystem. It also stated that if direction given by Division Bench is implemented appellant cannot acquire any land for development. Supreme Court set aside the order of Division Bench and directed that (1) ... in future, before the acquisition of lands for development, the consequence and the adverse impact of development on the environment must be properly comprehended and the lands should be acquired for development that they do not gravely impair the ecology and environment. (2) ...the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The said directory condition of allotment of lands can be converted into a mandatory condition for all the projects to be sanctioned in the future. Supreme Court noted that the Nation’s progress largely depends on development, therefore, the development cannot be stopped, but we need to control it rationally. Supreme Court also gives special emphasis on environmental awareness, people’s participation, proper implementation of environmental protection rules and scientific study on sustainable development.⁵⁰

Conclusion

“Our minimum concern is the quality of space we live in, the purity of air we breathe, the food we eat, the water we drink and the resources we draw from our environment to support our economy.”                         -- K.R.Dikshit

Our very existence depends on the environment and it is the need of the hour to protect and preserve our natural wealth for the wellbeing of all generations. A golden balance between socio-economic development and ecological preservation should be maintained with
co-ordinated efforts of all stakeholders to reach the goal called ‘sustainable development’. When there is a serious threat or irreversible damage to the environment, then lack of scientific certainty should not be a ground for postponing precautionary measures to protect the environment. Environmental Jurisprudence in India evolved through judicial activism. Indian Judiciary’s contribution to developing the concept of sustainable development is incredible. It acted as Environmentalist, Industrialist, Economist, and Socialist in one row to manage environmental protection along with socio-economic development.

When you deal with the role of Judiciary certain questions will come up in your mind i.e.

       i.   Whether the judiciary is biased towards development?

       ii.  Does the term sustainable development itself is against the environment?

       iii.How to reconcile both development and environment especially when it is against each other ?

       iv.Who will be the ultimate victim?

       v.  Does the term Sustainable Development need a perfect definition?

       vi.What all are the criteria to determine Sustainable development? Who will determine the limit of Sustainable development?

       vii.                                                                           Whether India needs legislation on Sustainable Development ?

Proper answers to these questions will help us to reach sustainable development goals by integrating the balance between the environment and development. Most of the Industrial pollutions are the outcome of inadequate precautionary measures to protect our ecology. Public awareness and continuous evaluation of projects is a must to reconcile the balance between environment and development. It is the balancing strategies of the Judiciary which helped us in maintaining these balances. Judiciary tried to anticipate, prevent and attack the causes of environmental degradation for the sustainable use of resources. The onus of proof is also placed on developers to show that their actions are environmentally benign. Judiciary used principles like inter-generational equity⁵¹, precautionary principle⁵², polluter pays principle⁵³ and public trust doctrine⁵⁴for preserving the environment.⁵⁵Still, the sustainable development ended up in total disaster in certain cases because of the hidden negative impacts of development over the environment. Some developmental projects prima facie seems to be advantageous and salubrious to nature later turned to be hazardous to it. Though the Judiciary tried to protect the environment with full efficiency at times they failed due to their lenient approach towards socio­economic problems like poverty and unemployment. Indian Judiciary took environmental governance into its own hand when the environmental regulatory bodies remained somnolent.

In short, Court in M.C.Mehta v. Kamal Nath⁵⁶rightly pointed out its strategy on Sus-tainable Development in simple words that “...The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.”

Foot Notes:

‘Doctrine of Precedent’

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)

THIS PAPER reflects the importance of judicial precedent, the product of decided cases in the determination of the law by the Judges and the value of the doctrine precedent in the administration of justice. The judicial precedent plays an active role in all judicial systems of all civilized countries of the World and it is a time-honoured dogma applied by and acted upon by the courts in the decision-making process. A ‘precedent’ is an authoritative decision well settled having a binding effect on another co-ordinate bench and inferior courts. It operates as a legal source of law, the binding force of it cannot be ignored or disregarded except in cases falling within the exceptions to the rule which rob of or devalue its authoritative force. The adherence to the rule of precedent is quintessential to ensure consistency and predictability in the judicial orders. The doctrine has been elevated to the status of Constitutional Law and received constitutional confirmation in Article 141 of the Constitution of India which mandates that law declared by the Supreme Court shall be binding on all courts within the territory of India.

Bentham calls ‘precedent’ as the ‘judge-made law’. Precedent, as a source of law, is constitutive and not abrogative in its nature. A Precedent follows law and does not amend or alter any existing law. The ‘doctrine of precedent’ has no statutory sanction and the same is based on a rule of convenience, expedience and also on public policy, which ought to be adhered to by the Courts to subserve the ends of justice. A refusal to follow a precedent or where a precedent is disregarded, it is an act of co-ordinate, not of superior, jurisdiction. The two Courts of equal authority have no power to overrule each other’s decision. Where a precedent is merely not followed, 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. The legal antimony thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them and sanctioning the other as good law. The effect of disregarding a precedent is a judicial indiscipline and opposed to all principles of judicial decorum and propriety and would expose to the criticism of ‘an aberration in judicial discipline’.

In Babilonia, before the region of Hammurabi, judicial decisions acquired the importance of legislation for disposal of subsequent cases. Similarly, in China, judicial decisions have acquired legal importance. Judicial decisions are treated as law in England and America.           

Salmond on Jurisprudence (12th Edition) lays down the principles relating to the binding nature of precedent as follows:

“Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which Judges must follow whether they approve of it or not.
A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical.”   

Lord Delvin observed: Precedents keep the law predictable and so, more or less ascertainable. Lord Chancellor Hailsham summed up the English practice when he said in Cassel & Co. Ltd. v. Broome¹:

“Their lordships regard the use of precedents as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.”

The above dictum has been followed by a three-Judge Bench of the Apex Court in Surinder Singh v. Hardial Singh and Ors.² to emphasise the need to follow the decisions of the larger Bench as also decisions of coordinate Benches and giving weight to consensus of judicial opinion.

A judgment of a Court operates as precedent only for what it decides, known as ratio decidendi and not for its general or casual observations called obiter dicta. Discerning or culling out theratio decidendi of judgment is by no means a simple or easy task. In the process of answering the main issue or dealing with the core of the dispute passing observations are bound to be made by the Court, here and there. Once the central issue involved in the case is identified, the view expressed by the Court on that issue deserves to be treated as the ratio decidendi. The observations in the process of reasoning or disposal of inconsequential or subsidiary issue, fall into the category of obiter dicta.

A precedent may lose all or much of its binding force in certain circumstance. A decision ceases to be binding if a statute or statutory rule inconsistent with it, is subsequently enacted, or if is reversed or overruled by a higher court. Such decisions are called ‘abrogated decisions’. Reversal occurs when the same decision is taken on appeal and is reversed by the appellate Court. Overruling occurs when the higher court declares in another case that the precedent case was wrongly decided and so, is not to be followed. When a case is overruled in the full sense of the word, the courts become bound by the overruling case not merely to disregard the overruled case but to decide the law in the precisely opposite way.

A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. The mere fact that the earlier court misconstrued a statute or ignored a rule of construction, is no ground for devaluing the authority of the precedent. Previous decision can be departed from if it is out of line with a binding precedent or established principles.

A precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. A court is not bound by its own previous decisions that are 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 a later court.

U.S. Supreme Court in United Estate v.. Wong Kim Ark ³, where Gray, J., observed :-

“General expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgement in a subsequent suit when the very point is presented for decision.” I may also refer to J.W. Salmond’s Article, “The theory of judicial precedents”
in 16 LQR 376, in which he has warned the Courts against laying down principles which are not required for the due decision of a particular case, or which are wider than is necessary for this purpose, giving as the reason the fact that the prerogative of a Judge is not to make law by formulating and declaring it, but to make law by applying it, and that judicial declaration unaccompanied by judicial application is not authority.” 

The observations of the Apex Court in a three-Judge Bench decision in Punjab University, Chandigarh v. Vijay Singh Lamba⁴, is noteworthy:

“.... It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore, Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be “stepping stones and not halting places.” Birch vs. Brown, 1931 AC 605 (631). But, Justice Cardozo’s caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings.”

In the Constitution Bench decision in Minerva Mills Limited & Ors. v. Union of India⁵, it has been held that the doctrine of stare decisis is evolved from the maxim stare decisis et non quitamovere meaning “adhere to the decision and do not unsettle things which are established”, and it is a useful doctrine intended to bring about certainty and uniformity in the law. However, it cannot be regarded that the doctrine of stare decisis as a rigid and inevitable doctrine which must be applied: at the cost of justice. There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. “Stare decisis” as pointed out by Brandeis “is always a desideratum, even in these constitutional cases, but in them, it is never a command.” The Court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons. The power of review must be exercised with due care and caution and only for advancing the public well-being and not merely because it may appear that the previous decision was based on an erroneous view of the law. It is only where the perpetuation of the earlier decisions would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the constitution-makers or to use the words of Krisha Iyer, J. in Ambika Prasad Mishra v. State of U.P.⁶:

“Where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake up that the court would be justified in reconsidering its earlier decision and departing from it. It is fundamental that the nation’s constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues. The court should not indulge in judicial destabilization of State action and a view which has been accepted for a long period of time in a series of decisions and on the face of it millions of people have acted and large numberof transactions have been effected, should not be disturbed.”

In the decision in Union of India v. Dhanwanti Devi⁷, a three-Judge Bench of the Apex Court held that

“......It is not everything said by a Judge while giving judgement that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgement based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgement. Every judgement must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgement and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgement in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgement that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arose in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.”

In Mishri Lal v. Dhierendra Nath⁸, the importance of the doctrine of stare decisis has been highlighted for the purpose of avoiding uncertainty and confusion. It has been held and observed that -

“The basic feature of law is its certainty and in the event of there being uncertainty as regards the state of law - the society would be in utter confusion, the resultant effect of which would bring about a situation of chaos - a situation which ought always to be avoided.”

In a three-Judge Bench in State of A.P. v. A.P. Jaiswal⁹, the Apex Court observed at page 761, paragraph 24.

“Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principles are based on public policy......”

In the decision in Chandra Prakash v. State of U.P.^.10,

“The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.”

In the decision in Royal Medical Trust v. Union of India¹¹, the Apex Court has held that -

“It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgement.”         

Significantly, the exemption/relaxation made while moulding relief in exercise of power under Article 142 of the Constitution by the Apex Court, the directions issued for the purpose of doing complete justice in any cause or matter pending before it cannot be taken as the law declared by the Supreme Court. Therefore, the relief given on special facts in exercise of the power under Article 142 of the Constitution of India cannot be treated and followed by the courts as ratio decidendi of that case. The power of the Supreme Court under Article 142 is meant to supplement the existing legal work - to do complete justice between the parties and it is conceived to meet the situation which cannot be effectively and appropriately tackled by the existing provisions of law. The inherent power under
Article 142 of the Constitution is vested with the Supreme Court alone and the power thereunder is sparingly used and orders and directions issued by the Supreme Court under Article 142 ‘to do complete justice between the parties’ cannot form a binding precedent to follow in subsequent cases.

The locus classicus observation of Lord Denning in the matter of applying ‘precedent’ is worth quoting here:

“Each case depends on its own facts and close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such case. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive........ Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”                                                                                 

Thus, the process of reasoning in a judgment should reflect its integrity and explain its conclusion.                

‘The Inversion Test’ is one of the well-established tests for determining whether the observations made, albeit to be construed as advisory or suggestive, are to be treated as ratio decidendi or obiter dicta. The Inversion Test was propounded by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called “The Study of Cases Eugene Wambaugh”, The Study of Cases (Boston: Little, Brown, & Co., 1892) in the year 1892. The Inversion Test is used to identify the ratio decidendi in any judgement. The central idea, in the words of Professor Wambaugh, is as under:

“In order to make the test, let him first frame carefully the supposed proposition of law. Let him then inquire whether, if the Court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. Eugene Wambaugh, The Study of Cases (Boston: Litgtle, Brown, & Co., 1892) at pg. 17“.

‘The Inversion Test’ has been adopted, followed and applied by the Apex Court in the decision in State of Gujarat and Ors. v. Utility User’s Welfare Association and Others¹² by explaining that “In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgement as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case.”

The Inversion Test provides a very useful method of ascertaining the ratio decidendi of a case.

The doctrine of precedent exposes itself to many exceptions. To quote the legal maxim: “The exception proves the rule” is apposite.

One of the exceptions to the rule of precedent is obiter dicta in a judgment of a
co-ordinate or higher court.

In the decision inDelhi Municipal Corporation v. Gurnam Kaur¹³, it has been held that :-

 “It is axiomatic that when direction or order is made by consent of the parties, the Court does not adjudicate upon the right of the parties nor lay down any principles. Quotability as ‘law’ applies to the principle of a case, its ratio decidendi. The only thing in a Judge’s decision binds as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.” Obiter dicta means what the words literally signify, namely, statements by the way. Stated another way, obiter dictum is an observation which is either not necessary for the decision of a case or does not relate to the material facts in issue.

In the decision in Post Graduate Institute of Medical Education and Research, Chandigarh v. K.L.Narasimhan¹⁴ the question whether a smaller Bench is bound by the obiter in a judgment of the larger Bench is left open.

Yet another exception to the binding force of precedent is the concept of sub-silentio.

P.J. Fitzgerald, Professor of Law in the University of Leeds, Editor of the ‘Salmond on Jurisprudence’ 12th Edition explains the rule of sub-silentio in the following words:

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to the mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of particular party unless it also decided point B in his favour; but point B 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 decision is not an authority on point B. Point B is said to pass sub silentio.”

The above concept of sub-silentio explained in Salmond on Jurisprudence has been adopted and applied in the decision in Municipal Corporation, Delhi v. Guarnam Kaur by the Apex Court and relying on the decisions inGerard v. Worth of Paris Ltd. (K)¹⁵ and the subsequent decision of the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd.¹⁶, the Apex Court held that any case decided “without argument, without reference to the crucial words of the Rule, and without any citation of authority” was not binding and would not be followed. Accordingly, it has been held that the precedents sub-silentio and without argument are of no moment. Decision passed sub silentio is at no moment and is an exception to the doctrine of precedent to avoid the conflicts of authority and to secure certainty and uniformity in the administration of justice.

A further exception to the fundamental rule of ‘precedent’ is the concept of ‘per incuriam’. The principle is often invoked for declining to follow a particular decision which had been delivered in ignorance of the statutory provisions and the earlier larger Bench decisions treating such decisions as not binding precedents. In other words, any case decided in ignorance of a rule of law binding on the Court is said to be decided per incuriam. The fact that a case was argued inadequately and the decision thereon does not qualify as one decided per incuriam. None-the-less, the unargued cases do not have full binding authority.

The concept of per incuriam had been explained in A.R. Antulay v. R.S.Nayak¹⁷ as -

“..... ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

Identical view was expressed in the Constitution Bench Judgement of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court^18.

In the decision in State of U.P. v. Synthetics and Chemicals Ltd¹⁹ it has been held:-

“ ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to be per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority’. Young v. Bristol Aeroplane Company Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.”

The rule to adhere scrupulously to precedent has been explained in the judgment in Suganthi Suresh Kumar v. Jagadeeshan²⁰, To quote:-

“It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

In yet another Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra²¹, the Apex Court after examining the law laid down by the Constitutional Benches summed up the legal position in the following terms:

“(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing.

In the decision in V.Kishan Rao v. Nikhil Super Speciality Hosptial & Anr.²²the Supreme Court has held that -

 “When a judgement is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are renderedper incuriam.”

The central principle which should be borne in mind is that the courts are not to perpetuate an illegality rather it is the duty of courts to rectify mistakes. While dealing with this issue, the Court in Hotel Balaji v. State of A.P.²³ cautioned that -

12.... ‘2.... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson on Pierce v. Delameter.

 “A Judge ought to be wise enough to know that he is fallible and therefore, ever ready to learn, great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.”

In the judgment in Supreme Court Advocates-on-record Association v. Union of India²⁴,
 a Constitution Bench of the Supreme Court held that -

“The mandate of Article 141 obliges every court within the territory of India to honour the interpretation, conclusion, or meaning assigned to a provision by this Court. It would, therefore, be rightful to interpret the provisions of the Constitution relied upon by giving the provisions concerned, the meaning, understanding and exposition assigned to them on their interpretation by this Court. In the above view of the matter, it would neither be legal nor just to persist on an understanding of the provision(s) as concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this Court.”

In the decision inState of Assam v. Ripa Sarma²⁵, the Apex Court has reinforced the principle that judgement rendered per incuriam cannot be ennobled to the rule of precedent.

The general rule is that a court is bound by the decisions of all courts higher than itself which is called ‘the hierarchy of authority’. The above general rule is based on the principle of judicial comity to secure certainty and uniformity.

The issue whether the weight of members of judges in a Bench which decided unanimously be overruled by the decision of a subsequent larger Bench merely by reason of the strength constituting the larger Bench without regard to the number of the judges who decided the issue unanimously dissenting from the majority view of the larger bench is a vexed question. The above conundrum was paused by M.P. Lokur, J., in Supreme Court Advocates-on-Record Association v. Union of India²⁶, the Apex Court held:

“One of the more interesting aspects of Pradeep Kumar Biswas is that out of the 7 (seven) learned Judges constituting the Bench, 5 learned Judges overruled the unanimous decision of another set of 5 learned Judges in Sabhajit Tewary. Two of the learned Judges in Pradeep Kumar Biswas found that Sabhajit Tewary had been correctly decided. In other words, while a total of 7 learned Judges took a particular view on an issue of fact and law, that view was found to be incorrect by 5 learned Judges, whose decision actually holds the field today. Is the weight of numbers irrelevant? Is it that only the numbers in a subsequent Bench are what really matters? What would have been the position if only 4 learned Judges in Pradeep Kumar Biswas had decided to overrule Sabhajit Tewary while the remaining 3 learned Judges found no error in that decision? Would a decision rendered unanimously by a Bench of 5 learned Judges stand overruled by the decision of 4 learned Judges in a subsequent Bench of 7 learned Judges? Pradeep Kumar Biswas presents a rather anomalous situation which needs to be addressed by appropriate rules of procedure. If this anomaly is perpetuated then the unanimous decision of 9 learned Judges in Third Judges case can be overruled (as sought by the learned Attorney General) by 6 learned Judges in a Bench of 11 learned Judges, with 5 of them taking a different view, bringing the total tally of Judges having one view to 14 and having another view to 6, with the view of the 6 learned Judges being taken as the law!”

 The Apex Court in the recent judgement in Shanti Fragrances v. Union of India²⁷, posed the question whether, after Union of India v. Reghubir Singh²⁸, it can be stated that Judges of this Court do not sit in 2s and 3s for mere convenience, but that a Bench which is numerically superior will prevail over a Bench of lesser strength. If the ‘doctrine of precedent’, as applied by this court, is to be a matter of numbers, then, interestingly enough, as has been held by Beaumond, C.J., in Ningappa Ramappa Kurbar v. Emperor²⁹,
the position of law could be as under:

“.... The Court in that case consisted of five Judges, one of whom, Shah, J., dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a Full Bench of this Court of four Judges in Queen Empress v. Mugappa Bin Ningapa which had reached a different conclusion. Apparently, it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench. There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later Bench consists of more Judges than the earlier. If that were the rule, it would mean that a Bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction.”

Accordingly, the Hon’ble Chief Justice is requested to constitute an appropriate Bench in order to decide as to whether the Kothari Products Line or the Agra Belting Works Line is correct in law, and also to lay down, as a matter of law, as to whether and to what extent the propositions contained in Ningappa Ramappa Kurbar, Lokur, J.’s observation in Supreme Court Advocates-on-Record Association and Harper ³⁰ judgement of the Court of Appeal in the UK should guide us for the future.

Article 141 empowers the Supreme Court to declare law and the declaration made by the Supreme Court is binding on all courts within the territory of India. Article 141 has a tone of inexorable command to follow the precedent if it is absolutely binding and indistinguishable. Therefore, the law declared by the Supreme Court should be extended and applied to all other identical situations, factual and legal with all its rigor.

Article 141 of the Constitution does not contain a restraint clause limiting the power of the Supreme Court to review its own decisions. In the seven-judge Bench decision of the Supreme Court in Kesav Mills Co. Ltd, Petlad v. The Commissioner of Income Tax, Bombay North³¹ it has been held that

“When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the Country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case, it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revisiting its earlier decisions. It would always depend upon several relevant considerations. What is the nature of infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspect of the question remain untouched, or was the attention of the court not drawn to any relevant and material statutory provision, or was any previous decision of this court bearing on the point not noticed? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on the subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned judges of this Court.”

In view of the above authoritative pronouncement rendered by seven-judge Bench decision of the Supreme Court, the principle of doctrine of precedent/the principle of stare decisis cannot be pressed into service in cases where the jurisdiction of the Supreme Court to reconsider and revise its earlier decisions is involved; but nevertheless, the normal principle that judgments pronounced by the Supreme Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, the Supreme Court would be reluctant to review and revise its earlier decisions.                  

Be that as it may, the practice of bestowing ‘undue servitude to the bondage of precedents’ has been deprecated by the Apex Court in Gur Charan Singh v. State of Punjab³². In the judgement in Mumbai Kamgar Sabha v. M/s. Abdulbhai Faizullabhi³³, Krishna Iyer, J., for the Bench delivered the judgement cautioning that -

“It is trite, going by Anglophonic principles, that ruling of a superior court is binding law. It is not a scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milie we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myriad developments. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court’s casual observations, generalisations and sub-silentio determinations must be judiciously read by courts of co-ordinate jurisdiction . . . . . .”

Therefore, conscious recognition of the element of evaluative choice of ratio decidendi must necessarily be carried out in the process of decision-making and the ‘doctrine of precedent’ cannot be disregarded or turned down showing unwarranted casualness, the result of which would lead to utter chaos and lawlessness shattering the confidence of the litigating public and dependability on the judicial system.

The imperative note in Article 141 of the Constitution of India is a constitutional call to abide the law declared by the Supreme Court by all Courts which is a recognition of the hierarchy of authority and in a way, acceptance of the ‘rule of precedent’. The ‘rule of precedent’ has acquired the status of inviolable article of the code of conduct to be observed by all Judges in the country. Judicial discipline obligates the courts to follow an authoritative judicial precedent adopting a ‘principled approach’ to issues involved in a case. The ‘rule of precedent’ become accepted as the basic rule of our legal system, the adherence to which is the judicial responsibility in the system of justice. The credibility in the functioning of justice delivery system depends upon the strict adherence to the ‘precedent’. The Judiciary, as a public institution, must meet the test of confidence, reliability and dependability, which is an essential attribute of ‘rule of law’ and then, it will certainly build a solemn atmosphere in the dispensation of justice.

Foot Notes:

A Very Interesting Ruling of SC on Section 43 of the Transfer of
Property Act, 1882 read with Code of Civil Procedure, 1908

(By C.S.Raghu Raman, Professor, Law Faculty, Bangalore)

Lord Justices R.C. Lahoti and Brijesh Kumar gave their ruling¹on the following facts.

Mr. Rameshwar Singh, had a son, Mr. Mahendra Singh through his first wife Mrs. Ram Sakhi and has another son, Suresh Prasad, from his second wife, Mrs. Dhaneshwari Devi.

While Dilip, Pradeep, Rajesh, and Rakesh are sons of Mahendra Singh, Ranjan and Rajkumar are sons of Suresh Prasad through his wife, Renu Devi, Plaintiffs-Appellant.

A suit for partition was filed by Suresh Prasad and his two sons, (referred to as ‘Group-1’ )
against Rameshwar Singh and Dhaneshwari Devi, Defendants 1 and 2 (‘Group-2’) and Mahendra Singh, Dilip, Pradeep, Rajesh and Rakesh as defendants 3 to 7 (‘Group-3’).

The final decree, given in the above suit on compromise, later engrossed and drawn up on stamp paper on 24.5.1979²was nothing but just a reproduction of the preliminary decree dated 13.2.1978.³

Subsequently, Group-2, on the strength of the final decree, executed a registered gift dated 22.3.1979 of a House allotted to them to Mrs. Renu Devi.

Thereafter, Trial Court and the first appellate courts dismissed three suits.⁴

The High Court on 23.6.98, allowed second appeals by Group-3, setting aside First Appellate Courts decisions, on sole reason that ‘since Rameshwar Singh and Dhaneshwari Devi acquired their separate title in the joint property only on 24.5.1979 when the final decree was engrossed on stamp paper, they were legally incompetent to gift their property by the gift deed dated 22.3.1979 so as to transfer title to the donees.’

The SC held that since Dilip’s appeal⁵has been dismissed and has not pursued further to challenge partition decree itself, it has become final and is not open to question.

Therefore, Renu Devi was automatically been successful⁶in obtaining possession and title under the compromise decree dated 24. 5.1979 read with gift dated 22.3.1979 on eviction of Group-3 from the house.

It is clear that “Renu Devi’s right to acquire title to property under the gift deed depends on which date, 13.2.1978 or 24.5.1979, the donors had acquired right to transfer the property.”

In SC, Lord Justices R.C Lahoti and Brijesh Kumar, after examining the distinction between preliminary and final decree, held that “for all practical purposes the decree dated 13.2.1978 was a final decree as no further inquiry is required since under Order XX Rule 18
of the C.P.C. “it is not necessary to pass a preliminary decree” when all groups completely settled the matter since that ‘in partition suits there is nothing in law which prevents the Court from passing a final decree in the very first instance in above circumstances. Often such are the cases which are based on compromise. The present one is such a case.’

In coming to their decision The SC completely accepted the position of law laid down by the Patna High Court,⁷supported by two earlier decisions of Oudh Chief Court⁸and Madras High Court. ⁹

The gist of the ruling of Lord Justices Pande and Sinha in Raghubir Sahu is that when the shares in properties allotted to each party were clearly specified in schedules on compromise, the decree passed becomes the final decree in the suit but not a preliminary decree.

Very significantly said that Lord Justices Pande and Sinha ‘this final decree was to be engrossed on a stamped paper under Article 45, Stamp Act, 1889, though no time limit prescribed by the statute, giving date of the decree, 17th December, 1921, mere engrossment on stamped paper will not in any way affect the interest of the parties in respect of the properties though, changes may have taken place in regard to the properties since the decree was made on 17th December, 1921. The only effect of engrossment of the decree on stamped paper would be that it will be rendered legally effective which it is not until so engrossed.”           (emphasis supplied)¹⁰

Then in an interesting new development, Lord Justices R.C Lahoti and Brijesh Kumar applied “the principle of the feeding the grant by estoppel” in Section 43 of the Transfer of Property Act giving more legal force” to the right Renu Devi to deed as valid.

Declaring that S 43 of The T.P. Act, 1882 in fact does not apply in this case since the gift deed dated 22.3.1979 is ‘not a transfer for consideration,’ yet Lord Justices R.C Lahoti and Brijesh Kumar, after observing that “Section 43 was only illustrative having statutory recognition in India derived from the principle of equity,¹¹declared that ‘on the subsequent acquisition of title by donors under the final decree dated 24.5.1979,’ the property shall ensure to ‘the benefit of the donee’ with whatever infirmity, though they found none, in the title was cured on that date.’

The SC further clarified that “the doctrine may not apply if the deed of transfer itself was invalid or if the third party has acquired title bona fide, for consideration and without notice, but deed of gift dated 22.3.1979 has no illegality or invalidity. The rule of estoppel by deed would clearly apply. The decree dated 24.5.1979 engrossed on requisite stamp papers would in the facts and circumstances of the case, relate back to the date 13.2.1978.¹²

Renu Devi was also successful when First Appellate Court decisions are restored.

In his concluding remarks the author humbly expresses his opinion that “there is no necessity to apply S.43 of The T.P.Act, 1882 unless Lord Justices R.C Lahoti and Brijesh Kumar have some doubts on the date of coming into force of decree in partition in view of provisions of Stamp Act and also in not supporting contrary opinion of High Court.

Further, when Lord Justices R.C. Lahoti and Brijesh Kumar completely “accepted that Patna High Court and other Courts laid down the correct law” that ‘engrossment of the decree on stamp paper is serious issue, not merely a formality,’ then without engrossment of the decree on stamp paper, the donee does not acquire perfect rights to the land from the donor having no rights over the land.

But quoting and approving Renu Devi, The 3 Judge Bench in Dr.Chinrajit Lal held that for the purpose of execution of the decree in a partition suit, the period of limitation prescribed in Art.136 of the Limitation Act, 1963 ‘begins to run from date of passing of decree” and “the date of engrossment of decree on stamp paper is totally irrelevant.”

Since the final decree is nothing but exact replica of preliminary decree, passed on compromise among all the groups as to allotment of properties, the ruling in Renu Devi
can be supported that for purpose of Art.136 of the Limitation Act, 1963, the date of engrossment of the decree is completely ignored.

It is to be carefully noted that Renu Devi is not at all concerned, directly or indirectly, with the issue of execution proceedings since on ‘both facts as well as on legal issues, there is sea of difference between Renu and Dr.Chinrajitlal.

In fact it clearly appears that Lord Justices R.C. Lahoti and Brijesh Kumar took assistance from T.P. Act when they had some serious doubts as to date on which the donor had acquired rights to the land in view of two decrees having two different dates.

What could have been the ruling of Lord Justices R.C. Lahoti and Brijesh Kumar had ‘there been no compromise among all the groups and final decree is completely different from preliminary decree,’ is purely speculative question.

Therefore, as the legal position as of today, irrespective of engrossment of decree or not on stamp paper deliberately or innocently by decree holder, executing court has no powers to stall the execution proceedings.

Let us hope that SC may have further opportunity to bring clarity to this matter.

Foot Notes: