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Questioning the Quorum: A Fresh Look into the Doctrine of Stare Decisis by Uday Bedi

The Author: Uday Bedi is a Law Student Studying at Jindal Global Law School, Sonipat

Introduction

P.A. Inamdar & Ors. v. State of Maharashtra & Ors.[i] is famous for its stand on article 30(1) and its interpretation of T.M.A Pai Foundation v. State of Karnataka.[ii] It is one of the classic examples that shows how the doctrine of stare decisis works in India. A brief summary of the case is as follows:

Article 30(1) of the constitution was being interpreted in various cases in the Apex Court. An 11 judge bench was constituted to interpret the article as a lot of confusion had arisen after 4 decisions were passed on this matter. They were Unni Krishnan v. State of Andhra Pradesh,[iii] St. Stephen’s College v. University of Delhi,[iv] Ahmedabad St. Xavier’s College Society v. State of Gujarat[v] and In Re: Kerala Education Bill.[vi] The 11 judge bench in T.M.A Pai Foundation v. State of Karnataka,[vii] dealt with various issues such as whether education is an occupation under Article 19, whether minority institutions have authority to determine their own fee structure and criteria for admissions and also whether minority status was to be judged keeping a state as a unit or the entire nation. The judges in P.A. Inamdar case were merely deciding whether the decision given in the case of Islamic Academy of Education & Anr. v. State of Karnataka & Ors[viii] was in line with Pai Foundation case or not.

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Precedents and Stare Decisis in the Indian legal system

The Indian judicial system is based upon UK’s common law that is founded upon the principle that apart from legislative enactments, law is often made and evolved through judicial precedents that also enable an assurance of certainty to advocates who can base their cases, arguments upon precedents that establish judicial thought. Entire concept of Rule Skepticism, explained by HLA Hart[ix] and criticized by American legal realists like Frank and Holmes is based on how the job of the lawyer has been reduced to predicting the actions of the higher judiciary and accordingly preparing arguments.[x] The Supreme Court of India is a poly vocal court, where there are stark contrasts in the opinions of the judges. Some believe in a positively activist court, while some believe in negatively activist courts. All of them have different views on various matters, for example the death penalty, homosexuality, adultery, marital rape etc.[xi] Therefore, there is bound to be conflict within the decisions.

Article 141 of the Constitution of India states that the law declared by the Apex Court shall be binding upon all courts within the territory of India. There is a vertical and a horizontal application of this provision as a result of which courts seldom deviate from precedents so established. They rarely can even question or dispute the precedent and probably lack the judicial muscle to decide matters contrary to the decisions of the Supreme Court. Precedents are used to buttress and negate the essence of litigations, and citations of precedents often form the basis of determination by such courts. Vertical application binds all courts lower to the Apex Court by its decisions and horizontal application binds the Apex Court itself with its decisions.  Rarely does the Apex Court set aside or modify its own decisions though there have been a few stray instances where the Apex Court has been forced to revisit questions defied logic, substance and the interpretation of legislative intent behind such determinations. For true justice to prevail, the judgments which are clearly devoid of logic or give a blind reading to precedents soon need to be overturned.

In Union of India and Anr. v. Raghubir Singh (dead) by Lrs.[xii] The Constitution Bench reaffirmed the doctrine of binding precedents as it has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individuals as to the consequence of transactions forming part of his daily affairs.

 In Union of India & Anr. v. Hansoli Devi & Ors.[xiii], the Constitution Bench has reiterated the principle of judicial discipline and propriety demanding that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges and if a Bench of two learned Judges was inclined not to do so then the proper course for it to adopt would be (i) to refer the matter before it to a Bench of three learned Judges, and (ii) to set out the reasons why it could not agree with the earlier judgment. The Constitution Bench concluded, “Then if the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect then a reference should be made to a Bench of five learned Judges”.

Uniformity, certainty, continuity, stability and consequent predictability of the law are important for its acceptance as an integrative mechanism and hence laws’ moral commitment to the doctrine of precedent, which however, can interfere with an equally important component viz. flexibility.[xiv] Vertical application of precedent is a process by which the Apex Court gains overriding authority as the highest court of law in this country and such application is deemed essential to establish the primacy of the Apex Court. Else, the very meaning and legislative intent behind the formation of the Apex Court would be nullified and negated. The following are two illustrations of how the vertical application of this doctrine works.

“It is impermissible for the High Court to overrule the decision of the apex Court on the ground that 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.”[xv]

In a subsequent case, it was observed, “It was pointed out by this court that the High Court cannot question the correctness of the decision of the Supreme Court even though the point of law sought before the High Court was not considered by the Supreme Court.”[xvi]

On the other hand, the strength and factual relevance of horizontal application is often debated. There have been numerous instances where the Apex Court has overturned its own decisions in the past. Our legal history provides us with cases like Bank Nationalisation,[xvii] Maneka Gandhi[xviii], Shamsher Singh,[xix] Golak Nath,[xx] Kesavananda Bharati,[xxi] and above all, Bengal Immunity[xxii], which show us the readiness of the Apex Court to overrule its prior decisions.[xxiii] The Bengal Immunity case[xxiv] is the prime case which laid down that the Apex Court is not bound by its own decisions. Recently, the Apex Court while following the decision in Bengal Immunity case held,

“The fact that the precedent was long standing and could possibly be reconciled with later decisions would not save it from being overruled if on determination it is found plainly erroneous. Because mistake is not to be perpetuated.”[xxv]

However, a strong support for horizontal application was found in Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors.[xxvi]  We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one jurist put it, the Supreme Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law.

“Consistency is a virtue, passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it, according to law. Orders which are inconsistent with the legal conclusions arrived at by the court in the selfsame judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor’s foot.”[xxvii]

It is also known that the above position is not to be stuck to when the court has made an erroneous judgment, which has opened the doors for further confusion and litigation. In any case, the doctrine of stare decisis is not an inflexible rule of law and cannot be permitted to perpetuate errors to the detriment to the general welfare of the public or a considerable section thereof.[xxviii]

Though the words of Article 141 state that the decision of  SC will be binding on all courts, the SC itself is not to be considered as being covered under “all courts”. Being the highest court of law in the country, it is open to the Supreme Court not to feel bound by its own decisions because if it were permitted, the march of judge-made law and the development of constitutional jurisprudence would come to a standstill.[xxix] Especially when the Supreme Court acts on constitutional matters, one must not subject it to the objective tests made by the precedents, as the ultimate test of constitutionality has to come from the constitution itself. Its provisions must be liberally construed and it should not be made into an objective document. Therefore, it is established that SC has the power to review the decisions given by itself in previous instances.

At this stage, it is pertinent to see how this doctrine was applied in   Inamdar case. The judgment ends with the following words:

“Certain recitals, certain observations and certain findings in Pai Foundation are contradictory inter se and such conflict can only be resolved by a bench of a quorum larger than Pai foundation. There are several questions which have remained unanswered and there are certain questions which have propped up post Pai foundation and Islamic academy. To the extent the area is left open, the benches hearing individual cases after this judgment would find the answers. Issues referable to those areas which are already covered by Pai foundation and yet open to question shall have to be answered by a bench of larger quorum than pai foundation. We leave those issues to be taken care of by posterity.”

The above paragraph  somehow recommends for a reflection upon the heart of the matter, which is, enquiring as to whether apart from the horizontal application whereby a larger bench of the Apex Court can always overturn its past decisions taken by a lower bench to reflect the desired level of certainty and moral ground to overturn precedents, the law of precedent should also have a diagonal application, that is, whether a court of a lower bench strength should be allowed to overturn or distinguish from a judgment given by a higher bench strength. The case of TMA Pai Foundation was being heard by an 11 judge bench that ruled 6:5 i.e. six judges gave the majority decision whereas five dissented. Therefore, the “effective strength” (a term that will be used to refer to the number of judges forming the majority) that laid down the law in Pai Foundation was that of only six judges. The above situation tells us that a contrary view to the law laid down was also quite probable and could not be ignored. In fact, Article 145 states that dissenting opinions have a great persuasive value for subsequent judgments. The seven judges in the Inamdar case had a unanimous view that there were factual and legal discrepancies in the Pai Foundation case that required rectification and remediation; yet they refrained from acting on it primarily because the Pai Foundation judgment was delivered by a quorum of 11 judges even though the effective strength therein was 6. Had the judges in the Inamdar case modified the precedent in the Pai Foundation case, the effective strength of such a determination would have been seven which is a higher effective strength than that in the Pai Foundation case. The moot question is: should an effective strength of seven (in the Inamdar case) be allowed to overrule the decision in Pai Foundation where the effective strength was 6 even though the bench strength in the Inamdar case was 7 but in the Pai Foundation it was 11?

The answer to the above question ought to be in the affirmative to correct inherent anomalies of perception and understanding of the statute in ‘flawed’ precedents and not leave their inadequacies, inconsistencies and judicial errors – both factual and of comprehension – only to the wisdom of posterity.

Effective Strength over Quorum

Quorum is the total strength of the judges that decides a particular case and the larger the quorum, the more value that particular decision is perceived to have. A decision of a constitution bench and a decision by a bench of more strength cannot be overlooked to treat a latter decision by a bench of lesser strength as of a binding authority.[xxx] In case of a conflict between the decision of an earlier smaller bench of the Apex Court and that of the subsequent larger bench, it would not be appropriate to proceed on the opinion expressed earlier by the smaller bench.[xxxi]All the above observations are made with the presumption that the entire quorum thinks alike and there is no dissent. While the above rules must apply when there is a unanimous decision, there could be several situations when a dissenting opinion is given. It is in such situations when “effective strength” ought to be a proper parameter of the application of precedents. Consider a quorum of nine who preside over a case to establish the right to life. If the majority decision is passed by 5 judges that there should not be a right to life (effective strength being 5) and subsequently, a unanimous decision by a quorum of 7 decides that there should be a right to life (effective strength being 7 even though quorum is smaller), then the subsequent decision must prevail since effectively, more number of judges are in favour of right to life than the number that decided against it. Merely because the number of judges was higher in the former does not mean that its determination was right only because a higher number of judges considered the question of right to life and so decided by an effective strength of only 5 that right to life be taken away whereas a lower quorum but with a higher effective strength disagreed with the former. Conversely, let us consider a different situation, in which a quorum of 11 is deciding the right to property and decides in favour of it in the ratio 9-2 (effective strength being 9), whereas, subsequently, a quorum of 13 decides against it in a ratio of 7-6 (effective strength being 7). Under the present rule of horizontal application, the 13 judge bench will overrule the decision, but is it the correct and justifiable method? Clearly not, since the majority in the subsequent decision was smaller than the majority in the former. However, this is exactly how the case of Golak Nath was overruled by K.N. Bharati, the most celebrated case in the history of Constitutional Law in India. Merely because a larger bench decided the issue does not give it superiority. What matters is the effective strength who supported the majority view. The basis of effective strength is a better way to proceed since it gives value to greater number of judges in agreement and a lesser number disagreeing. In the following sections, some light will be thrown on the value of dissent.

Preference of effective strength over quorum is a novel idea that has not been argued before and there is enough literature highlighting importance of quorum. Hence, it is going to be a Herculean task to break the pre-existing conventions.

It is true that a quorum is a deliberating body, however, it needs to be kept in mind that, what is set as a precedent is only the ratio decidendi and not obiter dicta which can be found only by restricting the analysis to the majority judgment as it is the majority which decides the principle that will be applicable. The minority/dissenting opinion has no major role in demystifying the ratio of the case as it differs on the principle given by the majority. Hart, also explained that minority judges agree with the majority on the case law that is to be used as precedent, but they differ on the principle that comes out from them.[xxxii] Therefore,it is the majority opinion that is binding and not the minority. An argument is given that a larger quorum is superior because a larger deliberating body will come out with a much more informed decision. However, when an 11 judge bench passes as decision by a ratio of 9:2 which is against the decision by a 13 judge bench with a ratio of 7:6, even if in the former, we add two judges who in the worst-case scenario, take sides with the minority, even then, the majority in the former remains larger than the latter. How does this quorum suddenly become competent to overrule the previously standing precedent even though the principle coming out from the case is the same? Therefore, it is clear that supremacy of quorum of effective strength in certain cases has its flaws thereby allowing space for such incidents to happen. This shows that there could be incidents when effective strength could be given more weightage than quorum.

The vertical application of doctrine of precedent is based on the competence of judges, i.e. an Apex Court judge is perceived to be a more competent and experienced judge than a judge at a High Court. This seems to be a fair presumption since the judge of the Apex Court is in that position because he has proven himself to be worthy of it. The horizontal application on the other hand presumes that a larger bench is a more qualified one to overrule a decision taken by a lower bench. It is based on simple conversion of bench strength into competence and does not take into account the value of dissenting opinion. What needs to be seen is the effective strength because that gives a holistic picture about the legal authority of the decision overruling a precedent even though the number of judges so overruling is actually smaller than the number that established the precedent.

Value of dissent in precedents

Apart from being used for persuasive value in subsequent judgments, dissent also has a value because it reduces the effective strength of a larger bench where the number dissenting is higher hence, such a determination where the number of dissenting judges is more can be overruled by a lower quorum where the number dissenting is lower thereby making the maxim of effective strength of relevance and importance.

The law of precedent has made the application of law and legal determinations easier by raising expectations based upon judicial consistency of the two applications. In fact, an American practicing lawyer could successfully forecast the American Apex Court’s major civil rights decision in Gideon v. Wainwright[xxxiii] by using Boolean Algebra and a computer. What needs to be asked here is whether there is any value of a dissenting opinion which would make the law subjective. If we apply simple mathematics to the decisions in Pai Foundation and PA Inamdar, one can see that a total of thirteen judges were actually in favour of a position contrary to what is the present state of law made by a total of only seven judges. Yet, the decision in PA Inamdar left it for the larger benches to decide the issues that were left unattended in Pai Foundation. Judges in Inamdar kept repeating that even though they were inclined to give a decision contrary to the Pai Foundation, they were refraining from doing so because they constituted a smaller bench and therefore, lacked the judicial muscle to overturn what they unanimously perceived to be a flawed determination. The judges in PA Inamdar accepted that they lacked the capacity to do so. If the effective strength in a prior decision is equal to the effective strength in a subsequent decision, then the latter should be allowed to overrule the former even if the total bench strength in the latter is lesser than the former. Decisions like Pai foundation and K.N. Bharati tell us that the decision of one judge can change the entire position of law and also tell us about the importance of dissenting opinions. From various case laws, certain factors which favour overruling have been crafted. Some of which are:

  1. Judicial decision was divided.
  2. The previous decision has created more confusion to the public and has or has the proclivity and propensity to cause legal chaos.
  3. Constitution benches hearing a common question of law in two different appeals may be differently constituted. If the dissenting judgments delivered in both the appeals are considered together may result in exposing the court as an institution almost evenly split on the point requiring reconsideration.[xxxiv]

They have the power to overrule the precedent if followed in a subsequent case.  Precedents are based on the ratio decidendi of a prior case as the obiter dicta does not become a precedent. Finding out the ratio can be a tasking exercise and a dissenting opinion would substantially help in recognizing the real ratio decidendi of the case as it would make the process more transparent. If one were to just abide by precedents, then there would not be any refreshing appreciation and application of mind and while deciding, determinations would become a mechanical task of inserting facts and processing any decision. Law is more evolutionary by intent than by design and must consider, recommend and adopt judicially emerging thoughts that could be more luminescent and radiant than the turbid prescriptions of the past. There is a need to encourage objective creativity in law. Dworkin famously referred to this problem as the Chain Novel[xxxvi] problem where a novel to be written by 10 authors, the tenth author does not have as much discretion as the first author had. All he has to do is fit in his own story with the rest. Law cannot be allowed to be straight-jacketed and fettered by precedents and cannot evolve and develop if it continues to remain in its state of judicial inertia that is fostered and encouraged by reliance upon the present archaic rule of horizontal application. There is a constant need of change with changing times.

Another important role that dissent plays in judgment is that it weakens the majority judgment, as it shows that a different approach could be applied to the same set of facts and rules, or perhaps a separate rule fits better with that set of facts. Higher the number of dissents in a judgment, the weaker it becomes. Therefore, a judgment with a high effective strength automatically becomes a stronger judgment.

If a matter has come up before the court, it cannot be allowed to blindly apply precedents and give a partial decision leaving the rest to be decided by a larger bench. This is nothing but a sheer waste of legal acumen and probably may lead to denial of justice. HLA Hart in his Concept of Law states, there exists tension between those who accept and voluntarily co-operate in maintaining the rules and those who reject the rules. Though such a society may exhibit tension, between those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform, it is plain that the latter cannot be more than a minority for otherwise those who reject would have too little social pressure to fear. In simple words, for a law to be effective, it needs to be followed by more people than the number of people who disobey it and find it to be wrong. The same logic applies in the present situation where the majority lawmakers themselves are against the law. Such a law can never be effective and can never put an end to litigation.

Conclusion

It is clear from the above analysis that quorum is not the ideal criteria to judge which decision must act as a binding precedent, and dissenting opinion is just as important as the majority view. Serious questions inherent in the application of the rule of precedence under  horizontal application need to be reflected to reach an acceptable and desirable development and evolution of law whereby legal sanctity is given to corrections made in precedents so that perpetuation of what is ‘flawed’ and ‘erroneous’ is prevented.

 References 

[i] 2005 (6) SCC 537.

[ii] (2002) 8 SCC 481.

[iii] (1993) 1 SCC 645.

[iv] (1992) 1 SCC 558.

[v] (1974) 1 SCC 717

[vi] (1958) SCR 995.

[vii] T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

[viii] (2003) 6 SCC 697.

[ix] H.L.A. Hart, The Concept of Law 124 (2d ed. 1994), Clarendon Press, Oxford.

[x] J. Frank, Law and The Modern Mind, (English ed. 1949); See generally Oliver Wendell Holmes, Jr. The Path of The Law, 10 HLR 457 (1897).

[xi] See, Robinson, Nick, The Indian Supreme Court and Its Benches, available at https://india-seminar.com/2013/642/642_nick_robinson.htm (last seen at 10.1.2014, 11.59 pm).

[xii] (1989) 2 SCC 754.

[xiii] (2002) 7 SCC 273.

[xiv] A. Lakshminath, Judicial Process, Precedent in Indian Law 209 (3d ed. 2009) Lucknow Eastern Book Company.

[xv] Suganthi Suresh v. Jagdeeshan, AIR 2002 SC 681.

[xvi]Anil Kumar Neotia v. Union of India, [1988]3SCR738.

[xvii] R.C. Cooper v. Union of India, AIR 1970 SC 564.

[xviii] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[xix] Shamsher Singh and Anr. v. State of Punjab, AIR 1974 SC 2192.

[xx] I.C. Golak Nath & Ors. v. State of Punjab, AIR 1967 SC 1643.

[xxi] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.AIR 1973 SC 1461

[xxii] Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

[xxiii] Lakshminath, Supra note 17 at 137.

[xxiv] Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

[xxv]Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.

[xxvi] (1990) ILJ 318 SC

[xxvii]See Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1.

[xxviii] Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.n

[xxix] Union of India and Anr. v. Raghubir Singh (dead) by Lrs., AIR 1989 SC 1933.

[xxx]N.S. Giri v. Corporation of City of Mangalore, AIR 1999 SC 1958.

[xxxi]Union of India v. K.S. Subramanian, AIR 1976 SC 2433.

[xxxii] Hart, Supra note 11 at 135.

[xxxiii]372 US 335 (1963).

[xxxiv]Lakshminath, Supra note 17 at 134.

[xxxv] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

[xxxvi] Ronald Dworkin, Law’s Empire 228, (1st ed. 1988) Belknap Press.

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