DOCTRINE OF STARE DECISIS

DOCTRINE OF STARE DECISIS

SUBMITTED BY

KRISHNA DEV SHUKLA

ROLL NO.- 45

2ND SEMESTER

OF

FACULTY OF LAW

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

IN

2018-2019

UNDER THE GUIDANCE OF

DR. SHEFALI YADAV

DEAN, FACULTY OF LAW

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ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance
from many people and I am extremely privileged to have got this all along the completion
of my project. All that I have done is only due to such supervision and assistance and I
would not forget to thank them.

I respect and thank Mrs. SHEFALI YADAV (MENTOR), for providing me an

opportunity to do the project work and giving us all support and guidance which made
me complete the project duly. I am extremely thankful to her for providing such a nice
support and guidance, although he had busy schedule managing the corporate affairs.

I am thankful to and fortunate enough to get constant encouragement, support and

guidance from all Teaching staffs of Faculty of Law which helped us in successfully
completing our project work. Also, I would like to extend our sincere esteems to all staff
in laboratory for their timely support.

Krishna Dev Shukla

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INTRODUCTION
In its literal sense, “stare decisis” translates as “to stand by decided matters”. “Stare decisis” is an
abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to
stand by decisions and not to disturb settled matters.” In its most generic sense, this doctrine
states that the lower court is bound by the decision of the higher court, provided the lower court
falls within the provincial jurisdiction of that higher court. However, the decision by any other
higher court, which doesn’t have such jurisdiction, would only have persuasive authority. The
degree of persuasiveness is dependent upon various factors, which includes:
Nature of the other jurisdiction plays a very important role.
Then comes the degree of persuasiveness, which in turn depends upon the level of the court
which decided the earlier case in the other jurisdiction. The date on which such precedent was
set. This factor is important because there is an
assumption that more recent the case, the more reliable it will be, although this is not necessarily
so. In some rare occasions, the reputation of the judge who has decided the earlier case also
affects the degree of the persuasiveness of the authority.
The Indian position- The Supreme Court has correctly pointed out that the words of Article
141-“binding on all courts in India”, must be given a wide interpretation, but such as not to
include the Supreme
Court. The SC is not bound by its own judgments but is free to reconsider them in appropriate
cases as and when required.
However given the power to overrule a decision, what are the circumstances in which the power
should be exercised. In the case of I.T.O Tuticorin v. T.S.D. Nadar, it was held that “the
decisions of the court should not be overruled except under circumstances which compel them to
do so…every time the court overrules its previous decision, the confidence of the public in the
soundness of decision of this court is bound to be shaken…1
The general principal on which the doctrine of stare decisis is based may be stated as fallow:-
(1). Each got his absolutely pound by that decision of court about it.

1
V.D.Mahajan,jurisprudence and legal history56-58(5thed.2008)

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(2). To a certain extent hi Airport or bound by dire on decisions. In India the Supreme Court it
however northbound by its own earlier decision.
(3). Decision of one high good is not finding on any other High court and it has only a persuasive
value.
(4). A single bench Judge is bound by the decision of a division bench of the same high Court
but a division that is not bound to follow decision of a single bench (Judge) of the same High
court.

(1) OVER-RULED CASE ::

If a decision has been expressly over-ruled either by the same court which rendered it or by a
court exercising appellate jurisdiction, it can, of course, no longer be cited as a precedent. The
latest utterance of the court on any given point of law constitutes the authority which is not to be
departed from without cause. And the same is true of decisions over-ruled by necessary
implication in a subsequent case. But here it would be necessary to show beyond reasonable
cavil that the two authorities were really and necessarily inconsistent rulings on a state of facts
substantially identical. An exception, however, would probably be made in the case of a single
decision probably erroneous, which would over-rule a series of previous authorities or unsettle
the established principles of commercial law.

(2) TWO EXTREMES TO BE AVOIDED ::

"That doctrine" says Lovie, J., speaking of the rule under consideration, "though incapable of
being expressed by any sharp and rigid definition and therefore incapable of becoming an
institute of do positive law is among the most important of good government. But like all such
principles in its ideal it presents its medical and its extreme aspects and is approximately defined
by the negation of its extremes. The conservation that would make the institutions of to-day the
rule of tommorrow and thus cast society in the rigid molds of positive law in order to get rid of
the embarrassing but wholesome diversities of thought and practice that ensure to free, rational
and imperfect beings; and the radicalism that, in ignorance of the laws of human progress and
disregard of the rights of others, would lightly esteem all official precedents and general customs
that are not measured by its own idiosyncrasies; each of' these extremes always tends to be

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converted into the other and both stand rebuked in every volutes of our jurisprudence. And the
medial aspect of the doctrine stands everywhere revealed as the only proper one.

Stare Decisis In Civil Law System

Stare decisis are not usually a doctrine used in civil law systems, because it violates the principle
that only the legislature may make law. However, the civil law system does have jurisprudence
constant, which is similar to Stare decisis and dictates that the Court’s
decision condone a cohesive and predictable result. One of the distinguishing features of an
advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation
generally. It should, therefore, follow that a court could not decide purely prospective cases,
cases which do not govern the rights and disabilities of the parties to the cases. Courts have
regularly asserted that this principle is true, only applying the decision retroactively effect to the
parties in the immediate case. Yet,
occasionally, the Court did not apply its holding to the parties before it, and in a series of cases beginning
in the mid–1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not
exclusively —constitutional–criminal law decisions. The results have been confusing and unpredictable.
Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective
effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.” Statutory
and judge–made law have consequences, at least to the extent that people must rely on them in making
decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a
reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon
the old. In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by
later decisions. What the rule is to be, and indeed if there is to be a rule, in civil cases has been evenly
disputed in recent cases.
As was noted above, there is a line of civil cases, constitutional and non-constitutional, in which the Court
has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes
even to the prevailing party in the case. As in criminal cases, the creation of new law, through over
rulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial
prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two
cases raising the question when States are required to refund taxes collected under a statute that is
subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided

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CONCLUSION

While statutes and enactments of the legislature lay down the general rules to be applied in the
adjudication of disputes between parties, the final authority for the interpretation of those rules
are the courts. The doctrine of stare decisis makes the decisions of courts, usually the higher
forums, binding on subordinate courts in cases in which similar or identical questions of law are
raised before the court. The application of this doctrine ensures that there is uniformity and
certainty in the law. It saves time and efforts of judges and helps in preventing arbitrary action on
the part of judges. The doctrine thus ensures that at least over a certain period of time law remain
certain and people are able to conduct their business in accordance with the prevalent
interpretation of law. The doctrine is thus in the interest of public policy. In India, the doctrine is
constitutionally recognized in respect of the decisions of the Supreme Court which have been
declared under Article 141 to be binding on all courts and tribunals in the country. This of course
implies that even a single pronouncement of the Supreme Court would be binding on subordinate
courts. However, as held in the Bengal Immunity case, the decisions of the Supreme Court are
not binding on itself. It is only the reasons for deciding a case i.e., the ratio decidendi of the case
which are binding on future courts. There is no definite view as to how the ratio decidendi is to
be determined but there are a number of tests for its determination of which some are the
material facts test proposed by Prof. Goodhart and the Reversal Test Proposed by Wambaugh. In
order for the doctrine of stare decisis to be applicable, there are two basic prerequisites, first that
there must be authentic reporting of decisions of courts. The second requirement is an
established hierarchy of courts. The principle that the decisions of higher forums would be
binding on lower forums is referred to as vertical stare decisis while that the decisions of forums
would be binding on coordinate or coequal benches is known as horizontal stare decisis. The
great value of the doctrine of stare decisis is that it provides certainty. While the doctrine of stare
decisis is in the interest of public policy, there are number of disadvantages of the doctrine.
The supreme court in Supreme Court Advocate on record Association vs Union of India held at
the doctrine of stare decisis is not an inflexible rule and it has title evidence in constitutional
cases. the court observed that there is no doubt that the rule of stare decisis bring about
consistency and an conformity but at the same time in exercising its inherent power the supreme
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court should ask itself whether in the interest of public good or any other valid reason it is
necessary that its earlier decision should be revised.
In Krishna Swamy v. Union of India Mr Justice Ramaswamy of the supreme court spelt out the
basis philosophy and limits of the doctor of stare decisis and observed:
"The decision of this court is the last word on the interpretation of the constitution and the law of
the land under Art.141. The Judge is the living Oracle working in dry light of realism pouring
life and force into the dry bones of law to articulate the felt necessities of the time: The law laid
down by the court operates as a precedent and thus needs stability continuity and certainty.
Adherence to precents , that is usually wise policy for rule of unless there are complelling and
substantial reasons for its reconsideration in larger Public Interest.

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BIBLIOGRAPHY
Books
Paranjape N.V.