According to Sir John Salmond, A 'Precedent' is said to be a Judicial decision which contains its principles. The stated principle which thus forms its authoritative element is called the Ratio Decidendi. The concrete decision is thus binding between the parties, but it is the abstract Ratio Decidendi which alone has the force of law as regards the world at large."

The appellate system which has been structured on the common law pattern of the hierarchy of competent Courts, the doctrine of 'Precedents' can be considered as a vigilant omnipresence. The relevance of 'Precedent' as a guide to Judicial decision making remains as undisputed in the present day as it was more than a hundred and forty years ago when Lord Campbell called attention to the importance of the binding effect of the Ratio Decided in [Attorney General Vs The Dean & Cannons of Windsor, 11 E. R 472].

It is inconceivable that Judges will express their mind on the question of law otherwise than through a reasoned articulation which bears upon prior case law contained in the decisions of their predecessors. In India, as in any legal system with its roots in common law, Stare Decisis epitomizes a legal ideology that expresses a fighting faith in the assertion that the law should be founded on such values as continuity, and certainty. Underlying the Stare Decisis rationale is the pervasive, albeit uncritical, assumption that the Judicial process is concerned with an articulate and accurate enunciation of pre-existing law as opposed to the more arbitrary and inherently non-judicial process of legislative law-making.

'Precedents', also called Rulings, are searched and cited at the Bar and analysed and scrutinised in Courts, throughout the proceedings, so much as that, it has become a matter of routine in the legal system. Undoubtedly, however, this routine exercise plays a very important part in decision making process in the system of dispensation of Justice. It is safer to tread a tried path, is not the only consideration, but many others too, behind the sanction of the doctrine .of 'Precedents'.

An important feature of the administration of Justice is that 'like cases should be decided alike', to avoid any kind of discrimination in the matter of application of laws in similar cases, though may be decided by different Courts in any part of a State or the country. It is possible only through binding Judicial pronouncements.

Historical Growth Of The System Of Precedents In England

Initially began because medieval Judges considered themselves charged with the duty of ascertaining and declaring and enforcing contemporary customs and usages.

By the 18th Century, it became an integral part of the Common Law System. Lord Mansfield had consolidated and reaffirmed the Doctrine of Judicial Consistency, and declared – 'Law does not consist of particular cases, but of general principles'.

By the 19th Century, Lord Tenterden C.J. – "Decisions of our Predecessors, the Judges of former times, ought to be followed and adopted unless we can see very clearly that they are erroneous, for otherwise there will be no certainty in the administration of law."

Prof. Holdsworth in the 20th Century, "A certain element of conservation is needed, and the reservations with which the English System of case law is received, enable the Judges within fairly wide limits to apply to Old 'Precedents', a process of selection and rejection which brings the law into conformity with modern conditions. This is often expressed as the golden mean between too much flexibility and too much rigidity."

Historical Aspects Of The Judicial 'Precedent's In India

In ancient society, there was less disputes and there were few occasions to go to Courts. Local Courts like Shashan, Kula, Shreni and Puga were existing at that time. They used to decide the cases falling within their jurisdictions. There was little possibility of development of 'Doctine of Precedents' due to lack of adequate sources to keep the records. In the medieval times also there was less scope of 'Precedents'. In the absence of a well organized Judicial system, no Doctine of 'Precedents' develpoed in India as was in England. In the British Rule, the present theory of 'Precedents' started developing.

The Government of India Act, 1935 explicitly mentioned that the decision of Federal Courts and Privy Council will be binding on all other Courts in British India. Hence, from 18th Century till date 'Precedent' is a characteristic feature of our legal system.

As a matter of Public Policy, it is also important that there must be some degree of certainty in the laws so that people may conduct their affairs and plan their future accordingly. In [Ram Manohar Lohia & Ors Vs State of U.P. & Ors., AIR 1968 Allahabad 100], it has been observed that it is necessary to maintain Judicial uniformity and Judicial discipline. 'Precedents' maintain Judicial uniformity and Judicial discipline by which disharmony in the application of laws is shell avoided. The observations made in one of the English decisions clearly highlight the importance and use of 'Precedents'. The following observations were made by Lord Gardener LC in [Davis Vs. Johnson, (1978) 2 WLR 182]:

"Their Lordships regard the use of 'Precedent' as an Indispensable foundation, upon which, to decide, what is the law and its application to Individual cases. It atleast provides 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"

Broadly speaking, doctrine of 'Precedents', to a great extent advances the cause of 'Rule of Law', the ingredients of which as envisaged by Dicey have been construed to mean -

Thus the law affecting individual liberty ought to be reasonably certain or predictable; where law confers wide discretionary powers there should be adequate safeguards against their abuse; like should be treated alike and unfair discrimination must not be sanctioned by law; a person ought not to be deprived of his liberty status or any other substantial Interest unless he is given the opportunity of a fair hearing before an impartial tribunal. (De Smith -Constitutional and Administrative Law; 6th Edition; Page 19)

Generally the decisions or orders of higher authorities are binding on the lower authorities. For example the Judgment of Supreme Court is binding on all High Courts, subordinate Courts. The Judgment of High Court is binding all Lower Courts. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. But as regards the application of 'Precedents' of the High Courts, there is no direct Constitutional provision as Article 141 of Constitution of India. In [M/S East India Commercial Co Ltd & Anr. Vs Collector of Customs, AIR 1962 SC 1893], Supreme Court of India held that the law declared by the highest Court in the State is binding on authorities or tribunals under its superintendence.

So far decisions of High Courts are concerned, they have binding effect within the State and the decisions of the High Courts of other States have only persuasive force. The ratio of the decisions of other High Courts cannot be exalted to the status of a binding 'Precedent' nor can the Ratio decidendi of those decisions be perpetuated by invoking the Doctrine of Stare Decisis. The High Court while deciding a matter, if faced with decisions of its own High Court of co-equal number of Judges, taking irreconcilable view on the point, the proper course is to refer the matter to Larger Bench as this alone is considered to be appropriate.

The law enunciated by Full Bench of the Supreme Court in [Valliama Champaka Pillai Vs Sivathanu Pillai & Ors., (1979) 4 SCC 429] clearly laid down that the decision of one High Court is not a binding 'Precedent' on another High Court. The Court in that case, was seized of with the lis as to whether the decision of the erstwhile 'Travancore High Court' could be made a binding 'Precedent' on the 'Madras High Court' on the basis of the principle of Stare Decisis. The Apex Court had ruled definitively that such a decision can at best have persuasive value and such a decision does not enjoy the force of a binding 'Precedent' on the 'Madras High Court'.

In [Vodafone India Limited v/s Commissioner of Central Excise, 2015 (40) STR 422 (Bombay)] the High Court held that the decision of co-ordinate Bench is binding on the High Court of the same State. The High Court held that:

• An interpretation of a statutory provision and equally a misinterpretation by One Bench of the High Court would be binding on a co-ordinate Bench of that very High Court;
• The subsequent Bench cannot come to the opinion that a particular provision was misinterpreted and under that pretext seek to reinterpret it again;

If the subsequent Bench is of the view that the statutory provisions are misconstrued and/or misinterpreted, the only recourse available to it would be to refer it to a Larger Bench.

Thus the decision of one High Court is neither binding 'Precedent' for another High Court nor for Courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding 'Precedent' only in the State or territories on which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect.

By no amount of stretching of the Doctrine of Stare Decisis, can Judgments of one High Court be given the status of a binding 'Precedent' so far as other High Courts or Tribunal within their territorial jurisdiction are concerned. Any such attempt will go counter to the very Doctrine of Stare Decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof.

The decisions cannot have the force of binding 'Precedent' on other High Courts or on any subordinate Courts or Tribunals outside their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all Courts in the country by virtue of Article 141of the Constitution of India.

Conclusion
Article 141 of the Constitution of India establishes the binding nature of Supreme Court Judgments on all Courts within the territory of India. This provision ensures uniformity, consistency, and predictability in the interpretation and application of laws throughout the country. While there are exceptions to the binding nature, the general rule is that Lower Courts must follow the law declared by the Supreme Court. This principle strengthens the system of Judicial precedent and contributes to a fair and efficient legal system in India.

It is true that a provision mandating that the pronouncement of a High Court on questions of law shall bind Courts and authorities within the State is not found in the Constitution of India. But it is settled beyond doubt that the pronouncements of a High Court have the same authority within the State as those of the Supreme Court of India have throughout India.

The decision of one High Court is only persuasive in nature for the other High Courts that encourages the High Court to have different opinions on a similar situation or on the laws with part material. Moreover, there is no mechanism that assures the strict adherence and compliance of the law as laid down by the Supreme Court under Article 141 of Constitution of India.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
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