Stare Decisis & Inevitable Anomaly

The concept of stare decisis is very fascinating. Arguments of equal weightage can be made for both its necessity as well as deviation from it. Let us begin by understanding what it actually means.

Stare decisis is a Latin phrase which means “stand by decided cases.”

stare decisis et non quieta movere” – “to stand by decisions and not to disturb what is settled”.

In plain words, it means a law which is settled should generally be adhered to. The courts subsequently should refrain from disturbing the settled position unless there is a compelling reason to do so. Such a position gives rise to a critical yet legitimate question; should we be stuck with the decision of the past rather than strive to arrive at a better one now? Although we are tempted to answer yes, judicial wisdom tilts towards the other side. The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. Consistency precludes confusion.

Although this doctrine needs extensive study, the subject matter of this write-up is one facet of it.

To quote the Supreme Court from Jaishri Laxmanrao Patil vs The Chief Minister (2021) 8 SCC 1:

The principle of stare decisis operates both vertically- in the sense that decisions of appellate courts in the superior in vertical hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally- in the sense that a larger bench formation ruling, would be binding and prevail upon the ruling of a smaller bench formation.

We are going to discuss the horizontal operation of this doctrine and a striking anomaly in it.

Let us consider a scenario. A 5-judge bench of the Supreme Court decides one question of law unanimously and declares the law. Let’s assume the position of the law adopted is A. The ratio is 5:0 in favor of A. Now, a 7-judge bench decides the same question of law and adopts a different position. Let the position of the law adopted be B here. The ratio is 4 in favor of B and 3 in favor of A.

By horizontal operation of the doctrine of stare decisis, the decision of a 7-judge bench is final. However, the view of 4 judges prevails over the view of 5 judges. Besides that, in total, the view of 4 judges takes supremacy over the view of 8 judges(5+3). It is certainly an anomaly. However, the apex court views it in a different manner in Trimurthi Fragrances (P) Ltd vs Govt.Of N.C.T Of Delhi AIR 2022 SC 4868.

“It is settled that the majority decision of a Bench of larger strength would prevail over the decision of a Bench of lesser strength, irrespective of the number of Judges constituting the majority.”

In other words, regardless of the ratio between majority and minority, the decision of a bench of larger strength will take supremacy. So, a 7-judge bench will always prevail over a 5-judge and a 9-judge will always prevail over a 7-judge, and so on, regardless of the number of Judges constituting the majority.

There are two major reasons for such a position.

1) Article 145(5) of The Indian Constitution. No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion. So, a majority opinion is considered to be the judgment of the bench and not just the majority judges.

2) To quote the apex court court(State Of Gujarat vs Gordhandas Keshavji Gandhi 1961): “…when a Full Bench consists of a larger number of Judges, then, the decision is not merely of a greater number of Judges, but it is one arising from out of the joint deliberations and discussions of a greater number of Judges and that this fact may give to the decision of a Full Bench consisting of a larger number of Judges a greater binding authority than that of a Full Bench consisting of a smaller number of Judges. “

So, a judgment is not just from the majority but an outcome of deliberation of all the judges constituting the bench.

However, there is one paradoxical situation here which if indeed happened will lead to perpetual uncertainty.

The situation: The 5 judges bench unanimously ruled in favour of horizontal operation of doctrine of stare decisis. So, accordingly, a larger bench decision can overule this decision. In other words, a 7 judge bench can overrule this decision regardless of the number of judges constituting majority. Let’s assume there is a 7 judge bench hears this case and rules against the 5 judge bench ‘s decision but in the ratio of 4:3 with still 3 favouring the 5 judge bench ‘s decision. However, according to the 5 judge, 7 judge bench ‘s prevail regardless of their ratio. So, the 7 judge decision will come into existence. But again, according to the 7 judge decision, the head count of the judges will prevail. So, the 5 judge will prevail. Besides that, in total, total judges favouring stare decisis will be 8(5+3) and majority of 7 judge will be 4. So, by decision of 7 judge, 5 judge decision will prevail but again by the decision of 5 judge 7 will prevail. It will circle in loop. We can only pray that such a situation never happens.

[Column by Arun Kumar A, a Law Student. Views are personal ]

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