Author: Divyansh Morolia, I year of B.A.,LL.B. from NLIU Bhopal
ABSTRACT
This paper deals with a peculiar situation arising in the process of overruling a decision of a smaller bench by a larger bench. The requirement for overruling is that the decision of a bench can be overruled by a bench if it has more judges than the previous one, however, it does not take into account the division of the opinion of the individual judges. This sometimes gives rise to a situation wherein, a decision supported by a greater number of judges is considered to be overruled just because the majority opinion in the larger bench favoured the other decision which becomes the precedent. Under this situation, the very assumption of having the condition of a larger bench, i.e, a greater number of judges would be in a better condition to make a sound judgement, in the first place is refuted. A few judges have pointed out this anomaly in their judgements however, no step has been taken to rectify the same. This paper tries to analyse this situation with reference to related judgements where the same has been highlighted and, in the end, it proposes a possible solution for this inconsistency.
INTRODUCTION TO OVERRULING
The word ‘overrule’ is derived from two words- ‘over’, and ‘rule’. Going as per the etymological meaning, the word ‘over’ has its origin from the English word ‘ofer’ and it means ‘above’, or ‘higher in power or authority’[1], and the word ‘rule’ is derived from the French word ‘riuler’ and it means ‘to control, guide or direct’[2]. Overruling means “to overturn or set aside a precedent by expressly deciding that it should no longer be controlling law”[3].
Precedent is the judicial decision of a court of competent jurisdiction having a binding value. It is a predominant feature of common law to bind by the precedent as is evident from the maxim ‘stare decisis et non quita movere’which literally means to ‘stand by the precedent and not to disturb settled points’.[4] This principle is followed in the common law system to ensure and value certainty, however, in certain circumstances, the earlier decisions of the courts are overruled by a subsequent bench of the court, to correct any error that would have been made by the previous bench or to inculcate flexibility by adopting a change in the law with changing circumstances.
There are two doctrines concerning overruling, the ‘Blakckstonian theory’ and the ‘prospective overruling’. The ‘Blackstonian theory’, as stated in the commentaries of Sir William Blackstone[5], proposed that “the duty of the court was not to pronounce a new rule, but to maintain and expound the old one”. This theory advanced a retrospective overruling as it was believed that if a future judgement overturns a previous one, the latter decision does not create law; rather, it identifies the proper legal principle.
The ‘prospective overruling’ is based on the views of Justice Benjamin N. Cardozo and it originated in the case of Great Northern Railway v. Sunburst Oil & Ref. Co.[6] This doctrine bases its principle on overruling precedent without having a retrospective effect as it is believed that the laws of the land should keep up with the changes in society. India follows this doctrine of ‘prospective overruling’ and it was adopted for the first time in the case of I.C. Golaknath v. State of Punjab[7]. This case prospectively overruled the judgements in Shankari Prasad v. Union of India[8] and Sajjan Singh v. State of Rajasthan[9].
REQUIREMENT OF OVERRULING
Overruling is different from the practice of ‘distinguishing’ as in the latter, the facts of the case are proved to be different from the case of precedent to invoke an exception to the doctrine of stare decisis, however, overruling all together makes an authoritative change to the existing precedent. Overruling takes place when the precedent is authoritatively denied by a larger bench. Overruling can be exercised only when a larger bench denies the decision of a smaller bench and the size of the bench depends on the number of judges on that bench. Therefore, when two benches of the same court give conflicting decisions, the decision of the larger bench is considered to be valid and it forms the precedent.
Some alternatives of dealing with the issue wherein two benches of the same court give conflicting decisions have been analysed by Justice V. Nageswara Rao in his paper ‘Conflicting decisions of co-ordinate benches: problems and some solutions’[10]. One of the alternatives, as applied in some cases in the nineteenth-century English courts is to give the judge addressing similar issues in the subsequent cases a discretion to follow either of the judgements as precedent, depending on the needs of the case. This was applied by Sir Jessel in the case of Hampton v. Holman[11]. He stated while comparing two conflicting judgements that “they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes[12] is not sound law”. A similar stand was taken by Justice Kay in Miles v. Jarvis[13]. However, this approach cannot be applied as a rule as it would be in contravention to the very concept of certainty which forms the basis of the common law.
Another approach is to consider the decision of the earlier bench as the precedent by the virtue that it came earlier and that it should never have been departed from in the first place, however, this approach too would be flawed as it would not give the scope to the courts to correct their mistakes or to make changes in the laws with the changing times. A yet another approach can be to simply follow the decision that has been delivered later and ignore the previous one, however it tends to assume that the bench in the latter case cannot make an error and it can not be a per incuriam decision.
Amid these erroneous approaches, overruling by the larger bench is considered to be the best possible solution and is relied upon. The assumption is that the bench having more judges will be better able to make a sound judgement. However, this approach too is not an ideal one and has its own flaws.
FLAW IN THE CURRENT APPROACH OF OVERRULING
Mohammad Iqbal, a politician and philosopher, in the context of the rule of the majority in a democracy, has stated that “the heads are counted, but not weighed”[14]. The same applies to the overruling by a larger bench. What matters is the number of judges on the bench, but not the actual number of judges who supported that particular precedent or gave an opinion against it. A five-judge bench with a majority of 3:2 may overrule a unanimous judgement of a full bench of 3 judges, in that case, the opinion supported by the 3 judges in the majority of the latter bench would become the ratio decidendi and the judgement which is an aggregate is supported by 5 judges will end up becoming obiter-dictum.
A similar situation has arisen in the past when a 7 judge bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[15] with a majority of 5:2 overruled a unanimous 5 judge bench decision of SabhajitTewary v. Union of India[16]. This anomaly was highlighted by Justice M. Lokur in Supreme Court Advocates on Record Association v. Union of India[17], who stated that
“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?”
Furthermore, Justice Lokur went ahead to apprehend in the same judgement that
A similar apprehension was also laid in M/S Shanti Fragrances v. Union[18] wherein it was voiced that
“Let us consider a hypothetical example, where a 2 Judge Bench has laid down the law in a particular way. If nine other 2 Judge Benches have followed the first 2 Judge Bench decisions, is it open for three learned Judges to overrule all of the 2 Judge Benches i.e. twenty learned Judges? The obvious answer would be yes because the 3 Judge Bench is overruling the first 2 Judge Bench decision, which was merely followed by nine other 2 Judge Benches.”
This issue was also highlighted by Chief Justice Beaumont in NingappaRamappaKurbar and Another vs. Emperor[19] who stated that
Taking note of these comments by various judges in different cases, Justice R.F. Nariman in M/S Shanti Fragrances v. Union[20] of India has stated that
“Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned Judges speaking for a Bench of 7 learned Judges? This is a question which also needs to be addressed and answered”.
The practice of not taking into notice the division of individual opinions and just considering the strength of the bench goes against the very concept of relying on a larger bench. As mentioned earlier, the assumption behind following this model is that more judges will be better able to make a sound judgement, however, in the situations like the ones discussed in this section, even though more judges are in support of the other opinion, just based on the majority opinion of the larger bench, the precedent is decided.
It must be noted that in common law, certainty is the rule and flexibility is the exception. Following precedent serves the purpose of certainty and overruling provides for a scope of flexibility. The courts have the power of overruling earlier decisions for correcting previous errors or for changing the prevalent precedent to make it consistent with the changes in the society, however, this power should not be used casually. This point is also highlighted by Justice Jagannadhadas in Bengal Immunity Co. Ltd. v. State of Bihar[21] wherein he stated that “though the power to reconsider a prior decision does exist, the actual exercise of that power should be confined within narrow limits”. Similar views have been taken by judges in cases like Lt. Col. Khajoor Singh v. Union of India[22] and Ganga Sugar Corporation v. State of Uttar Pradesh[23].
Article 141[24] of the constitution states that “the law declared by the Supreme Court shall be binding on all the courts in the territory”. It has been held by the honourable Supreme Court in Keshav Mills v. CIT[25] that when the law declared by the supreme court is binding on all the other courts, it must be ensured that there is certainty and continuity in the interpretation of the law. The word ‘certain’, as defined by Calcutta High Court in Ashish v. Debrata Acharya[26] means “ascertained, clearly known and unambiguous”. As per the literal meaning, it means “ability to be firmly relied on to happen or be the case”[27]. This idea of allowing a larger bench just by the virtue of having more judges to overrule the decision of a smaller bench goes against this very concept of certainty as it becomes very easy for the subsequent larger bench to change the law, irrespective of the fact that the actual number of opinions might be more in the support of the other contention. This issue has been highlighted by various judges in their judgements, however, no steps have been yet taken to rectify this anomaly.
POSSIBLE SOLUTION
Addressing a similar issue relating to this kind of overruling,Justice Sanderson, Chief justice of Calcutta High Court, in Enatullah v. Kowsher Ali[28] proposed that a decision of full bench should only be allowed to be overruled by a special bench constituted by the chief justice.However, the Chief justice himself could not abide by this proposal as at a later instance, while considering the ruling of a full bench in Emperor v. Purshottam Ishwar[29], he didn’t refer it to any special bench. It might not be a feasible decision to constitute a special bench to overrule any decision delivered by a full bench, considering the huge amount of cases that have to be resolved by the court. Also, it must be kept in mind that this statement was made in a Calcutta High Court judgement of 1926 and the present strength of the Supreme Court is 34 and judges, these days, sit in benches of five, seven, nine and so on to adjudicate upon matters which further add on to the inapplicability of this contention in the present scenario, however, steps can be taken on similar lines.
It can be made a rule that a decision of a smaller bench can be overruled by a larger bench only if the aggregate number of judges in the bench of both the casessupporting the decision as laid in by the larger bench is more than or at least equal to the number of judges supporting the decision of the previous bench, i.e, a unanimous decision of a five-judge bench can be overruled by a seven-judge bench only if there are a minimum of six judges in the seven-judge bench forming the majority opinion. Likewise, it can be applied to a three-judge bench, nine-judge bench and so on. If a larger bench delivers a decision contradicting the previous decision of a smaller bench, however, if the number of judges supporting the majority opinion of the larger bench is not more than or equal to the number of judges supporting the previous decision, the decision of the larger bench should not be allowed to change the precedent set by the previous bench by overruling it, however, the decision can be considered to be an exception to the precedent and can be allowed to be applied in the instant case, as the facts of the instant case and the social conditions at that point of time would have affected the majority decision of the bench and the judgement in personam for that case can be delivered according to the majority opinion of that bench. Nevertheless, if the precedent of the previous bench has to be overruled, it should be referred to a further larger bench and overruling should only be allowed if the total number of judges favouring the stand taken by the judges in the larger bench outnumber the judges supporting the stand taken by the previous bench.
CONCLUSION
This approach will ensure that the overruling would take place only when, in effect,a majority of the judges are in support of the same and it would uphold the very purpose of overruling while safeguarding certainty. At the same time, it would also not give rise to rigidity and inflexibility as if the majority judges of a larger bench, considering the facts and situation around the instant case, find it appropriate to digress from the precedent laid by the smaller bench, they can to do so and in the case at hand, they can deliver the judgement in personam accordingly, even if the judges in favour of the majority opinion do not outnumber the ones that support the decision, previously delivered.
[1] ‘etymonline’, shttps://www.etymonline.com/word/overrule [2]ibid [3]All Answers ltd, 'Jurisprudence - The Doctrine of Prospective Overruling' (Lawteacher.net, December 2021)<https://www.lawteacher.net/free-law-essays/administrative-law/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.php?vref=1>accessed 3 December 2021 [4] Black's Law Dictionary 1084 (10th ed. 2015) [5]Blackstone, William, 1723-1780. The Commentaries of Sir William Blackstone, Knight, on the Laws and Constitution of England, 69 (15th Edn., 1809) [6]Great Northern Railway v. Sunburst Oil & Ref. Co., 287 US 358 (1932) [7]I.C. Golaknath v. State of Punjab, 1963 AIR 1643 [8]Shankari Prasad v. Union of India, 1951 AIR 458 [9]Sajjan Singh v. State of Rajasthan, 1965 AIR 845 [10]Rao, V. Nageswara. “CONFLICTING DECISIONS OF CO-ORDINATE BENCHES : PROBLEMS AND SOME SOLUTIONS.” Journal of the Indian Law Institute, vol. 32, no. 1, Indian Law Institute, 1990, pp. 49–67, http://www.jstor.org/stable/43951299. [11]Hampton v Holman. 1862 H42 [12] Hayes v. Hayes, 144 Cal. 625, (Cal. 1904) [13] Miles v. Jarvis, (1883) 24 Ch D 633. [14]Elst, Koenraad. Hindu dharma and the culture wars. (2019). New Delhi : Rupa. [15]Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 [16] Sabhajit Tewary v. Union of India, (1975) 1 SCC 485 [17]Supreme Court Advocates-on-Record Assn. (Recusal Matter) v. Union of India (Recusal Matter), (2016) 5 SCC 808 [18] Shanti Fragrances v. Union of India, (2010) 14 SCC 522 [19]Ningappa Ramappa Kurbar and Another vs. Emperor, (1941) 43 BOMLR 864 [20] Shanti Fragrances v. Union of India, (2010) 14 SCC 522 [21] Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661 [22] Lt. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532 [23] Ganga Sugar Corporation v. State of Uttar Pradesh, (1980) 1 SCC 223 [24] INDIAN CONST. art. 141 [25] Keshav Mills v. CIT, AIR 1965 SC 1636 [26]Ashish v. Debabrata Acharya, 2006 SCC OnLine Cal 347 [27] Noah Webster, The Merriam Webster Dictionery (the G. and C. Meriam Co) [28] Enatullah v. Kowsher Ali, (1926) 54 Cal 266 [29] Emperor v. Purshottam Ishwar, (1921) 45 Bom 834