Precedents are not a prison house of bigotry

EXPERT EYE

Roscoe Pound, a leader of the sociological approach to law famously said, "The law must be stable but it must not be still." This highlights the controversy about the scope of precedents in law.

On the one hand, there must be precedents in order to have stability in law, particularly in fiscal law while on the other hand, if only precedents determine the law, the scope for new thinking gets hindered. The issue is to bring about a rapprochement between the two.

Article 141 of the Constitution makes the Supreme Court judgements a binding law of the land. The Court, in the case of Birla Corporation Ltd vs CCE, 2005(186)ELT266(SC), has held that "if we were to permit them (Revenue) to do so (deviate), the law will be in a state of confusion."

The real problem arises when Supreme Court or High Court judgements differ on the same issue. There are many such instances and some of them are listed here: (a) If public interest in fiscal policy is justiciable (b) In relation to promissory estoppel if delegated legislation is to be treated as executive or legislative action (c) If a factory built at a site is excisable (d) If rulings given by the Central Board of Excise and Customs under the statutorily empowering section are binding against a Supreme Court decision (e) If a decision given as a special case by Supreme Court is a precedent.

There are several controversial issues in respect of the application of precedents. I have tried to derive consensus on the following lines:

(i) The Supreme Court judgements are binding precedents for the same type of facts even if the Supreme Court says that they are only given as a special case (ii) They are not precedents if they are decisions for technical reasons and not on merit (iii) If two judgements differ without one superseding the other, it is a matter of choice (iv) High Court judgements are binding in their own jurisdiction and also in other states if there is no other judgement (v) But if several judgements differ, then lower authorities administering an all-India statute can choose the one suiting their facts and purpose (vi) They can also go by the view of the majority of the differing judgements (vii) Wrong judgement by a high court does not bind its successor (vii) Tribunal's judgements are not expositions of law but on the points decided by it, the lower authorities are bound by them (viii) In that particular case, it binds the department, which has to follow it even if there may be a general judgment of a high court to the contrary (ix) The department's own decisions also bind itself but only to an extent (x) A patently wrong decision cannot bind the department's hands to continue to give benefit to others (xi) Judgements given by courts in respect of one fiscal Act can be a precedent in other fiscal cases if they are similar (xii) And lastly, precedents are binding only in the context of the facts of each case.

"We cannot impart eternal value to the decision, exalting the doctrine of precedents into a prison house of bigotry," said Justice Krishna Iyer in Mumbai Kamghar Sabha vs Abdullabhai Faizullabhai.

smukher2000@yahoo.com