Withdrawal of 'Consent' in Divorce by Mutual Consent : The Law

Justice H.L. Dattu
Supreme Court of India

The Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, has examined whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act. The Supreme Court was also called upon to decide whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties. The relevant extracts from the judgment are reproduced hereinbelow;

1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us. 

4) The issues that arise for our consideration and decision are as under: 

(a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.

(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 

5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-

13B. Divorce by mutual consent. - (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

...

8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.

9) In the case of Sureshta Devi (supra.), this Court took the view: "9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce." On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:

"13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226, this Court in passing reference, observed:

"16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition.

The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there." 

11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :-

"40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.

43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent."

13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi's case (supra).

14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and

c. The petition is not withdrawn by either party at any time before passing the decree;

15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent' would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge.

18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails.

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:

"25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties."

20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: "19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy." 21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.

22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time.

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view:

"17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses......."

24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].

25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

"Duties and Conduct of Advocates" : Supreme Court Explains

Justice Sathasivam
Supreme Court of India

The Supreme Court in a recent decision, O.P. Sharma v. High Court of Punjab & Haryana, had the occasion to examine the rules regarding Professional Conduct and etiquettes of advocates. The case in hand dealt with the contemptuous conduct of advocates before a magistrate, which resulted in suo moto initiation of contempt proceedings by the Punjab & Haryana High Court. The matter eventually reached the Supreme Court where the court has brought a quietus to the proceedings by accepting the unconditional apologies on behalf of the advocates. However, in doing so, the Supreme Court has culled out the principles regarding duties and conduct of advocates. The relevant extracts from the judgment are reproduced herein below;

Professional Conduct and Etiquette - Rules and decisions of this Court

11) In the light of the above scenario, before considering the fresh affidavits filed before this Court by the appellants- Advocates, let us recapitulate various earlier orders of this Court as to the duties of lawyer towards the Court and the Society being a member of the legal profession. 

12) The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation's administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. These include the names of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in the administration of justice.

13) Section I of Chapter-II, Part VI titled "Standards of Professional Conduct and Etiquette" of the Bar Council of India Rules specifies the duties of an advocate towards the Court which reads as under:

"Section I - Duty to the Court

1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.

2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.

3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.

5. An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.

6. An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.

7. An advocate shall not wear bands or gown in public places other than in courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.

8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee ", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation.

Provided that this rule shall not apply to such a member appearing as "amicus curiae" or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. 

9. An Advocate should not act or plead in any matter in which he is himself peculiarly interested.

Illustration

I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.

II. He should not accept a brief from a company of which he is Director.

10. An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings."

14) In the case of Daroga Singh and Others vs. B.K. Pandey, (2004) 5 SCC 26, one Additional District and Sessions Judge was attacked in a pre-planned and calculated manner in his courtroom and chamber by police officials for not passing an order they sought. This Court held that, "The Courts cannot be compelled to give "command orders". The act committed amounts to deliberate interference with the discharge of duty of a judicial officer by intimidation apart from scandalizing and lowering the dignity of the Court and interference with the administration of justice. The effect of such an act is not confined to a particular court or a district, or the State, it has the tendency to effect the entire judiciary in the country. It is a dangerous trend. Such a trend has to be curbed. If for passing judicial orders to the annoyance of the police the presiding officers of the Courts are to be assaulted and humiliated the judicial system in the country would collapse."

15) In R.D. Saxena vs. Balram Prasad Sharma, (2000) 7 SCC 264, this Court held as under:

"In our country, admittedly, a social duty is cast upon the legal profession to show the people beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country........"

16) In Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd., (1999) 1 SCC 37, this Court held that it is the solemn duty of every Court to proceed with judicial function during Court hours and no Court should yield to pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the Bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the interest of none.

17) In the case of Ajay Kumar Pandey, Advocate, In Re: , (1998) 7 SCC 248, the advocate was charged of criminal contempt of Court for the use of intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions. This Court held as under:

"The subordinate judiciary forms the very backbone of administration of justice. This Court would come down a heavy hand for preventing the judges of the subordinate judiciary or the High Court from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear."

18) In Chetak Construction Ltd. vs. Om Prakash & Ors., (1998) 4 SCC 577, this Court deprecated the practice of making allegations against the Judges and observed as under: "Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to "terrorize" or "intimidate" Judges with a view to "secure" orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it........"

Similar view has been reiterated in Radha Mohan Lal vs. Rajasthan High Court, (2003) 3 SCC 427.

19) Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary [vide D.C. Saxena vs. The Hon'ble Chief Justice of India, (1996) 5 SCC 216].

20) In the matter of In re: Vinay Chandra Mishra (the alleged contemner), (1995) 2 SCC 534, the contemner who was a senior advocate, President of the Bar and Chairman of the Bar Council of India, on being questioned by the Judge started to shout and said that no question could have been put to him and that he will get the High Court Judge transferred or see that impeachment motion is brought against him in Parliament. This Court while sentencing him to simple imprisonment for six weeks suspended him from practising as an advocate for a period of three years and laid down as follows:

"The contemner has obviously misunderstood his function both as a lawyer representing the interests of his client and as an officer of the court. Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has done distinct disservice to the litigants in general and to the profession of law and the administration of justice in particular."

21) In the case of Supreme Court Bar Association vs. Union of India & Anr., (1998) 4 SCC 409, a Constitution Bench of this Court overruled In re: Vinay Chandra Mishra (the alleged contemner) and held as under:

"The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "Professional misconduct" in a summary manner which can only be done under the procedure prescribed in the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act 1961 by suspending his licence to practice in a summary manner, while dealing with a case of contempt of court."

It also opined that:-

"An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for "professional misconduct", on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and taken appropriate action against such an advocate. Under Article 144 of the Constitution "all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act "in aid of the Supreme Court ". It must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice....." The Bench went on to say :-

".........There is no justification to assume that the Bar Council is would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record, records its findings about the conduct of an Advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the concerned Bar Council, appropriate action should be initiated by the concerned Bar Council in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette."

22) In M.B. & Sanghi, Advocate vs. High Court of Punjab & Haryana, (1991) 3 SCC 600, this Court took notice of the growing tendency amongst some of the Advocates of adopting a defiant attitude and casting aspersions having failed to persuade the Court to grant an order in the terms they expect. Holding the Advocates guilty of contempt, this Court observed as under:

"The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped fat the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary, Veiled threats, abrasive behavior, use of disrespectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned Judge but the entire institution. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system."

23) In the case of L.D. Jaikwal v. State of Uttar Pradesh, (1984) 3 SCC 405, it was held by this Court that acceptance of an apology from a contemnor should only be a matter of exception and not that of a rule and expressed its opinion as under:

"6. We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per the of his conscience on account of the fear of being scandalized and prosecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution, will be preferred by the litigants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts.

7. We have yet to come across a Judge who can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. A line has therefore to be drawn somewhere, some day, by someone. That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and with circumspection. We do not think that we can adopt an attitude of unmerited leniency at the cost of principle and at the expense of the Judge who has been scandalized. We are fully aware that it is not very difficult to show magnanimity when someone else is the victim rather than when oneself is the victim. To pursue a populist line of showing indulgence is not very difficult -- in fact it is more difficult to resist the temptation to do so rather than to adhere to the nail-studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty. We, therefore, cannot take a lenient or indulgent view of this matter. We dread the day when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace on him with impunity, if any of his orders, or the decision rendered by him, displeases any of the advocates, appearing in the matter. 24) In the case of R.K. Garg Advocate v. State of Himachal Pradesh, (1981) 3 SCC 166, where a lawyer hurled a shoe on the judicial officer which hit him on the shoulder, this Court opined that there is no doubt that the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.

25) In Lalit Mohan Das vs. Advocate General, Orissa & Another, AIR 1957 SC 250, this Court observed as under: "A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalizing the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; if brought into disrepute the whole administration of justice."

26) A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi vs. High Court of Punjab & Haryana, (1996) 7 SCC 99 and M.B. Sanghi, Advocate vs. High Court of Punjab & Haryana & Ors. (supra)].

...

30) A Court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice is ought to be maintained. All the functionaries, be it advocates, judges and the rest of the staff ought to act in accordance with morals and ethics.

Advocates Role and Ethical Standards:

31) An advocate's duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system. An advocate should be dignified in his dealings to the Court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

32) As a rule, an Advocate being a member of the legal profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for issue.

33) We hope and trust that the entire legal fraternity would set an example for other professionals by adhering to all the above-mentioned principles.

Supreme Court Quashes Land Allotment to Ganguly

Source : Express Buzz

The Supreme Court on Thursday quashed the land allotment to former Indian cricket captain Saurav Ganguly in the elite Salt Lake area of Kolkota. A Bench comprising Justice G S Singhvi and Justice Asok Kumar Ganguly passed a judgment in this regard and in the process set aside the land allotted to the cricketer. It directed him to return the land in two weeks time. It also directed the West Bengal Government to refund the Rs 20 lakh paid by him.

The land allotment is illegal and in violation of the Urban Land Ceiling Act, the Bench felt. Ganguly was allotted a piece of one acre land in the Salt Lake area in the year 2000 to start a school there.

However, many local residents and an NGO had raised a hue and cry saying that the land in the Salt Lake is very costly and what the cricketer paid was a pittance. Soon, several writ petitions were filed in the Calcutta High Court.

On February 17, 2009, the High Court, by its order said the allottee (Ganguly) has to pay the state government a sum of Rs 43 lakh failing which the lease deed shall be treated as invalid and possession of the land be taken back by the government. This order of the High Court was challenged before the apex court by the NGO and two others.

History of the case

It was on November 5, 2006 that the state government issued an advertisement earmarking a plot of land for setting up an integrated school from primary level to higher secondary level. It was stated that the school would basically be academic in nature, but with extra-curricular activities. Ganguly applied for the plot, it was allotted, but soon thereafter, he sought a bigger plot citing ICSE stipulations that the plot should be larger than 60 kathas.

Justice Ganguly said, “In this case, the plot was allotted no doubt, but everything was rushed through in hot haste, which is unreasonable, arbitrary and the High Court was wrong in upholding the same.”

Click here for a copy of the Judgment.

Guest Post : Judicial Precedents

Guest Post By : Mr. Vinay Sonpal, Advocate

As a matter of degree, the Courts tend to attach greater weight to their own previous decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is great because of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, which is Latin for "let the decision stand" i.e. to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. Judge made law via the cases upon which they decide is one of the oldest sources of law. This provides in the law consistency and predictability.

Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. A judicial precedent is a decision of the court used as a source for future decision making.

The phrase doctrine of precedent has two meanings; the phrase means merely that precedents are reported may be cited and will be followed by the courts. In the second, the strict meaning, the phrase means that precedents not only have great authority but must ( in certain circumstances) be followed. The practice of citing cases and of attaching weight to them is necessary to secure the certainty of law. The doctrine of judicial precedents broadly speaking implies that court is bound to follow decisions of its higher courts but may not be bound by decisions of courts of co-ordinate jurisdiction.

A ruling of a superior court is a binding law. It is not of scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myriad developments can not be imparted. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record.

The Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai and others, AIR 1976 SC 1455: 1976(3) SCC 832:

ARTICLE 141

The law laid down by Supreme Court of India is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by Supreme Court.

PERSUASIVE PRECEDENTS

Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which judges must follow whether they approve of it or not.

A persuasive precedent is one which the judges are under no obligation to follow and which they will take into consideration and to which they will attach such weight as it seem to them to deserve.

Authoritative precedent are legal sources of law, while persuasive precedents are merely historical.

PERSUASIVE PRECEDENTS:

Foreign judgments and obiter dicta are not binding upon courts, however they have persuasive value.

FOREIGN JUDGEMENTS:

Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, although not strictly bound to do so. In India Supreme Court may follow judgments of High Courts and High Courts may follow judgments of other High Court.

The English decisions referred to by Supreme Court are of courts of a country from which India has derived its jurisprudence and large part of Indian laws and in which the judgments were delivered by Judges held in high repute. Undoubtedly, none of these decisions are binding upon Supreme Court but they are authorities of high persuasive value to which Courts may legitimately turn for assistance. Whether the rule laid down in any of these cases can be applied by Courts must, however, be judged in the context of Indian own laws and legal procedure and the practical realities of litigation in India. Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC 263.

The Supreme Court is not bound by the dicta and authority of English cases.

Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, AIR 1954 SC 236:

Supreme Court although can be guided by English judgement but can not ignore the rulings of Supreme Court itself.

Samant N. Balakrishna, etc. v. George Fernandez and others etc. AIR 1969 SC 1201; 1969(3) SCC 238.

American cases relating to American constitution cannot be relied for the purpose of examining fundamental rights under Indian Constitution because of difference of social conditions and habits of people of both the countries. Pathumma and others v. State of Kerala and others, AIR 1978 SC 771: 1978(2) SCC 1:

The Courts have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. Courts can not allow its judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. Indian Courts no longer need the crutches of a foreign legal order. Indian courts have to build up their own jurisprudence. M.C. Mehta and another v. Union of India and others, AIR 1987 SC 1086: 1987(1) SCC 395:Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC 263.

American cases relating to American constitution cannot be relied for the purpose of examining fundamental right under Indian Constitution because of difference of social conditions and habits of people of both the countries. Pathumma and others v. State of Kerala and others, AIR 1978 SC 771, 1978(2) SCC 1.

Decisions of Privy Council or Federal Court are not binding on Supreme Court. State of Bihar v. Abdul Majid, AIR 1954 SC 245.

OTHER PERSUASIVE AUTHORITIES:

OBITER DICTA:

The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an orbiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

Where there is no direct authority in the form of decided cases, persuasive authority may be found in legal writings in textbooks and periodicals. In modern times many authors have been cited frequently in court, both by counsel and by judges in judgments.

EXTENT OF BINDING

Courts can use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. The judicial review is the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behavior. Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others. AIR 1990 SC 261; 1989(3) SCC 396.

As regards the question of punishment, what is awarded in one matter cannot be the guiding factor for punishment in another. Murray & Co. vs. Ashok Kumar Newatia and another, AIR 2000 SC 833; ;2000(2) SCC 367.

Whether a Division Bench decision is given in an appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench, and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same because it was hearing the proceeding in a writ petition. The rule of judicial precedent is a very salutary one and is aimed at achieving finality and homogeneity of judgments.

Ram Jivan v. Smt. Phoola (dead) by L.Rs. and others, AIR 1976 SC 844; 1976(1) SCC 852 .

Precedents which enunciate rules of law form the foundation of administration of justice. It has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of Apex Court. The reason of the rule, which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.

Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and others, AIR 1968 SC 372;70 Bom LR 73.

It is improper to overlook the opposing point of view even if it is expressed in minority judgment.

Deena alias Deen Dayal and others etc. v. Union of India and others etc., AIR 1983 SC 1155; 1983(4) SCC 645.

A precedent may be binding to one court but may be persuasive to other court.

Two courts of equal authority have power to overrule each others decision . Where a precedent is merely not followed the result is not that the later authority is substituted for the earlier, but that the two stand by each other conflicting with each other.

It is for the higher court which will in due time decide between the competing precedents, formally overruling one of them and sanctioning the other as good law. In the mean time matters remains at large ad the law uncertain.

When the High Courts have expressed different views one time or the other it would be singularly inappropriate to invoke the doctrine of stare decisis in a case of this kind where High Courts have differed and the matter has been brought to Supreme Court for resolving the said difference of opinion, and it is duty of the Apex Court, to construe the relevant clause and decide which of the two conflicting views should thereafter prevail. Therefore the argument based on the practice prevailing in the majority of the High Courts in this country can not be of much assistance. Tirumalachetti Rajaram v. Tirumalachetti Radha- krishnayya Chetty and others, AIR 1961 SC 1795.

A decision which has held field for a long time should not be disturbed in public interest.

India Electric Works Ltd. v. James Mantosh and another, AIR 1971 SC 2313;, 1971(1) SCC 24.

The decision holding the key for number of years but when the decision is plainly wrong and discloses the weakness in the reasoning, it is duty of the Court to overrule it.

M/s. Jetha Bai & Sons, Jew Town, Cochin. etc. etc. v. M/s. Sunderdas Rathenai etc., AIR 1988 SC 812; 1988(1) SCC 722.

Judgments of court are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes: their words are not to be interpreted as statutes. M/s. Amar Nath Om Prakash and others v. State of Punjab and others, AIR 1985 SC 218; 1985(1) SCC 345

It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete `law' declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasoning.

Commissioner of Income-tax v. M/s. Sun Engineering Works (P) Ltd., AIR 1993 SC 43;: 1992(4) SCC 363.

WHAT IS BINDING : THE RATIO DECIDENDI

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way).

The principles of Binding Precedent apply only when the facts must be sufficiently similar and the court must be more senior or on the same level.

It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent.

RATIO DECIDENDI - The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).

OBITER DICTUM - The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

A difficulty arises in that, although the judge will give reasons for his decision, he will not always say what the ratio decidendi is, and it is then up to a later judge to "elicit" the ratio of the case. There may, however, be disagreement over what the ratio is and there may be more than one ratio.

In a judgement delivered by a court, what part is a binding precedent is relevant so as to be precise as to what is ultimately biding proposition to other courts. What the court decides generally is ratio decidendi or rule of law which it is authority. As against persons not parties to suit or proceeding general rule of law i,e ratio decidendi is binding . The rule of law or ratio decidendi is that what is applied and acted upon by the Court . The rules of law or ratio decidendi are developed by courts and are thus creatures of courts. The ratio has to be developed by judges while deciding cases before them. Statement made by judges when giving lectures are statements made in extra judicial capacities and are therefore not binding. In the course of judgement a judge may make observations not precisely relevant to deicide the issue. These observations are obiter dicta and are having no binding authority but are none the less important. These obiter dicta are helpful to rationalize law only to suggest solutions to problems not yet decided by the Court. Any ratio decidendi are amenable to distinction on different facts and thus where the meaning thereof are widened , restricted, distinguished or explained , the latest interpretation of ratio decidendi in later cases becomes authority to these state of facts and in that sense. The rule of law based on hypothetical facts is mere obiter dicta and thus not binding.

Not infrequently it is difficult to find out what is the ratio decidendi in the judgement when several propositions are considered by the Court. In short ratio is general rule without which the case would have been decided otherwise.

The application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

The Regional Manager and another v. Pawan Kumar Dubey, AIR 1976 SC 1766:; 1976(3) SCC 334.

The general observations therein should be confined to the facts of those cases. Any general observation cannot apply in interpreting the provisions of an Act unless the Court has applied its mind to and analysed the provisions of that particular Act.

M/s. Raval and Co. v. K.G. Ramachandran and others, AIR 1974 SC 818; 1974(1) SCC 424.

ADVANTAGES AND DISADVANTAGES OF PRECEDENTS

ADVANTAGES

* There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and a person can plan accordingly.

* There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.

* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.

* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

* Judicial precedent is detailed. There is a wealth of cases to which to refer.

DISADVANTAGES:

* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.

* There may be a considerable waiting period for a case to come to court for a point to be decided.

* Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.

* There is far too much case law and it is too complex.

EXCEPTIONS TO BINDING PRECEDENT

If two judges Bench finds a judgement of a three judges Bench to be so incorrect that it can not be followed in any circumstances , keeping view of judicial discipline and propriety, the proper course is to refer the matter before it to another Bench of three judges. Pradip Chandra Parija v/s Pramod Chandra Patnaik AIR 2002 SC 296 ;(2002) 1 SCC 1 .

It is impermissible for a High Court to over rule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point . High Court can not question the correctness of the decision of the Supreme Court even though the point sought before the High Court. Suganthi Suresh Kumar v/s Jagdeeshan (2002) 2 SCC 420.

When a court differs from the decision of a co-ordinate bench of a Single Judge of High Court, the decision should be referred to Larger Bench. Ayyaswami Gounder and others v. Munnuswamy Gounder and others, AIR 1984 SC 1789: 1984(4) SCC 376.

If a division bench of a High Court differs from the view expressed by another division bench of the same court, it is appropriate that the matter is referred to a larger bench.Rajesh Kumar Verma v. State of Madhya Pradesh and others, AIR 1995 SC 1421: 1995(2) SCC 129; Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others, AIR 1991 SC 1893; 1989(3) SCC 396. Union of India and others v. Godfrey Philips India Ltd., AIR 1986 SC 806; 1985(4) SCC 369.

Division Bench of Supreme Court consisting of two Judges cannot over rule the decision of a Bench of two Judges as it would be an inappropriate.

Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231; 1985(1) SCC 275.

When there is a conflict of opinion that is when there is disagreement by one single judge with the decision of another single Judge it is appropriate that the appropriate course is to refer the matter to a larger bench for an authoritative decision.

Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and others, AIR 1990 SC 307; 1990 Supp. SCC 157.

One Full Bench decision cannot over rule another Full Bench Decision delivered by Judges of equal strength.

Shyamaraju Hegde v. U. Venkatesha Bhat and others, AIR 1987 SC 2323: 1987 Supp. SCC 321.

CIRCUMSTANCES DESTROYING OR WEAKENING THE BINDING FORCE OF PRECEDENTS.

1. ABROGATED DECISIONS: A decision ceases to be binding if a statute or statutory rule is inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court.

2. IGNORANCE OF STATUTE: A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of statute i.e. delegated legislation. Such decisions are per incuriam and not binding . The mere fact that the earlier court misconstrued a statute or ignored a rule of construction is no ground for impugning the authority of precedent. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court . Such decisions are also per incuriam. A court is not bound by its own decision that is in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on later courts. In this circumstances the rule is that where there are previous inconsistent decisions of its own , the court is free to follow either i.e. earlier or later.

To come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.

3 SUB SILENTIO: Precedents sub silentio or not argued: A decision passes sub silentio when the particular point of law involved in decision is not perceived by the court or present to its mind. When a decision is on point A upon which judgement is pronounced but there was another point B on which also court ought to have pronounced before deciding he issue in favour of the party, but that was not argued or considered by the Court. In such circumstances although point B was logically involved in the facts and although the case had a specific out come , the point B is said to pass sub silentio.[ Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A) ] . It is rightly said that an hundred precedent sub silentio are not material. Where a judgement is given without the losing parties having been represented , there is no assurance that all the relevant consideration have been brought to the notice of the court and consequently the decision ought not be regarded as absolute authority even if it does not fall within sub silentio rule. A precedent is not destroyed merely because it was badly argued , inadequately considered and fallaciously reasoned. Total absence of argument vitiates the precedent. A decision is an authority only for what it actually decides and not for what may logically or remotely follows from it. Decision on a question which has not been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990 SC 781: 1990(2) SCC 71: 1989 Supp. (1) SCR 510: 1989(2) Scale 982

When observation of the court on a question about validity of a statutory provision which was neither raised nor argued would not be a binding precedent.

Rajpur Ruda Meha and others v. State of Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677.

5. DISTINGUISHING: A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principles involved is the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them.

If a Court deems fit to follow a precedent of a superior court the proper course , in such a case, is to try to find out and follow the opinions expressed by larger benches of SuperiorCourt in the manner in which it had done this. The proper course for a Court , is to try to find out and follow the opinions expressed by larger benches of superior Court in preference to those expressed by smaller benches of the Court. If, however, the Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should say so giving reasons supporting its point of view.

Union of India and another v. K.S. Subramanian, AIR 1976 SC 2433;1976(3) SCC 677.

Even Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds itself unable to accept the earlier view, it shall be justified in deciding the matter in a different way.

Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC 623.

6. OVERRULING: A higher court can overrule a decision made in an earlier case by a lower court eg. the Court of Appeal can overrule an earlier High Court decision. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable.

The overruling is retrospectively except as regards matters that are res judicata or accounts that have been settled in the meantime.

The Apex Court or any superior court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience.

Manganlal Chhagganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, AIR 1974 SC 2009; 1974(2) SCC 402.

Decision of Full Bench of High Court passed after considering the local conditions and history should not be easily disturbed.

Nityananda Kar and another, etc. etc. v. State of Orissa and others, AIR 1991 SC 1134; 1991 Supp (2) SCC 516 .

7. REVERSING:.Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision.

8. CONCESSION:Concession made by counsel on a question of law is not binding as precedent.

The Government of Tamil Nadu and others v. Badrinath and others, AIR 1987 SC 2381: 1987(4) SCC 654; State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC 357.

9. CONSENT: When a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle.

Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38: 1989(1) SCC 101; 1989 Supp. (2) SCR 929.

10. NON SPEAKING ORDER: Non speaking order dismissing special leave petition would not constitute binding precedent as to the ratio of the High Court involved in the decision against which special leave petition to appeal was filed. Ajit Kumar Rath v/s State of Orissa (1999) 9 SCC 596.

11.SPECIFIC EXCLUSION:A judgment stating therein itself that the ratio laid down there in shall not be binding precedent or shall not be followed or relied upon , can not be treated as binding precedent. Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437.

12 .ON FACTS: If a judgment is rendered merely having regard to the fact situations obtaiing therein , the same could not be declaration of law within meaning of Article 141.UP State Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586 ;(2006)1 SCC 479;.

There is nothing in the Constitution which prevent the Supreme Court from the reversing its previous decision.

State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997: 1967(2) SCR 170.

An earlier decision cannot be departed unless there are extra-ordinary or special reasons for doing so.

Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur,AIR 1976 SC 410;: 1996(4) SCC 124.

Non-consideration for foreign decisions. The decision of Constitution Bench which held the field a quarter of century without challenge. Reconsideration on account of non-consideration of an American decision, not cited before the bench, is not called for.

Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi, AIR 1986 SC 293: 1986(1) SCC 445: ;India Electric Works Ltd. v. James Mantosh and another, AIR 1971 SC 2313; 1971(1) SCC 24.

Thus , one of the tools of an Advocate to persuade a Court on the point canvassed before it, that is to cite a binding precedent, is not always without limitations and it has to be an endevour of every advocate to perform an exercise to find out the ratio decidendi of a judgement and its relevancy to the proposition put before the court in the context of the facts of the case, before the same is quoted.

PRINCIPLES OF PROSPECTIVE OVERRULING

Prospective overruling implies that an earlier decision of the same issue shall not be disturbed till the date of the later judgement. It is resorted to mould relief claimed to meet the justice of the case. It means that relief though the Petitioner may be entitled to in law because of interpretation of the law made by the Supreme Court, the same shall not be applicable to past transactions. Frequently such situations arise in service matters or tax matters where in the person already appointed for a long time based on interpretation of a law by the Apex Court in its earlier judgment , but the same is overruled in the later judgement, and therefore the person already in public employment need not be directed to vacate the post or the tax already imposed and collected is not directed to be refunded.

In normal course, a law declared by supreme court is the law assumed to be from the date of inception and prospective overruling is only an exception when the Supreme Court it self make the applicability of the ration of the judgement prospectively to do complete justice to the parties or to avoid chaos.It is therefore necessary that if a law is to be made applicable prospectively , the same is required to be so declared in the judgement when it is delivered .M.A.Murthy v/s State of Karnataka (2003) 7 SCC 517. If supreme court does not exercise such discretion to hold that the law declared by it would operate only prospectively, High Court can not of its own do so. Sarwan Kumar v/s Madanlal Agarwal AIR 2003 SC 1475; (2003) 4 SCC 147.

The author can be contacted at vinaipal@yahoo.co.uk