Position in England

In England, the Court of Appeal has imposed upon its power of review of earlier precedents a limitation, subject to certain exceptions. The limitation thus accepted is that it is bound to follow its own decisions and those of courts of Co-ordinate jurisdiction, and the “full” Court is in the same position in this respect as a division Court consisting of three members.

The only exceptions to this rule are:

(1) the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow;

(2) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion stand with a decision of the House of Lords; and

(3) the Court is not bound to follow a decision of its own, if it is satisfied that the decision was given per incuriam, e.g., where a Statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Court[1].

A decision of the House of Lords upon a question of law is conclusive and binds the House in subsequent case. An erroneous decision of the House of Lords can be set right only by an Act of Parliament.[2] This limitation was repeated by Lord Wright in Radcliffe v. Ribble Motor Services Ltd., [1939] A.C. 215, 245.

Position in Australia

The High Court in Australia, which is the highest Court in that Commonwealth, has not adopted such a rigid rule. In the Tramways case, 1898 A.C. 375 the rule was thus laid down by Griffith, C.J. at p. 58:

“In my opinion, it is impossible to maintain an abstract proposition that Court is either legally or technically bound by previous decisions. Indeed, it may, in a proper case, be its duty to disregard them. But the rule should be applied with great caution, and — only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow;

not, I think, upon a mere suggestion that some or all of the members of the later Court might arrive at a different conclusion if the matter was res integra. Otherwise there would be grave danger of want of continuity in the interpretation of law”.

In the same case Barton, J. in the concluding paragraph of his judgment at p. 69 expressed himself thus:

“In conclusion, I would say that I never thought that it was not open to this Court to review its previous decisions upon good cause. The question is not whether the Court can do so, but whether it will, baying due regard to the need for continuity and consistency in the judicial decision. Changes in the number of appointed Justices can, I take it, never of themselves furnish a reason for review.

That the prior decision was that of little more than half their number might be urged with greater fairness, but it cannot be urged against Whybrow’s case which was decided by ,the whole Court then in existence save the Justice who as President’ of the Arbitration Court, was a party respondent to the order nisi. But the Court can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an overruling is that a decision is manifestly wrong and its continuance is injurious to the public interest”.

It is interesting to note that in that case all the Judges agreed that the decision in Whybrow’s case was to be treated as open to review (Per Griffith, C. J. at p. 58) although in the end, after reviewing the position afresh in the light of new arguments advanced before it, the Court came to the same conclusion.

Amalgamated Society of Engineers v. Adelaide Steamship Co., [1920] 28 C.L.R. 129 may also be referred to as an instance where the High Court of Australia departed from its previous decision.

Position in United States of America

In the United States of America there have been a considerable number of cases in which the Supreme Court has explicitly and avowedly overruled its prior decisions but there have been more instances in which the doctrines declared in prior cases have been in part evaded or ‘modified without explicit repudiation.[3]

In State of Washington v. Dawson & Co., 264 U.S. 646; 68 L.Ed. 219, Brandies, J. in his dissenting judgment said:

“The doctrine Of stare decision should not deter us from overruling that case and those which follow it, The decisions are recent ones. They have not been acquiesced in. They have not created a rule of property around which vested interests have clustered. They affect solely matters of a transitory nature. On the other hand, they affect seriously the lives of men, women and children, and the general welfare. Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the Courts have disregarded its admonition are many”.

In a foot-note to this judgment the learned Judge set out a large number of instances where the earlier decisions had been overruled.

In another dissenting judgment in David Burnet v. Coronado Oil & Gas Company, 285 U.S. 393; 76 L.Ed. 815 the same learned Judge, after quoting a passage from the judgment of Mr. Justice Lurton in Hertz v. Woodman, 218 U.S. 205, 212; 51 L.Ed. 1001, 1005 proceeded to say:

“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be bad by, legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.

The Court bows to the lessons of experience and the force of better reasoning recognising that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function“.

In his separate but concurring judgment in Mark Graves v.- People of the State of New York, 306 U.S. 466; 83 L. Ed. 927 Frankfurter, J. observed:

“Judicial exegesis is unavoidable with reference to an act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it”.

In this case two previous – decisions were expressly overruled and two more were impliedly overruled.

Position of Privy Council

We now come to the Privy Council which, prior to the commencement of our Constitution, was the highest Court of Appeal to hear appeals from the Indian High Courts.

In a case about Compensation to Civil Servants, L.R. 1929 A.C. 242; A.I.R. 1929 P.C. 84, 87, in repelling the contention that the Board was bound in law, and without examination, to follow an earlier decision whether they considered it right or wrong the Marquess of Reading said:

“Their Lordships are unable to hold that this proposition stated in such an extreme form is established. It may well be said that the Board would hesitate long before disturbing a solemn decision by a previous Board which raised an identical or even ,a similar issue for determination; ‘but for the proposition that the Board is, in all circumstances, bound to ‘follow a previous decision, as it were, blindfold, they are unable to discover any adequate authority. In other words, no inflexible rule, which falls in all circumstances to be applied has been laid down”.

In the Attorney-General of Ontario v. The Canada Temperance Federation, [1946] 50 C.W.N 535; A.I.R 1946 P.C. 88 Viscount Simon stated the practice of the Board in the following terms:

“Their Lordships do not doubt that in tendering humble advice to His Majesty, they are not absolutely bound by previous decisions of the Board, as is the House of Lords by its own judgments. In ecclesiastical appeals, for instance on more than one occasion the Board has tendered advice contrary to that given in a previous case, which further historical research has shown to have been wrong. But on constitutional questions it must be seldom indeed that the Board would depart from a previous decision which it may be assumed will have been acted upon both by Governments and subjects”.

Finally, in Phanindra Chandra Neogy v. The, King, L.R. 76 I.A. 10; 1939 Dom. L.R. 87 (P.C) Lord Simonds said at p. 88:

“Their Lordships then have before them a decision upon facts which in no material respect differ from those of the present case. Even so, it is, as they recognise, competent for them humbly to tender advice to His Majesty inconsistent with a previous decision, though it can only be in most exceptional circumstances that such a course should be taken……………. Recognising the possibility, they have heard full argument and, having done so, see no reason to doubt the validity of the reasoning or the correctness of the conclusion in Gill’s case, and they do not think it necessary to repeat what was said there”.

Bengal Immunity Co. Ltd. V. State of Bihar (1955)

The ‘Bengal immunity case’ is a very important case on the present subject. In the case, the Supreme Court referred above-mentioned rulings and attitudes of courts of different countries and then analysed the present question as follows-

• “In considering the applicability of the principles laid down in the decisions here in before mentioned, it should be borne in mind that the English decisions may well have been influenced by considerations which can no longer apply to the circumstances prevailing in India. The error, if any, of the Court of Appeal in England, may be corrected by the House of Lords or eventually by Parliament by a simple majority.

The mistakes, if any, made by the High Court of Australia, if not corrected by itself in a subsequent case, could be set right by the Privy Council when appeals were taken there or by the appropriate legislative authority. An error made by the House of Lords or the Privy Council can easily be rectified by Parliament by a simple majority by an amending statute.

• But in a country governed by a federal constitution, such as the United States of America and the Union of India are, it is by no means easy to amend the Constitution if an erroneous interpretation is put upon it by this Court. (See article 368 of our Constitution). An erroneous interpretation of the Constitution’ may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public wellbeing.

• The considerations adverted to in the decisions of the Supreme Court of America quoted above are, therefore, apposite and apply in full force in determining whether a previous decision of this Court should or should not be disregarded or overruled. There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.

• Article 141 which lays down that the law declared by this Court shall be binding on all Courts within the territory of India quite obviously refers to Courts other than this Court. The corresponding provision of the Government of India Act, 1935 also makes it clear that the Courts contemplated are the Subordinate Courts.

Reference

Bengal Immunity co. ltd. V. State of Bihar (1955)

[1] Young v. Bristol Aeroplane Co. Ltd., L.R. [1944] Q.B. 718 C.A. which, on appeal to the House of Lords, was approved by Viscount Simon in L.R. [1946] A.C. 163 atp.. 169

[2] Street Tramways v. London County Council, [1898] A.C. 376

[3] Willoughby-Constitution of the United States, 2nd Edn., Vol. 1, pp. 74- 75