Don't Be Overwhelmed By Precedents

This is the fifth post of the series 'Advice to Young Judges'. It advises them that Precedent are good guide, but they may not be worried about the same. 

RM Sahai J. with his son and family

Advice to Young Judges

Judges Have Difficult Job।। Act Without - Pressure, Fear, Expectation।। Decide Without Favour।। Adopt More Active Role।। Don't Be Overwhelmed By Precedents।। ।।

Common law is developed through precedents. A fundamental feature of common law system is acceptance of hierarchy of the courts and binding nature of precedents. A ruling of the higher court or of a larger bench is binding on the lower court or smaller bench of the same court. But one must not be overwhelmed by the precedents: they should not choke the pores of one’s intelligence. Let me tell you an incident.  

In the late 1970s, we had a case before RM Sahai J. My father was late in reaching the court. In the meantime, the other side placed a recent decision of the Supreme Court reported in Kailash Rai v. Jai Jai Ram AIR 1973 SC 893, claiming to cover the case. When my father wanted to place some decisions, the judge was not in the mood to listen and said,

“Well, here is a Supreme Court decision and must Mr. Chaudhary still argue and waste the time of the court.”

My father requested me to fetch Laxmi Chand v. Umkar Mal AIR 1929 All 351 from the Bar library that I did. He persuaded Sahai J. to see the first line of the judgement. The judge was again very caustic and observed how would a 1929 ruling be relevant to decide a point under Zamindari Abolition Act. But yielded to read the first line of the ruling that my father had refused to read openly. It read, 

“A ruling of any High Court is the greatest calamity that can befall on a subordinate court, as it chokes every pore of his intelligence.”

As soon as he read it, the judge’s face became tense. There were still 15 minutes left for the lunch, but he pushed his chair back, rose, opened the door himself, and went to his chamber. Everyone was shocked but after lunch, he came back on dot and smilingly said,

“Mr. Chaudhary, please argue. I will not let the ruling of the Supreme Court choke the pores of my intelligence.”

The judge heard my father at length with rapt attention and the judgement was reserved. Later, Sahai J. distinguished the Supreme Court decision and decided the case in our favour. It is reported in Prabhu Singh v. DDC 1979 All LJ 649: 1979 AWC 265: 1979 RD 158.

Sahai J. was elevated to the Supreme Court. There also, he was never overwhelmed by precedents. State of UP v. Synthetics and Chemicals Ltd (1991) 4 SCC 139 and N. Nagendra Rao v. State of AP AIR 1994 SC 2663 = (1994) 6 SCC 205 are examples of the same.

It is said that one-third of the cases decided by the lower courts are overruled by the immediate higher court. Had there been a court higher than our Supreme Court, one-third of its decisions would be overruled. This is not because the ruling is wrong but because of bona-fide difference of opinion among the judges. 

Never let a precedent of the higher court overwhelm you, never let it choke the pores of your intelligence. In the first half of the last century, Lord Atkin, one the greatest judge of all times, stated this in his own rhetorical way in United Australia Ltd. Vs. Barclays Bank LA 1941 AC 1 (at page 29), 

“When … [the] ghosts of the past stand in the path of justice clanking their medieval chains the proper course of the Judge is to pass through them undeterred.” 

If a precedent is indistinguishable or cannot be confined to the facts of that case, observe why it is not correct and leave it for the higher court to correct itself. Do it as a submission of the advocates rather than your opinion: higher court judges are touchy. After all, judges are here to do justice and not perpetuate injustice in the form of incorrect precedent.

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