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CHAPTER IV

ORIGIN OF DOCTRINE OF PRECEDENT AND DISSENT IN

INDIA

Judicial organ is a vital part of every progressive nation. The citizens look upon

the efficient legal system not only for the directions regarding their rights but also

duties and the precedent serves as aid to some set of guiding patterns in their

subsequent conduct. The term ‘precedent’ is nothing but an evolution of the

guidance and jurisdiction of past decision on the landmark cases in order to serve

as an aid to the society while dealing with the pros and cons of the Indian legal

system.1 Deep understanding of the past can be gained by a brief look towards

history. A clearer view and interpretation of present legal problems is possible, if

we debris to take notice of the history.2

A ‘precedent is defined as:

“a previous instance or case which is or may be taken as an

example of rule for subsequent cases, or by which some

similar act or circumstances may be supported or justified.”3

According to Gray,

“A precedent covers everything said or done, which

furnishes a rule for subsequent practices”.4

The term ‘Precedent’ generally means ‘some set arrangements navigating the

subsequent conduct’. It is the acknowledgement of the authority that makes a

1 Monika Bhaktal, “Evolution of Precedent in Indian Society: How, Where and by Whom?” 3.1 Int. Jour. of Law and Legal Juris. Studies, 308 at 310(2016). 2 David Crabtree, The importance of History, McKenzie Study Centre, An Institute Of Gutenberg College, Available at: <http://msc.gutenberg.edu/2001/02/the-importance-of- history/> accessed on May 20, 2018. 3 Available at : <https://www.oxfordlearnersdictionaries.com/definition/english/precedent> 4 John Gray, The Nature and Sources of Law, 121 (Columbia University Press, 1909).

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superior court verdict a judicial precedent. “A judicial precedent is judicial to

which authority has in some measures been attached”.5

Judicial precedent is applied in different legal systems through different principles.

The “Doctrine of Precedent” involves such principles. The researcher wants to

elaborate about the origin of the precedents rooting from the ancient law, to

medieval and also British rule, and till the present scene in the Supreme Court and

the High Courts.

4.1 EVOLUTION OF DOCTRINE OF PRECEDENT

Till 19th century, history indicates, that the roots of the ‘doctrine of precedent’ laid

in England. The application of the doctrine of precedent was a unique- feature of

the English legal system where precedents under certain conditions were reported

and followed by Courts. With some changes it is followed in many countries

including our own.6

Law in India has evolved from old religious beliefs and customary traditions. The

doctrine of precedent has come from the English law and is pari materia7to India.

Navigating through common law and democratic judicial system, finally law has

evolved to the present legal system. Though being a concept of the judicial

decisions and philosophies ‘precedent’ is considered as an inevitable aspect for

emergence of setting examples by following the ‘judge made laws’ in the

country.8

4.1.1 Ancient Period

Contrary to modern times, the evidence of existence of Doctrine of precedent is

cloudy in ancient times. Though there are texts which suggest, but with no

recordings of cases nothing concrete can be commented. The Law, in most part of

India was customary. As compared to the modern times, the legal complexity was

lesser in olden days. The ancient court kula was the tribal tribunal, Sherni was

5 G W Keeton, The Elementary Principles of Jurisprudence, 225(Pitman & Sons, London, 2nd edn.,1949). 6 G. N. Jha, Hindu law in its Sources, 21(The Indian Press Ltd., Allahabad, 2nd edn.,1930).

7 Latin term, ‘Of the same matter, on the same subject’.

8 Supra note 1 at 311.

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professional and Puga used to be the local one. All these ancient courts decided

most of the disputes orally. Therefore, the arbitrator or the judge was not required

to lay down novel points and show originality. On the basis of predecided

jurisdiction, they used to hear and decide the cases. Due to absence of detailed

account of cases, there is no clear picture of court’s working, though we find the

recording of cases with title and vague classification. The less developed doctrine

of precedent was the result of undeveloped reporting practices since there were no

printing machines.9

4.1.2 Medieval Period

Evidence of developed principles of precedent are not traced even in medieval

period. In order to decide cases and determine the rights, mohammedan rulers had

designated Qazis. Panchayats also worked actively for dispute resolution in rural

areas. After the establishment of the British rule, the concept of doctrine of

precedent became more developed gradually.

4.1.3 During the British Rule

After establishment of British rule in the country, the British administrators

inducted maulvis and Hindu pundits for smooth judicial functioning based on

personal law of the litigants, for a short period. A Supreme Court was set up at

Calcutta under the provisions of ‘Regulating Act’. Afterwards, establishment of

Supreme Court took place in different Presidency towns. After sometime,

provinces also had established High Courts. After codification of many

substantive laws, both the Supreme Court and the High Court applied the same for

meeting the ends of Justice, though both the adjudicatory organs were independent

to each other. A new era evolved, when the judicial committee of the Privy

Council became the final appellate tribunal, in the Indian Legal History.

Slowly and gradually an established hierarchy of the courts was apparent. The

Mofussil Courts (in districts) at the grassroot level and then the Presidency Courts

(in Presidency towns) and above these courts was the High Court. The Privy

9 Ibid.

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Council was the final appellate tribunal. The lower courts at different levels were

bound by the decisions of the immediate superior court. Therefore, in British India

the rulings of the Privy Council were authoritative and were followed strictly by

all levels of Courts in hierarchy. This definitely accelerated in bringing together

uniformity and certainty in law. Thus, the Doctrine of Precedent, in the modern

sense took its birth in India.10

4.1.4 Government of India Act, 1935

A Federal Court was set up in India, with the notification of the Government of

India Act, 1935. And indeed, it caused an interjection in the recognized ladder of

Courts at different levels. Under the mandate of the Government of India Act,

1935, the Federal Court verdicts had authoritative binding effect on all the lower

courts. Section 212of the Government of India Act, 1935, states:

“the law declared by federal court and by any judgment of

the Privy Council shall, so far as applicable, be recognized

as binding on and shall be followed by all the courts in

British India, and so far as respects the application and

interpretation of the Act or any Order in Council there

under or any matter with the respect to which the Federal

Legislature has power to make law in relation to the State,

in any Federal State.”11

4.1.5 Indian Constitution 1950

India gained independence in 1947 and thereafter the Indian Constitution 1950

was adopted. Under Article 124 of Constitution of India, the Supreme Court was

set up enshrined with final appellate powers in India also called the final

appellate tribunal. Similarly, High Courts were established in the constituent

States of the Indian Union. With the establishment of Supreme Court as the apex

judicial body, the Privy Council lost its authority. The Federal Court was also

10 Id. at 312. 11 Section 212 of Government of India Act, 1935.

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obliterated. In the hierarchy downwards, High Courts were constituted in states

and District Courts in districts respectively.

One of the primary task of the Supreme Court is to guard the fundamental rights

of the citizens and look after the disputes between various governments in the

country. The Supreme Court is the highest judicial forum of the Indian Union.

Indian Supreme Court enjoys original jurisdiction, writ jurisdiction, appellate

jurisdiction, advisory jurisdiction and revisory jurisdiction. The law interpreted

and declared by it, has authority on the hierarchical ladder of Courts downwards

in the country. While being the highest judicial forum, the Supreme Court,

vested with power under constitutional mandate of Article 141 to declare a

binding law for the whole country, thereby fulfilling its eminent role of legal

mentor of the nation. Article 141 of Constitution of India states that, “The Law

declared by the Supreme Court shall be binding on all courts within the territory

of the India.” By virtue of Article 141, the Supreme Court shall not be bound by

its own decisions,12except to the extent of that a smaller Bench is bound by the

decisions of a larger Bench and that of a Co-equal Bench.13

Precedents have enormous authority in the common law system. The principle of

Stare decisis is its excellent feature. According to Dowrick,14 “The principle of

stare decisis is a precipitate of the notion of legal justice”.15 In other words, it is

the principle that judicial decisions have a binding character.

In case Indra Shawnay v. U.O.I,16 it was held that, “the doctrine of the Stare

decisis is not applicable in the Supreme Court. However, in practice, the previous

decisions of the court command great value in the Court”. It has been also held

that long standing legal positions should not be shaken.

12 I.T. Commissioner, Madras v. R.M.C. Pillai, AIR 1997 SC 489 at 496. 13 Indian Oil Corporation v. Municipal Corporation, AIR 1995 SC 1490. 14 per se referred in Vidyacharan Shukla v. KhubchandBaghel And Others, AIR 1964 SC 1099. 15 F.E.Dowrick, Justice According to the English Common lawyers,27(Buttersworth, London, 1961) 16 AIR 1993 SC 447.

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In case Manganese Ore (India) v. R. Asst. Commr.,17 the Supreme Court has

observed that “the doctrine of stare decisis is a very important principle of

precedent which cannot be departed from unless there are inevitable or special

reasons to do so”. In I.T. Officer, Tuticorin v. T.S.D. Nadar & others,18 it was

held that, “it is only when the Supreme Court of India finds itself not being able to

accent the earlier view that it would be justified in deciding the case before it in a

different way”. Thus, if any decision is found inaccurate to the degree that it may

disturb the general welfare of the society, the Supreme Court reconsiders it. But

the Supreme Court does not ordinarily depart from its previous decision except in

the rare above mentioned case.

In Sajjan Singh v. State of Rajasthan,19 Chief Justice Gajendragadkar observed

that:

“It is true that the Constitution does not place any

restriction on our power to review our earlier decisions or

even to depart from them and there can be no doubt that in

matters relating to the decisions of constitutional points

which have a significant impact on the fundamental rights

of citizens, we would be prepared to review our earlier

decisions in the interest of the public good. The doctrine of

the stare decisis may not strictly apply in this context and

no one can dispute the position that the said doctrine

should not be permitted to perpetuate erroneous decisions

pronounced by this Court would be final, cannot be

ignored and unless considerations of a substantial and

compelling character make it necessary to do so, we

should be slow to doubt the correctness of previous

decisions or to depart from them.”20

17 AIR 1976 SC 410, 413. 18

AIR 1968 SC 623. 19

AIR 1965 SC 845. 20

AIR 1965 SC 845 at 865, per J. Gajendragadkar, Available at : https://indiankanoon.org/doc/1629830/ (accessed on May 21, 2018).

133

The test to assess this situation poses this question, how to determine that the

previously decided case should be opened and relooked? The answer to this very

question would depend on the nature of the erroneous view in the earlier decision,

its impact on the public good and the validity and compelling character of the

considerations urged in support of the contrary view. One more important factor

which should be taken in account is whether the said decision has been followed

in large number of cases.

Again in Bengal Immunity Company Ltd. v. State of Bihar,21it was reiterated when

Justice Das, the acting C.J. observed:

“References is made to the doctrine of finality of judicial

decisions and is pressed upon us that we should not reverse

our previous decisions except in cases where a material

provisions of law has been overlooked or where the

decisions has proceeded upon the mistaken assumption of

the continuance of a repealed or expired statute and that

we should not differ from a previous decisions merely

because a contrary view appear to us to be preferable. It is

needless for us to say that we should not lightly dissent

from a previous pronouncement of this court. Sometimes

frivolous attempts may be made to question our previous

decisions, but if the reasons on which our decisions are

founded are sound, they will by themselves be sufficient

safeguard against such frivolous attempts. Further, the

doctrine of stare decisis has hardly any application to an

isolated and stray decision of the court very recently made

and not followed by a series of decisions based thereon.

The problem before us does not involve overruling a series

of decisions but only involve the question as to whether we

should approve or disapprove, follow or overrule a very

21 AIR 1955 SC 661.

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recent previous decision as a precedent. In this case, the

doctrine of stare decisis is not a flexible rule of law and

cannot be permitted to perpetuate our errors to the

detriment, general welfare of the public or a considerable

section thereof.”22

In case State of West Bengal v. Corporation of Calcutta,23the Supreme Court

approved this statement and further stated:

“If the aforesaid rule of construction accepted by this

Court is inconsistent with the legal philosophy of our

Constitution, it is our duty to correct ourselves and lay

down the right rule. In constitutional matters which affect

the evolution of our policy, we must more readily do so

than in other branches of law, as perpetuations of a mistake

will be harmful to public interest. While continuity and

consistency are conducive to the smooth evolution of the

rule of law, hesitancy to set right deviation will retard its

growth”.24

4.1.6 Applicability of Law declared by High Court

On similar pattern of the apex Court of India, the decisions rendered by a High

Court at State level, has authority and binding character and it is obligatory for the

subordinate courts at all levels to follow them within its jurisdiction. However, the

subordinate courts and tribunals in jurisdiction of another High Court may look

upon the decision but not obligatory for them to follow it. In M. Abdul Sattar v.

H.A. Hakeem,25it was held that, “if such decision is in conflict with any decisions

of the High court in whose jurisdiction that court is situated, it has no value and

the decision of same state High court is binding on the court.”

22

AIR 1955 SC 661 at 1084, Available at : https://indiankanoon.org/doc/1629830/ (accessed on May 21, 2018). 23

AIR 1967 SC 997. 24

AIR 1967 SC 997. 25 AIR 1976 AP 84.

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In High Courts different courts have their different rules with respect to hearing of

appeals. However, normally bench comprising single judge hears first appeal

whereas bench with two judges entertains murder appeals, special reference

appeals, letters patent appeals, etc. Larger benches considers appeals involving

substantive matter of law.

Three or more judges constitute a full bench. Two judges bench is referred as

division bench. The smallest bench is comprised of a single judge. The decisions

of larger bench are binding on a smaller or co-ordinate Bench. In case, a single

judge bench or a division bench disagree with the viewpoint of bench of

coordinate jurisdiction, the matter in question is referred to a larger Bench for

appropriate decision.26 To summarize, when a bench of a High Court pronounce a

decision on an important question of law, normally it should be followed by other

benches unless they have reasons to differ from it. If any difference of opinion

exists then the question is referred to a larger bench for reconsideration of the

matter. 27

The Section 212 of the Government of India Act, 1935 made the decisions of the

Federal Court binding on subordinate courts and it continued to do so even after

1950 by virtue of the provision of Article 225 of the Indian Constitution, 1950.

However, they are binding only so long they have not been overruled by the

Supreme Court.

In contrast the pre-constitution (1950) decisions of the Privy Council are binding

on all the courts unless they are in conflict with any decision of the Supreme

Court. Article 395 of the Indian Constitution provides the saving clause which

saves the Abolition of Privy Council Jurisdiction Act, 1949, 28 and makes the

decision of the Privy Council authoritative. Section 8 of the Act reads as,

“Any order of his Majesty in Council made on an Indian

appeal or petition whether before, on or after the appointed

day, shall for all purposes have effects, not only as an order

26 S.K. Bhathija v. Collector Thane, AIR 1991 SC 1893. 27 Jaisri v. Rajdewan, AIR 1962 SC 83. 28 (Act 5 of 1949).

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of Majesty in Council, but also as if it were an order or

decree made by the Federal Court in the exercise of the

jurisdiction conferred by this Act.”29

Furthermore, Article 225 of the Indian Constitution states that, “subject to the

provisions of this Constitution and to the provision of any law of the appropriate

Legislature, the law administered in any existing High Court shall be the same as

immediately before the commencement of this Constitution”. The expression “law

administered” includes case laws also. Thus, according to these provisions, the

decisions of the Privy Council given before 1949 continues to have a binding

effect on all High Courts unless they have been overruled by the Supreme Court.

However, in the event there is any conflict between a pre-constitution Privy

Council decision and Federal Court decision, the decision of Privy Council would

prevail. Nevertheless, the Supreme Court can overrule any pre-constitution Privy

Council decisions and in that case it would lose its authority.30

As held in Bina Devi v. Chaturi Devi,31 the term “Law declared’ means not only

the ratio decidendi of a decision but it also includes an obiter dictum provided it is

upon a point raised and argued”. The application of the doctrine get strong by the

ratio decidendi of the case. Thus, it is pertinent to examine the meaning of ratio

decidendi and how it is determined.

Ratio decidendi and Obiter dictum

There are situations wherein the facts of a case involve discussion and elucidation

on certain points of law which gives rise to authoritative interpretation or

application of law. This elucidation is based upon logical set of factors that are

developed on basis of certain principles which are specific to a given situation at

hand. After extraction of important facts and removing the unimportant elements,

the legal principles are finally inferred. The legal principle that comes out, is not

applicable only to that case, but to other cases also which are similar to the

decided cases. These principle are meant to be ratio decidendi. The issues which

29 Section 8, Abolition of Privy Council Jurisdiction Act, 1949. 30 Indian Oil Corporation v. Municipal Corporation, AIR 1995 SC 148. 31 AIR 1953 SC 613.

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do not need determination of any general principles are answered on the basis of

the factual situation of the relevant case in which no principles of general

application are laid down. These are mostly observations of the bench while

developing the principles for elucidation of ratio decidendi. These observations

are obiter dictum. Since the ratio decidendi of the judgement is the rationale to

reach the decision, it carries the binding effect and works as a precedent.

As observed from the above discussion, phenomenal creative function is

performed by the superior Courts for marking new legal heights. Therefore,

Superior Judiciary is performing extremely important function in multiple fields

of social importance. But some techniques or method will have to be evolved to

save the lawyers and the judges from the labour and wastage of the time in finding

out the law from the rapidly multiplying volumes of reports and the constant

danger of overlooking authorities.

4.2 MEANING OF JUDICIAL DISSENT

“If all mankind, minus one, were of one opinion, and only

one person was of the contrary opinion, mankind would no

more be justified in silencing that one person, then he, if he

had the power, would be justified in silencing mankind.”32

The above statement of John Stuart Mill brings to light a noteworthy concept,

commonly referred to as 'dissent'. Dissent is the outcome of the intellectual

thought process of an individual who disagree in opinion with the world. The

statement further suggests that this visionary and inquisitive opinion should not be

rebuked, as it will interrupt the new path of progress. According to John Hoffman,

“if the opinion is vague then humanity again loses, because if the opinion is false

it will be shown to be so, but its expression is useful, for it forces us to restate the

32

John Stuart Mill (1806-1873) was a British philosopher, political economist and civil servant, Available at: <https://en.wikipedia.org/wiki/John_Stuart_Mill> (accessed on May, 21, 2018).

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reasons for our beliefs.”33In conclusion, humanity benefits when a person is free

to express himself, even if he finds himself alone in asserting his opinion.

It would be important to study the origin and growth of writing Judicial dissent in

courts with the historical account and the reasons of its development. Dissent is “a

disagreement with a majority opinion especially among judge”.34The English law

provided the favourable environment to dissenting opinion to lay its roots and

grow. Julia Laffranque states, “Such a style of decision making was initially

adopted in the United States of America but by the end of 18th century the

decision making 'seriatim' was abandoned, and under Chief Justice Marshall the

tradition of 'opinion of the court' was started.”35 While making of final judgement,

the opinion of the judges who were designated for the particular bench, is

separately concluded as either majority or minority opinion. Judges who

maintained a dissenting opinion or concurring opinion could add to the opinion of

the court. Their dissenting opinion or concurring opinion, with forceful majority

view was also published.36

The dissenting opinions got recognition as vital part of the decision-making

process in common law countries. In order to upgrade the independence of judges,

the differing viewpoints, whether majority or minority, were recognized. Not only

this, common law countries gave way to publication of such opinions openly, for

improved judicial administration.37Therefore, Nadelmann opines that, “the ability

of a judge to publish an opinion which rejects the reasoning of his or her

colleagues and explains how the majority has fallen into error is certainly one of

the key indicators of a healthy and independent judicial system.”38

33 John Hoffman & Paul Graham, Introduction to Political Theory, 43 (Pearson Education, 2007). 34 Blacks Law Dictionary, 541 (West A. Thomson Reuters Business, 9thedn., 2009). 35 Julia Laffranque, “Dissenting opinion and Judicial independence”, 8 Jur. Int'l., 162 at 164 (2003). 36

Yogesh Pratap Singh, Judicial Dissent and Indian Supreme Court, 20(Thomson Reuters,Gurgaon,1stedn., 2018). 37 A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe,123(Oxford University Press, 2000). 38 Kurt H. Nadelmann, “The Judicial Dissent: Publication v. Secrecy”, 8.4 Amer. Jour. of Comp. L, 415 at 421 (1959).

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India's triumph over the British Empire is largely a testimony of the people's

power of dissent set in motion by Mahatma Gandhiji. Gandhiji contended, in his

defence, at the great Ahmedabad trial:39

“[A]ffection cannot be manufactured or regulated by law.

If one has no affection for a person or system, one should

be free to give the fullest expression to his disaffection, so

long as he does not contemplate, promote or incite to

violence. But I hold it to be a virtue to be disaffected

towards a government which in its totality has done more

harm to India than any previous system. India is less manly

under the British rule than she ever was before. Holding

such a belief, I consider it to be sin to have affection for the

system.”40

Before independence when millions of Indians were killed, a single Gandhi was a

stronger one man boundary force than the Indian army on other borders, as Lord

Mountbatten had asked. Why? Because the dynamic dissent, with soul's infinite

strength, that Gandhiji expressed against communal lawlessness and, earlier,

against British satanic law, proved the proposition that there is a unlimited power

for human justice in each one of us which can moderate the violent 'lawlessness'

of the law and of life by the non-violent use of soul force.41Gandhiji in wider

perspective explained the duty to dissent:

“We must refuse to wait for the wrong to be righted till the

wrong doer has been roused to a sense of his iniquity. We

must not for fear for ourselves or others having so suffer

remain participatory in it. But we must combat the wrong

by ceasing to assist the wrong doer directly or indirectly”.42

39 V. R. Krishna Iyer, Justice At Crossroads, 187(Deep & Deep Publications, Delhi, 1992). 40 M. K. Gandhi, The Law &The Lawyers,(ULP-An Imprint of LexisNexis, 1stedn.,2016). 41 Supra note 39 at 188. 42 M. K. Gandhi, “The Law of Suffering”, Young India, June 16, 1920.

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4.3 The History of Judicial Dissent in India

Through an article published by Law Quarterly Review, a distinguished Judge of

the Supreme Court of India, Sir Vivian Bose states that:

“[T]he only certainty about the migration of the common

law of England into India is that the English brought it,

their judges administered it and that it infiltrated deep into

the laws of this country and has, to some extent, moulded

its thoughts and customs. The common law is thus so

inextricably intertwined with and has become an integral

part of the Indian legal and judicial system.”43

Now, the foundation of judicial dissent in India will be pondered upon by the

researcher with emphasis upon judicial dissent in the Supreme Court at Calcutta

and other Presidency Court, judicial dissent in Federal Court of India, judicial

dissent in Privy Council and judicial dissent in Supreme Court of India.44

4.3.1 Judicial Dissent in the Supreme Court of Calcutta & Other Presidency

Courts

Due to opposition from committee of secrecy, 45 against the then legal

administration system, drafting of The Regulating Act of 1773 was ordered by the

King of England. This promulgation navigated towards setting up of the Supreme

Court of Judicature at Calcutta by the Royal Charter. The Letters of Patent was

issued on 26 March 1774 to establish the Supreme Court of Judicature at Calcutta.

This Supreme Court had the power as a court of record, with full power and

authority to hear and determine all complaints for any crimes and to entertain,

hear and determine any suits or actions against any of His Majesty's subjects in

Bengal, Bihar and Orissa. 46 Thereafter, King George III got established the

43“ Quoted by Fali S. Nariman, India's Legal System: Can it be saved?, 26 (Penguin Books, 2006)”. 44

Supra note 36 at 60. 45 M.P.Jain, Outlines Of Indian Legal And Constitutional History, 51(Lexis Nexis Buttersworth Wadhwa, Nagpur, 6thedn., 2008). 46 History of Evolution of Judiciary, Available at: <http://supremecourtofindia.nic.in/supct/scm/m2.pdf>

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Supreme Court at Bombay47 and Madras48 too, on 26 December 1800 and on 8

December 1823 respectively.

Reporting of law in India developed after the creation of the Supreme Court of

Calcutta. The two necessary conditions related tolaw of principle of stare decisis

are firstly, the judgement recording and reporting ; secondly the hierarchical

system of courts. Earlier, there was no organised system of law reporting.

Practising leading lawyers and judges made efforts for reporting, periodically.

Their unexpressed purpose was to “to prevent much contrariety of judgement and

to produce uniformity of decision.” Their underlying fear was regarding the

conflict of decisions on vital legal principle.49 In this connection, B.K. Acharya

observed that:

“The judges of the old Supreme Court made no special

effort to secure good reporting. Almost from the earliest

institution of the Supreme Courts the decisions of those

courts were left to the unassisted efforts to private

reporters. Reports were no doubt published some of them

good, some of them of an inferior quality, and there were

periods for which no report at all existed and during which

many valuable decisions passed altogether unreported.”50

Morton’s Report, published in 1841, by Calcutta Supreme Court pertains to be one

such report. This first report covered the data of considerably a long period from

1774 to 1841.The manuscript notes of Justice Hyde and Chief Justice, Sir R.

Chambers, and some more Judges of the Supreme Court provided maximum

volume to the complete compilation. Apart from Morton's Report, there were

other reports, such as, Begnell's Reports, 1830-31, of which only one volume

47“ The Chief Justice Sir Erskine Perry made two collections: one of them was of illustrate the Oriental life and the application of English law to India decided by the Bombay Supreme Court (Perry's Oriental Cases); the other was in the manuscript from which was full and verbatim published in the second volume of Morley's Digest.” 48 The only collection of cases for the Supreme Court of Madras was published in three volumes by Chief Justice Sir Thomas Strange. 49 Supra note 45 at 51. 50 B.K. Acharya, Codification in British India, 162 (S.K. Banerji & Sons, Calcutta 1914).

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appeared. Of Fulton's Reports also, single volume appeared in 1845. Montriou's

Report appeared in 1846, where the compilation of selected cases were copied

from the Morton's Reports. Some more worth mentioning reports are George

Taylor's Report of Cases, 1847-1848, Gasper's Commercial Cases, 1851-1860 and

Boulnois Reports from 1853 to 1859 which appeared in two volumes. Taylor and

Bell's Reports and the three volumes of Casper's Reports of small Cause Court

Cases were also recognized by Supreme Court of Calcutta etc.

The judges and the lawyers at Calcutta Supreme Court were highly educated and

were proficient in English law. The Supreme Court was independent to

administrate with no interruption from the Executive. It also exercised autonomy

in regulation of its own procedure, and followed English Courts at England in

most of the eventualities.51 The English tradition of writing seriatim and dissent

was also adopted by the English judges of Supreme Court at Calcutta.

Another such incident is reported in Morton's report, where Chief Justice Sir R.

Chambers entered in his notebooks for the day of judgement, 11 August 1786,

attesting the reality of a congenial bench:

“Tho’ much indisposed I came into court this day to give

judgment in Griffin v. Deater. Mr. Justice Hyde declines

to any opinion and on which Mr. Justice Jones differs with

me on one material point. Mr. Justice Jones, therefore,

began. He said that he was much inclined to think that the

Act of the Parliament does extend to this country and that

Judges of this Court acting as Justices of Peace do fall

within it.”52

We can reasonably conclude that the judges of the Supreme Court of Calcutta had

taken the stepping stone in laying the foundation of tradition of English common

law courts in India including the tradition of writing conflicting opinions. The

reports of compilation of old cases faded into oblivion as they got out of print and

51 Supra note 45 at 68. 52 Thomas M. Curley & Samuel Johnson, Sir Robert Chambers: Law, literature, and Empire in the Age of Johnson, 508(The University of Wisconsin Press, 1988).

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gradually out of sight.53 Therefore, we do not have the cases to read as even the

senior judges and lawyers also did not possess any single copy. 54

4.3.2 Judicial Dissent in the Judicial Committee of the Privy Council

The Judicial Committee Act of 1833 established the Judicial Committee of the

Privy Council, popularly known as Privy Council. It was the highest court of

appeal for several Commonwealth countries. During its era as the highest court of

appeals from India for the period of about 200 years, Privy Council gave over

2,500 judgments and even today these outstanding judgments constitute the

fountain-source of law on many points in India. The Privy Council was the highest

Court of Appeal for India till 1949. However, the practice of writing individual

opinions was not practiced in this court. The principle reason behind this, it seems

was that the decision was technically in the form of advice to the King. Although

it never happened that the advice of Privy Council was not accepted by the King.

4.3.3 Judicial Dissent in Federal Court of India

The Government of India Act, 1935, established a Federal Court for India besides

altering the unitary government of India into a federal government. The Federal

Court began functioning from October 1, 1937. To begin with, the Federal Court

had a very limited power, confined to original jurisdiction in disputes between the

centre and integral units or inter se amongst the latter, advisory jurisdiction and

appellate jurisdiction on a certificate from the High Court. From 1937 to 15th

August 1947, the Federal Court had only the appellate jurisdiction in

constitutional cases. After Independence, the Federal Court (Enlargement of

Jurisdiction) Act, 1947 empowered the Federal Court to have the appellate

jurisdiction in civil and criminal matters also. But at the same time, its territorial

jurisdiction was reduced, as a result of division of India and Pakistan.

Appeals from Federal Court could go to the Privy Council. With effect from 10th

October, 1949 the complete appellate jurisdiction was vested in the Federal Court

and appeals to the Privy Council were abolished altogether. The recognition of

53 Supra note 45 at 656. 54

Supra note 36 at 64.

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previous decisions as law in India was first time accepted by the Government of

India Act, where it provided that decisions of Privy Council and Federal Court are

binding on all courts in India.55Within this short period of twelve years the Federal

Court judges successfully developed some noble practices like judicial

independence, impartiality and integrity of judges and judicial institution as a

whole, which were inherited by the Supreme Court of India. Further, Government

of India Act, 1935 explicitly provided that judgment of the court will be delivered

by majority of the judges sitting in the bench and judges shall have full freedom to

express their dissent in the bench.56 Judges of the Federal Court were trained in

the common law and in the august company of English judges. Sir Maurice Gwyer

was the first Chief Justice of the Federal Court. Sir Patrick Spens served as Chief

justice between 1943-1947.

Tradition of seriatim along with opinion of court was practiced by the judges of

the Federal Court. The success of this institution is very well reflected in

Madholal v. Official Assignee of Bombay, 57 where a bench of four judges,

judgment was given by the majority of 3:1 and unexpectedly the dissenting judge

was Chief Justice Kania, which is not a usual phenomenon.

4.3.4 Judicial Dissent in Supreme Court of India

Post-independence the new Indian Constitution was adopted on 26th January,

1950, and the Federal Court gave way to the Supreme Court of India under the

new Constitution. Borrowing the traditions of Government of India Act, 1935, the

new Constitution vested the Supreme Court with the power of declaring the law

58and to frame rules and regulations for regulating its own proceedings. Article

145(5) of the Constitution of India, provided that judgment of the court will be

delivered by the majority, but judges shall have freedom to write their dissenting

55 See S.212, Government of India Act, 1935. 56 See S.214 (4), Government of India Act, 1935 (It reads as: “No judgment shall be delivered by the Federal Court save in open court and with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this subsection shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment”). 57 AIR 1950 FC 21. 58 See Article 141, Constitution of India, 1950 (It reads as: “Law declared by Supreme Court of India shall be binding on all courts within territory of India”).

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opinions. The very first example of dissenting opinion in the history of Supreme

Court of India was recorded by Justice Fazl Ali in the famous case of A.K.

Gopalan v. State of Madras59 which was accepted as the true law after 27 years in

Maneka Gandhi v. Union of India.60

The foundation of the Supreme Court of India was also built on the paths of the

English courts. The tradition of writing seriatim with the question of court is

evident in the opinion writing of the Supreme Court of India. 61 The modern

American trend of writing individual opinions along with opinion of the court is

perceptible in the Supreme Court of India, where in a case we can get variety of

separate opinions. In the case Kesavananda Bharati v. State of Kerala,62 the 13-

judge Constitutional bench of the Supreme Court deliberated on the limitations, if

any, of the powers of the Parliament vis-a-vis of fundamental rights of an

individual. In a piercingly divided judgment, by a margin of 7-6, the court held

that, while the Parliament has “extensive” powers to amend the Constitution

including the chapter of fundamental rights but it cannot destroy or emasculate the

basic elements of fundamental features of the Constitution. Chief Justice Sikri

delivered opinion of the court. J. Shelat and J. Grover joined him relying more on

an implied limitation on the amending power which prevented the parliament

from changing the identity of the Constitution or any of its basic features. Justice

Hegde and Justice Mukherjee also agreed with the chief Justice though in their

separate opinion they held that ‘the building of a welfare state is the ultimate goal

of every government but that does not mean that in order to build a welfare state,

human freedoms have to suffer a total destruction’. Justice Reddy agreeing, with

opinion of the court, but writing his separate opinion, held that though the power

of amendment was wide, it did not comprehend the power to totally abrogate or

emasculate or damage the identity of the Constitution. Finally, Justice

H.R.Khanna broadly agreed with the aforesaid views of the six learned judges but

wrote his separate concurring opinion. Justice A. N. Ray led the minority and 59 AIR 1950 SC 27. 60 AIR 1978 SC 597. 61 Available at : <http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3371> 62 AIR 1973 SC 1461.

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Justice D.G. Palekar, Justice S. N. Dwivedi, Justice M.H. Beg, Justice K.K.

Mathew and Justice Y. V. Chandrachud joined him and wrote their separate

dissenting opinions. In this process total eleven separate judgments were written.

On 10th February, 1970, a bench of 11 judges by a majority of 10 to 1 had voided

the Bank nationalization Act, 1969 in R. C. Cooper v. Union of India63 under

Article 31(2) on the ground of inadequacy of compensation even though the

adequacy of compensation had been made expressly non-justiciable by the 4th

Amendment 1955. Justices Sikri, Shelat, Hegde& Grover were parties to the

majority opinion and the single dissenting judge was Justice A.N. Ray.64

On 15th December, 1970 in Madhav Rao Scindia v. Union of India65 the Supreme

Court by a majority of 9 to 2 nullified Government's Orders of 6 September, 1970

for the derecognition of the former princes and their privileges. The majority

judges included Justices Sikri, Shelat, Hegde and Grover and the minority

dissenting judges were Justices Mitter and Ray. To overcome the majority

judgment, the 26th Constitution Amendment 1972 was made to derecognize the

former Rulers. This amendment was also under challenge in the Kesavananda66

case.67 In the present practise, dissenting judgements seem to be used as a tool to

attract attention and therefore, gone very common in the superior court. The basic

purpose of development of dissent was to break the unlimited power of the court

so that equal power could be enjoyed by the Legislature also. But now it is being

practiced with this belief that dissent helps in making a better law. Todd

Henderson observed that, “Thomas Jafferson and Justice Stone made the same

arguments about the value of dissent. We remember that Jefferson wanted to

shrink the power of the court, while Stone presumably wanted to increase it or, at

least, kept it the same.”68 As Justice Brennan argued in defence of dissent that

63

AIR 1970 SC 564. 64 T.R. Andhyarujina, The Political Overtones Of The Kesavananda Case, 12(ULP Co. Pvt. Ltd., New Delhi, 1stedn.,2012). 65 AIR 1971 SC 530. 66

AIR 1973 SC 1461. 67 Supra note 64 at 13. 68

M. Todd Henderson, “From Seriatim to Consensus and Back Again : A Theory of Dissent”, 363 Univ. of Chicago, Law and Eco., Olin Working Paper, 43(2008), Available

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dissents are offered as a corrective in ‘the hope that the court will mend the error

of its ways in a later case’. The success of Justice Fazal Ali's dissenting opinion in

A.K. Gopalan v. State of madras, 69 Justice H.R. Khanna's dissent in Habeas

Corpus case, 70Justice Holmes's dissent in Lochner v. New York,71and Justice

Harlan's dissenting opinion in famous Homer Adolph Plessy v. Ferguson72prove

the above proposition beyond any doubt that the practice of dissent is a vital

ingredient of judicial determination of real facts and issues.73

Dissent is a powerful tool of the law and hence it is used to achieve the ends of the

law, whatever they may be. Modern age is an age of dissent and the old age

practice of writing dissent which has travelled long despite several changes and

criticisms, will continue to flourish.

Justice William O. Douglas observed:74

“We must expect of judges the fortitude and courage that

we demand of all other servants who man our public

posts. If they are true to their responsibilities and

traditions, they will not hesitate to speak frankly and

plainly on the great issues coming before them. They will

prove their worth by showing their independence and

fortitude. Their dissents or concurring opinions may

salvage for tomorrow the principle that was sacrificed or

forgotten today.”75

Dissent is not just about modernity's quest for deliberative democracy or

necessary for the proper functioning of a Supreme Court. It is also an inbuilt

at: <http://papers. Ssm.com/so13/papers.cfm?abstract_id=1019074> (accessed on October 28, 2017). 69 AIR 1950 SC 27. 70 ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. 71 198 U.S. 45 (1905). 72 163 U.S. 537 (1896). 73

Supra note 36 at 69. 74

William O. Douglas, Associate Justice of US Supreme Court from 1939 to 1975. 75 William O. Douglas, “The Dissent: A safeguard of Democracy”, 32 J.AM. Judi.Soc., 104 at105 (1948).

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intra-organ control which supervises the deliberations of majority. It is not only

necessary to ensure to legitimacy of the court, but also gives law of authority to

resolve controversial social issues by bringing diverse opinions on surface.76

J. Krishna Iyer states, “Today’s dissenting view might have weight to become the

law of tomorrow.”77Dissent is ethics in democracy and posthumous glory of

prophets and judges, if played over the flame of conscience, wisdom and

discipline. The seminal rule of stirring the sensibilities and prodding the

conscience of the country belongs to judges who foresee the future and to

jurisconscients who fashion its fabric. If the Judiciary itself is jittery and minister

uncertain of the morrow, if terror and horror are the lot of the weaker gender and

down-trodden sector, silence is sin and dissent is a duty. The explosive syndrome

or passivist pathology are grave risks to our Secular Socialist Republic. Then the

therapeutic process of activist protest and functional dissent finds its finest hour of

fulfilment.78Public control of the courts or putting it in another way accountability

of judges is weakened if dissents are hidden. It is though publicity alone,

Bentham said, that justice becomes the mother of security.79

4.4 CONCLUSION

In this historical survey, the researcher found that the deliberation on the opinion

delivery traditions in the Anglo- American courts is nothing but the authority of

court and it has provided dramatic testimony to the power of institutional

arrangements in structuring individual behaviour.80

On one hand the principles of precedents are strength of Indian legal system, but

on the other hand, the trend of opinion is in favour of freedom from the binding

effect of precedents. At the first place these two trends may appear divergent but

they are not so, and are perfectly consistent. It is the creative spirit that desires the

removal of the shackles of the binding precedents. However, the decisions of

76 Supra note 68 at 40. 77 Supra note 39 at 187. 78 Ibid. 79 Jeremy Bentham, “Draught for the organization of judicial establishments”, 4.3 The works of Jeremy Bentham, 17 (1843). 80

Supra note 36 at 67.

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higher tribunal shall remain binding on subordinate courts. There is no possibility

of departing from this rule in the near future, nor are there very strong reasons for

it. In India, the doctrine is not likely to undergo any considerable modification. It

will help in bringing about national integration and uniformity in the law, and will

cause a uniform development of law.

The study of this chapter reveals that permitting or not permitting dissent is not

just about getting better law per se, but also about evolving a defined role of

courts to establish new practices that would lead to enrich the jurisprudence of

precedents. It also shows that the institution of judicial dissent has notably proved

its worth in the countries primarily based on common law.81

81

Id. at 69.

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