ADM Jabalpur v. Shivakant Shukla[1], also known as the Habeas Corpus case, is a celebrated decision of the Supreme Court of India, mostly known for the dissenting opinion of Justice H.R. Khanna. The importance of the issues to be decided by the Court was understood even before the constitution of the bench, which was supposed to examine the fundamental rights of those persons who were detained under preventive detention laws. It was at a time when national emergency was declared under article 352 of the Constitution and all fundamental rights were suspended. The Supreme Court bar was also concerned about the constitution of the bench which will hear that particular case. A former Attorney General for India approached the then Chief Justice of India with an offer to make some suggestion regarding the constitution of that particular bench. Thereupon, the Chief Justice responded thus: “Has it ever been suggested to a Chief Justice as to how to constitute a Bench and who is to be put on that Bench?”[2]. This response of the then Chief Justice of India highlights the importance of precedent in our justice delivery system. Though in common parlance precedent means an official action or decision that has happened in the past and that is seen as an example or a rule to be followed in a similar situation latter; in the realm of jurisprudence precedent implies a decision of a court of law, especially of a court of last resort, which lays down a legal proposition.

The avowed purpose of following precedents is to ensure consistency and certainty in the application of law. In our subordinate courts we mostly follow precedents unmindful of this jurisprudential purpose, because precedents are always binding for us. However, a problem arises when a Court considers the decision of a superior court as precedent and applies the same in a case with a different factual background,without noticing whether that particular decision has the effect of declaring any law. This is the first problem with precedents, which arises because of a lack of understanding of what actually precedent is. This problem can be solved by a trained and experienced judge, who can differentiate the ratio of a decision from the decision itself. Since we have already read, heard and discussed a lot about ratio decidendi and obiter dicta from our law college days, I will not dwell on it in this brief write up.

The second problem with judicial precedents, which is increasingly becoming a cause of concern, is the multiplicity of available precedents and the geometric growth thereof. With the availability of large numbers of cases, having precedential value, it often becomes difficult to find out the settled law on a subject for application of the same in a case pending before us for decision. Huge number of reported cases are often cited in the Courts and some of them appears to be contradictory in nature. In Courts we get very little time to make in depth research on those legal aspects and the perception of law, which exists in our mind, becomes unsettled. Eminent jurist Fali S. Nariman has observed, in his book India’s legal system: Can it be saved?, that there are just too many judgments reported which have to be cited, which have to be looked into, followed or distinguished, all of which takes up a vast amount of judicial time. He has further observed that quite often judges are deterred from considering the overall justice of the case and the case is taken off the rails with some citation or the other.

Though that observation was made in the context of the High Courts; the same holds good in the case of subordinate court judges also. Sometimes we get distracted, facts of the case before us do not get the attention it deserves and we get tempted to take a decision in conformity with some other decisions, taken in the context of some other sets of facts. Sometimes we do not even take the pain to ascertain whether there is any ratio to follow in those decisions. No doubt, decisions of the superior courts, which declare a law, are always binding on us. But there may be some decisions which are valid between the parties of that particular case only. These are like single journey tickets. We cannot use the same ticket to travel again and again.

In Courts our basic purpose is to deliver justice. A precedent is a formal source of law and following precedents is a technique of the judicial process. Justice, as defined by Roman jurist Ulpian, is the constant and perpetual will to render to everyone that to which he is entitled. In other words, the function of justice administration is to give everyone his due. The willingness to give everyone his due is an important and generally valid ingredient of the concept of justice.[3] When a person appears before a Court, he expects that the facts presented by him shall be understood, examined, analyzed and he shall be given what is due to him. Scholastic discourses of law, unconnected with the facts presented by the litigants, is not called for. However, this happens sometimes, nay, most of the times because lots of cases are cited before the Courts by the lawyers. It is not possible to correctly appreciate the ratio of those decisions, given the fact that there may be huge time gap between two decisions. Law, being an organic discipline, changes with time. Moreover, before picking up words and phrases from a judgment we need to consider the entire factual background of the case.

In order to deliver justice, we need to decide cases correctly. We need accurate facts and correct laws on the subject to be readily available so that the most correct and most logical decision may be taken. In this context I would like to refer to the system of Restatement of Law practiced in America. In America there is a group of Judges, Lawyers and Legal Scholars, who work in the name of American Law Institute. It was formed in the year 1923 for the purpose of clarifying and simplifying the laws prevailing in America. This group of lawyers and scholars use to go through the numerous case laws, which are binding in nature, and then they publish a document which is known as restatement of law. These restatements are not officially binding but they have a great persuasive value since they are published after years of painstaking efforts by eminent judges, lawyers and legal academicians. These restatements of laws are sometimes referred by our Supreme Court also. Like, in Monnet Ispat and Energy Ltd. and Ors. vs. Union of India (UOI) and Ors.[4], while discussing the law on promissory estoppels, the Hon’ble Supreme Court referred to Article 90 of American Law Institute's "Restatement of the Law of Contracts". In Bengal Immunity Company Limited vs. The State of Bihar and Ors[5], while discussing the law on the subject of extra territorial jurisdiction of states, the Hon’ble Supreme Court referred to "Conflict of Laws - Restatement of the Law" by the American Law Institute.

In our country we can, perhaps, think of developing a similar process of restating the laws; especially on those subjects where there exists contradictory judicial opinions. In America, in the 1920’s initially a group of prominent American judges, lawyers, and law professors formed "The Committee on the Establishment of a Permanent Organization for the Improvement of the Law".  The Committee reported to the members of the legal profession that the “law is unnecessarily uncertain and complex,” and as a result, there is a “general dissatisfaction with the administration of justice.” In order to remedy these issues, the Committee proposed the formation of The American Law Institute in order "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice and to encourage and carry on scholarly and scientific legal work."[6] Initially, at least, we can deliberate on this issue in our judicial academies and other legal forums.

With a possible restatement of the laws, justice administration will, perhaps, become faster and more consistent. Judges will get time to focus more on the facts before them and this will enable them to render to everyone that to which he is entitled.

Sri Nisanta Goswami

AJS, Officer