Column| Supreme Court's Tryst With Doctrine Of Stare Decisis

Yesterday, in Sita Soren vs Union Of India 2024 INSC 161, the Seven Judges Bench led by the Chief Justice Of India Dhananjaya Y. Chandrachud unanimously overruled a 26 year old judgment in PV Narasimha Rao vs State [1998] 2 S.C.R.870.

The doctrine of stare decisis is not an inflexible rule of law, the judgment authored by CJI Chandrachud noted.

Stare decisis means “to stand by things decided” in Latin. The doctrine of stare decisis provides that the Court should not lightly dissent from precedent.

The court made the following observations regarding this Doctrine in the judgment

1. The Doctrine of Stare Decisis is not an inflexible rule of law, and it cannot result in perpetuating an error to the detriment of the general welfare of the public.
2. A larger bench may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents. A decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength.
3. SC may review its earlier decisions if it believes that there is an error, or the effect of the decision would harm the interests of the public or if “it is inconsistent with the legal philosophy of the Constitution”. In cases involving the interpretation of the Constitution, it would do so more readily than in other branches of law because not rectifying a manifest error would be harmful to public interest and the polity.
4. The period of time over which the case has held the field is not of primary consequence. SC has overruled decisions which involve the interpretation of the Constitution despite the fact that they have held the field for long periods of time when they offend the spirit of the Constitution.

According to the court, the judgment of the majority in PV Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered, the bench said.

One important point to be noted is that, in this judgment also, the Court reiterated that a Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength.

Usually, the Supreme Court sits as a two judges bench or a three judges bench. So most of its decisions can be doubted by another two/three judges bench. A recent example is the overruling of Asian Resurfacing judgment. Last week, in High Court Bar Association Allahabad v. The State Of Uttar Pradesh 2024 INSC 150, CJI Chandrachud led five judges bench overruled a three judges bench judgment in Asian Resurfacing of Road Agency Pvt. Ltd. vs CBI. The Court unanimously held that Constitutional Courts cannot fix a time-bound schedule for disposal of cases.

But how does the Constitution Bench judgments get doubted? So if a two/three judges bench cannot disagree with a five judges bench, how does the latter get overruled?

Order VI Rule 2 of the Supreme Court Rules 2013 provides that if a Bench in the course of hearing any cause, appeal or other proceedings considers that the matter be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of the matter.

In this case, Sita Soren claimed protection under Article 194(2) of the Constitution, relying on the judgment in PV Narasimha Rao. The Jharkhand High Court refused to quash the criminal proceedings holding that she is not entitled to the protection under Article 194(2). The appeal against this judgment was placed before a bench of two judges of the Apex Court. It took a view that since the issue arising for consideration is “substantial and of general public importance”, it must be placed before a larger bench. Later, this three judges bench took the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench. This is how it reached the five judges bench. Last year, this five-judge bench recorded prima facie reasons doubting the correctness of the decision in PV Narasimha Rao and referred the matter to a larger bench of seven judges.

Thus, practically, this is how it happens: When a two/three judges bench doubts the correctness of a Constitution Bench judgment, it does not express the doubt explicitly, but refers it to a larger bench.

There is yet another way out. Review Petitions can be filed against every judgment of the Supreme Court. Even after dismissal of the Review Petitions, the aggrieved can file Curative Petitions. These curative petitions will be first circulated to a Bench of the three senior­most judges and the judges who passed the judgment complained of, if available. If the Bench before which a curative petition was circulated concludes by a majority that the matter needs hearing then it shall be listed before the same Bench, as far as possible. This means, every two/three judges bench decisions can reach a five judges bench judgment and thus they get the authority to 'doubt' a judgment delivered by another five judges bench.

Last year, in In Re: Interplay Between Arbitration Agreements Under The Arbitration And Conciliation Act 1996 And The Indian Stamp Act 1899 2023 INSC 1066, a seven judges bench headed by CJI Chandrachud overruled a five judges bench judgment N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. (2023) 7 SCC 1. It held that agreements which are not stamped or are inadequately stamped are not rendered void or void ab initio or unenforceable. In this case, it was argued that it was improper for the Constitution Bench to exercise its curative jurisdiction to refer the matter to this Bench of seven Judges. But the Court, referred to nine judges bench judgment in Kantaru Rajeevaru v. Indian Young Lawyers Association, and held that the term “other proceeding” under Order VI Rule 2 of the Supreme Court Rules, 2013 will also include curative petitions.

To conclude, as the Court said in Sita Soren, the doctrine of stare decisis is not an inflexible rule of law. Where there is a doubt, there is a way to overrule even long standing precedents. After all, the Supreme Court is not bound by its own decisions.

Author is an Advocate practising in the High Court Of Kerala and also a Consulting Editor at Verdictum.

The opinions expressed in this article are those of the author.