By Dipti Khatri, UPES Dehradun

Editor’s Note: Stare decisis is the policy of the court to stand by precedent. It literally means “to stand by decided matters”. The phrase “stare decisis” is itself an abbreviation of the Latin phrase “stare decisis et non quieta movere” which im plies “to stand by decisions and not to disturb settled matters”

1. Introduction

The doctrine of precedent refers to the doctrine that the court is to follow judicial decisions in earlier cases, when the same questions or points are raised before it in subsequent matters. According to Salmond, the phrase ‘the doctrine of precedent’ has two meanings. In its loose sense, it means that precedents are reported, may be cited and will probably be followed by courts. In strict sense, it means not only that a precedent has great authority but in certain circumstances, courts are bound by previously decided cases. Thus, what a court really does is to apply principles or decisions laid down in past.[ii] It is now appropriate to turn to the question of how the doctrine of binding precedent works in the context of the English common law, with particular reference to

  • The way in which the courts decide what it is that is binding in earlier decisions; and
  • the extent to which, and the circumstances in which, the highest court should feel free to depart from its own previous decisions.

According to Hart and Sacks, stare decisis furthers three primary goals. First, the doctrine promotes private ordering of citizens affairs by enabling them to plan their social and economic transactions with confidence that they are in compliance with existing law. Stare decisis also encourages private settlement of disputes by discouraging individuals from forum and judge shopping (Eskridge and Frickey 1994, 568; Hanssen 1999).

Second, stare decisis furthers fair and efficient adjudication by sparing litigants the need to relitigate (and judges the need to reconsider) every issue in every case, and it discourages a rush of litigation whenever a change of personnel occurs on the bench. Third, stare decisis promotes public confidence in the judiciary by providing some constraints on judges power through the obligation to build upon prior decisions in a fashion that may withstand professional criticism.[iii]

The doctrine that holdings have binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law.[citation needed] Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret law does not preclude the adoption of a small number of selected binding.

My primary project in this Article is to isolate the various components of the Supreme Court’s stare decisis jurisprudence and to study their individual and collective functions. That analysis yields two overarching conclusions.

First, the modern doctrine of stare decisis is essentially indeterminate. The various factors that drive the doctrine are largely devoid of independent meaning or predictive force. Fairly or not, this weakness exposes the Court to criticism for appearing results-oriented in its application of stare decisis. The second conclusion is forward-looking, and it provides the groundwork for transforming stare decisis into something more predictable, meaningful, and theoretically coherent. Most of the considerations that populate the Court’s current jurisprudence are best understood—or, perhaps, reimagined—as efforts to gauge the reliance interests that would be affected by the decision to overrule a given precedent. There is no inherent problem with such focusing case laws.[iv]

2. Foundation of Stare Decisis

The basic reason behind the doctrine of stare decisis is the maintenance of consistency and certainty. Certainty, predictability, and stability in law are considered to be the major objectives of the legal system, and the doctrine of stare decisis aims at achieving these objectives.

In Hari Singh v. State of Haryana, it was noted that it is true that in the system of justice which is administered by courts, one of the basic principles to be kept in mind that the courts of co-ordinate jurisdiction should have consistent opinions in respect of similar sets of facts and circumstances or question of law. If opinions given on identical facts are inconsistent, instead of achieving harmony in the judicial systems, it will lead to judicial anarchy. The view that has held the field for a long time must not be disturbed merely because of the possibility of another view.

2.1. The reason behind Stare Decisis

Understanding the Notion of Precedent For the common-law mind steeped in the tradition of progressive advancement on a foundation of progressively refined reason, there is a self-evident quality to the notion of precedent. Precedent appeals to primal desires for—and, in a system of laws, justified expectations of—rationality, regularity, and stability.[v]

2.2. The Values that Animate Stare Decisis

The notion that judges should adhere to authoritative decisions of the past has a deep lineage in America’s common-law heritage. After two hundred years of domestic judicial pronouncements on the subject, legal scholars have had ample source material for examinations of the foundations of stare decisis. The most recognizable value of stare decisis is its ability to enhance stability and consistency across time and similar circumstances.

At its most elemental level, it satisfies the impulse that, all other things being equal, a legal system is better advised to resolve matters firmly and finally than to search for normatively more appealing solutions on a case-by-case basis. In the same vein, adherence to precedent fosters the orderly and efficient administration of justice by discouraging successive relitigation of issues that have already been authoritatively resolved. Finally, stare decisis serves to sustain the public’s trust in a principled, law-bound judiciary.

2.3. The Stare Decisis Antivalues

 The Justifications for Reexamining Precedent Under the combined weight of these considerations, the doctrine of stare decisis ultimately functions as a strong presumption against revisiting precedent. The Supreme Court has described this presumption in a variety of ways, but the basic thrust has been the same: stare decisis imposes a “severe burden” on those judges who are dissatisfied with established Although the grounds for overruling precedent are easily stated, their application is necessarily highly specific to each particular situation.

One standard consideration is whether a precedent has proved to be “unworkable” in practice. On a similar note, reconsideration is appropriate when an earlier decision is seen as poorly reasoned from the outset or otherwise “has been the subject of continuing controversy and confusion. “When carefully considered, each of these related ideas is simply another way of saying that a particular precedent never succeeded in establishing the stability and predictability that justify stare decisis in the first place. An even more significant consideration has been the influence of subsequent developments on the foundation of a precedent. Reevaluation of a precedent is justified when “facts have so changed, or [have] come to be seen so differently, as to have robbed the old rule of significant application or justification. “Of most relevance,” case law.[vi]

2.4. Institutional and Instrumental Considerations

A further fixture of stare decisis jurisprudence is perhaps the most important for understanding the doctrine in application. The Supreme Court has long held that stare decisis is most potent in statutory cases and is weakest in constitutional cases.65 At its most  elemental level, this distinction is grounded in the availability—both formally and practically—of alternative constitutional vehicles for error correction. Stated simply, when a court interprets a statute, the legislative branch is available to correct, update, or otherwise revise the judicial determination. Thus, as the Supreme Court has reiterated, “considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation.”[vii]

3. Responding to Rule-of-Law Ambivalence

We can now see that the relationship between stare decisis and the rule of law is not all to the good. Deferring to precedent can generate rule-of-law costs that may offset the countervailing benefits. What is to be made of the resulting tension?

In doctrinal terms, there are three possible reactions.  First, the rule-of-law concerns might lead a legal system to consider jettisoning stare decisis altogether. Second, judges might attempt to work out the tension on the micro level by resolving individual cases in such a way as to promote the rule of law. And third, the rule-of-law ambivalence might operate at the macro level to influence how much deference judicial precedents receive. I discuss each option in turn before suggesting that the third holds the most promise.

4. Jettisoning Stare Decisis

The most severe response would be to treat rule-of-law concerns as undermining the very foundations of stare decisis. That approach strikes me as an overreaction, in large part because it would sacrifice the potential rule-of-law benefits that Professor Waldron so effectively describes. Nor is the abolition of stare decisis a realistic alternative as a practical matter, at least in the foreseeable future. Despite its tendency to come under fire in particular cases and to generate disputes about its proper application, the abstract notion of stare decisis continues to command significant allegiance among most judges and scholars.

  • The Rule-of-Law Case for Precedent

In constructing his operating definition of the rule of law, Professor Waldron emphasizes the generality principle. Briefly stated, generality entails making legal decisions by developing and announcing general rules whose application extends beyond the case at hand. This is not simply a matter of treating like cases alike; the requirement of generality goes further, “commanding judges to work together to articulate, establish, and follow legal norms.”[viii]

To examine the mechanisms by which stare decisis fosters generality and contributes to the rule of law, Professor Waldron divides the adjudicative process into distinct layers. The bottom layer involves the “Precedent Judge,” who is initially called upon to resolve a dispute. The requirement of generality compels the Precedent Judge to approach the case before her as an instantiation of a broader problem. She must resolve the case by reference to a general rule that will carry over into the future.

In discharging this duty, the Precedent Judge acts as if she is both deciding a concrete dispute and setting a precedent. Professor Waldron helpfully notes that the Precedent Judge’s mandate of generality does not depend on any subsequent decisionmaker’s actually according to respect to her decision. To the contrary, the Precedent Judge’s obligation is the same regardless of what the future may hold. But within a system that recognizes judicial precedents as meaningful, the Precedent Judge also sets the tone for later adjudication by establishing the general norm that will serve as the guiding framework for subsequent jurists.

The onward march of time inevitably brings the march of more aggrieved litigants into the courts. As it does, Professor Waldron leads us through additional layers of the rule-of-law case for stare decisis. These upper layers relate to the actions of the “Subsequent Judge,” who determines how to apply past decisions to a new dispute. The norm of generality remains crucial. The Subsequent Judge must imagine herself as working alongside the Precedent Judge to decide cases according to a generally applicable rule.

Of course, any such rule must resolve the dispute that is pending before the Subsequent Judge by reference to a broader framework that extends across cases; after all, today’s Subsequent Judge is tomorrow’s Precedent Judge. Yet the Subsequent Judge must also ensure that the rule she articulates pays appropriate respect to the Precedent Judge’s decision. This is the second way in which stare decisis affects the rule of law: By giving precedents their due regard as embodying “genuine legal norms,” Subsequent Judges promote the ideal of a legal order that transcends the details of particular disputes and the proclivities of particular judges. Legal rules become the products not of individuals, but of courts.

Professor Waldron also considers the rule-of-law effects of a court’s decision to overturn a precedent despite its applicability. A legal system that accepts some overruling does can remain simpatico with the rule of law, he explains, so long as it meets certain conditions. In particular, a baseline regard for the value of legal constancy must guide the Subsequent Judge who is contemplating a departure from precedent. Adopting that perspective will lead to the preservation of an essentially stable equilibrium notwithstanding occasional incidences of adjudicative change. Recognizing the importance of systemic stability is vital in dissuading the Subsequent Judge from overruling each and every precedent that she finds unconvincing. Instead, the judge will reserve her overruling’s for situations in which the need for judicial correction or innovation is pronounced, and she will reasonably expect her successors on the bench to do the same.[ix]

  • The Rule-of-Law Case against Precedent

Professor Waldron provides a valuable service by applying his characteristic rigor to the rule-of-law benefits of precedent. My modest aim is to offer some thoughts about how the relationship between precedent and the rule of law can run in the opposite direction as well. Professor Waldron himself notes this point, but given the focus of his project on articulating the layers of justification for stare decisis, he understandably devotes less attention to the implications of its rule-of-law costs. It will thus be instructive to say something more about the rule-of-law case against precedent.

One category of potential rule-of-law costs relates to the dangers of stifling the practical effectiveness of reasoned argumentation. There is value in a citizen’s power to advocate her interests before governmental bodies and to receive an explanation for defeat that is more satisfying than unadorned path-dependence. That value can find itself at odds with judicial deference to precedent. This tension is mitigated to some extent by the prevailing American characterization of stare decisis as a rebuttable presumption rather than an “inexorable command.” Nevertheless, the prospect of overruling does not entirely eliminate the rule-of-law concerns that may arise from deference to past decisions; the litigant who seeks change must still overcome a presumption that her case is a loser.[x]

A second category of rule-of-law costs involves a court’s choice to depart from its best reading of a primary legal source in order to remain faithful to precedent. Imagine that you are a Supreme Court justice faced with a case involving the right of corporations to make independent expenditures on behalf of political candidates. Your understanding of the Constitution-whether based on its original public meaning, its implementation in light of contemporary mores and policy objectives, or some other interpretive referent-indicates that corporations do, in fact, possess such a right. Yet there is clear precedent to the contrary. You might well conclude that the importance of leaving matters settled, as informed by the rule-of-law benefits of constancy and stability, overrides the importance of applying the Constitution in the manner you would otherwise favor.

But note that your decision is not an unmitigated boon for the rule of law. By deviating from the reading of the Constitution that you view as most compelling, you compromise your solicitude for the Constitution’s role in contributing to the “framework of public norms” that “provide a basis of legal accountability” for the exercise of governmental power. Fidelity to judicial precedent sometimes entails the subordination of “fidelity to the Constitution.” This is no accident; it is inherent in the nature of constitutional stare decisis. Even so, the fact remains that the principle of generality demands regard for judicial precedent and enacted law alike. Tilting the scales in favor of the former can undermine the resonance of the latter to the detriment of the rule of law.[xi]

  • Cases-by-Case Assessments of the Rule of Law

Rather than abandoning stare decisis, courts might respond to its rule-of-law ambivalence at the level of individual cases. The decision of whether to defer to precedent would depend on the rule-of-law implications of deference in the case at hand.

Judges also make individualized inquiries into the rule-of-law effects of stare decisis where one line of precedent stands in tension with another. In such cases, the Subsequent Judge might declare that abandoning the “errant precedent” is the outcome best aligned with enhancing jurisprudential coherence and promoting the rule of law. Yet even where a prior judge offers a less-than-compelling basis for distinguishing a precedent, her decision still becomes part of the general rule that all future judges on her court are jointly charged with respecting and applying.

When a Subsequent Judge confronts the body of relevant precedents in a future case, she must accord respect not only to the original precedent, but also to its intervening applications. If the Subsequent Judge chooses to renounce certain precedents because she views them as unfaithful to others, her action has both costs and benefits for the rule of law. To be sure, her decision may promote the rule of law in some measure by enhancing jurisprudential coherence and bringing the governing legal norm into closer proximity with the general principle that the original precedent embodied. But fidelity to the original precedent comes at the expense of fidelity to the intervening applications, and it is profoundly difficult to discern whether the rule-of-law benefits of the former outweigh the rule-of-law costs of the latter.

The more basic point is simply to illustrate the challenges of making on-the-fly determinations about whether deference to precedent supports the rule of law in a given case. The rule of law is a valuable principle for organizing the operation of a legal system, and it can certainly take some options-for instance, resolving a dispute based on personal affinity or political preference-off the table in individual cases. But it is an awkward tool for determining when to stand by a particular precedent and when to depart.

5. Stare Decisis in Civil Law System

Stare decisis are not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constant, which is similar to Stare decisis and dictates that the Court’s decision condone a cohesive and predictable result.

One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should, therefore, follow that a court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases. Courts have regularly asserted that this principle is true, only applying the decision retroactively effect to the parties in the immediate case. Yet, occasionally, the Court did not apply its holding to the parties before it, and in a series of cases beginning in the mid–1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively —constitutional–criminal law decisions. The results have been confusing and unpredictable.

Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.” Statutory and judge–made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old. In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions. What the rule is to be, and indeed if there is to be a rule, in civil cases has been evenly disputed in recent cases.

As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case. As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when States are required to refund taxes collected under a statute that is subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided.[xii]

6. Precedential Effect of Court Decisions

Under the doctrine of stare decisis, when a court has laid down a principle of law as applying to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. The rule of stare decisis is a judicial policy, based on the principle that absent powerful countervailing considerations, like cases should be decided alike in order to maintain stability and continuity in the law. The doctrine is the means by which courts ensure that the law will not merely change erratically but will develop in a principled and intelligible fashion.

 Stare decisis is the preferred course because it promotes evenhanded, predictable, and consistent development of legal principles fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis is intended to insure that people are guided in their personal and business dealings by prior court decisions, through established and fixed principles they announce. Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right. Stated otherwise, stare decisis is the most important application of a theory of decision-making consistency in our legal culture and it is an obvious manifestation of the notion that decision-making consistency itself has normative value.

The doctrine of stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. The doctrine of stare decisis is crucial to the system of justice because it ensures predictability of the law and the fairness of adjudication.

  • Doctrine of Precedent: Pros and Cons

A number of commentators have explored the pros and cons of the doctrine of stare decisis. Supporters of the system, argue that obeying precedent makes decisions “predictable.”  Another advantage of this doctrine, as mentioned earliar is that it brings certainty, stability and consistency in law. It also saves time and energy of judges as they are not required to determine the same question of law over and over again once it has been settled. As noted by Bodenheimer, the doctrine also plays a role in curbing arbitrariness on the part of judges as they are bound to follow established precedents thus preventing bias and error. The doctrine brings flexibility in law and law is shaped according to the social, economic and other circumstances.

However, critics argue that stare decisis is an application of the argument from authority logical fallacy and can result in the preservation and propagation of cases decided wrongly. Another argument often used against the system is that it is undemocratic as it allows unelected judges to make law. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed.[xiii]

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution.

Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. Another factor is that the doctrine of binding precedent can in a sense hinder the development of law. Society is not static and there are changes in social, economic and other circumstances with time. Changed circumstances may require a different interpretation of law.

7. Doctrine of Prospective over Ruling

Although the doctrine of precedent is the normal course followed, decisions that are erroneous or that do not hold good in view of challenged circumstance, may be overruled by higher forums. Prof. Laksminath notes that a decision may be overruled where it is recent or there is a divided opinion, the opinion is erroneous, the decision is unclear, causes in convenience and hardship, the error in the prior decision cannot be easily corrected by the legislative process or the decision is vague. Once overruled, a prior decision is no longer a binding precedent.

However, if a precedent is overruled, this may lead to the re-opening of old disputes on the ground of change in the legal position and consequently, multiplicity of proceedings. By the application of this doctrine, changes in the position of law that are laid down by the court are made applicable only prospectively from the date that the change in law has been brought about by the court or from any other date specified by the Court so as not to disturb past matters that have been finally settled.[xiv]

The doctrine of prospective overruling which is a feature of American Jurisprudence and an exception to the normal principles of law, was imported and applied for the first time in LC Golaknath v. State of Punjab which overruled its earlier decisions in Shakari Prasad`s case and Sajjan Singh`s case by which the first and seventeenth amendments.

The court does not clearly define the doctrine during this case. But court limited the scope of application of this doctrine by laying down “(1) The doctrine of prospective overruling can be invoked in matters arising under the constitution. (2) It can be applied only by the highest court of the country i.e, Supreme Court as it has Constitutional Jurisdiction to declare law binding on all courts in India. (3) The scope of the retroactive operation of the law declared by the Supreme court superseding its earlier decisions is left to its discretion to be moulded in accordance with thee justice of the cause or matter before it”.

The doctrine has been adopted to avoid multiplicity of proceedings, and avoid uncertainity in law. It was observed in the case of M.A. Murthy v. State of Karnataka that the doctrine of prospective overruling was a part of the constitutional cannons of interpretation.[xv]

While Golak Nath`s case, certain guidelines have been laid down as regards the application of doctrine of prospective overruling, as observed in Somaiya Organics India Ltd.v. State of U.P.

The parameters have not been adhered to in practice. It may be mentioned here that unless the court expressly makes the operation of a decision of a decision prospective, it will be retrospective in operation.

This doctrine has been applied in service matters. In Managing Director, ECIL v. B.Karunakar, the view was adopted. Prospective over ruling is a part of the principles of constitutional cannon of interpretation and can be resorted to by the Supreme Court while superceding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings and to avoid uncertainty and avoidable litigation. In other words action taken contrary to the law declared prior to the date of declaration is validated in larger public interest. The law as declared applies to future cases.

It is for the Supreme Court to indicate as to whether the decision in question will operate prospectively. In other words there shall be no prospective over ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistencies in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of the transaction forming part of the daily affairs.

So.the concept of Prospective Overruling, as the title of the project reflects, is a deviation from the principle of retroactive operation of a decision and thus, a deviation from the traditional Blackstonian principle too. To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.e., have only prospective operation. This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned cases.

8. Doctrine of stare decisis in India

The doctrine of stare decisis as is understood today appears to not have existed in India during the ancient or medieval times. It is only with the establishment of British rule in the country that the concept of binding precedent came to be applicable in India. The British Rule led to the hierarchy of courts as well as reporting of decisions, i.e., the two pre conditions for the stare decisis. In 1813, Dorin suggested the adoption of the doctrine of stare decisis in India.

The establishment of British Rule led to the setting up of the Sardar Diwani Adalats and the Supreme Courts at Calcutta, Bombay and Madras. In 1861, the high court Act was enacted providing for the establishment of high Courts by issue of letters patent. Such courts had original as well as appellate jurisdiction. A hierarchy of courts was thus established.[xvi]

The Government of India Act, 1935 expressly made the decisions of the Federal court and the Privy Council binding on all Courts in British India and thus gave statutory recognition to the doctrine of stare decisis. The Federal courts were not bound by its own decisions. After independence, the doctrine of precedent continues to be followed in the country.

Article 141 of the Constitution of India makes the ‘law declared’ by the Supreme Court binding on all courts within the territory in India. The Expression ‘law declared’ implies the law creating role of the Supreme Court. The Supreme Court is not bound by its own decisions. In Bengal Immunity Co. v. State of Bihar the court observed that there is nothing in the Indian constitution that prevent the Supreme Court from departing from its own previous decision if it is convinced of its error and baneful effect on public interest. In so far as high court are concerned, the decisions of a High Court are binding on all subordinate courts within the jurisdiction of High Court.

9. Separation of Powers, Stare Decisis, and Judicially Enforceable

1. International Law

A deeper appreciation of the relationship between precedent and separation of powers also counsels in favor of a reassessment of stare decisis as to questions of international law. In foreign affairs matters, in particular those that touch on international law, the Supreme Court has repeatedly cautioned that the judiciary should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches.” To reiterate one of my major themes, this concern—grounded in the separation-of-powers relationships between the judiciary and the political branches—does not dissolve merely because a court has created a precedent.

2. Antiquity

The Court sometimes instructs that older opinions are entitled to more deference than newer ones. Interestingly enough, it occasionally takes the opposite position, explaining that recent opinions receive the greatest deference. This ambivalence itself is enough to raise doubts about whether a precedent’s antiquity can help to predict whether it will be upheld. Nevertheless, it is worth taking a moment to explore the underlying theories that these two divergent practices seem to reflect. On the side of enhanced stare decisis effect for recent precedents, one potential justification is that reversing course too quickly could harm the Court’s legitimacy.

As discussed in greater detail below, this sort of rationale is problematic in several respects. Most notably for present purposes, there is no reason to believe that the Court’s legitimacy is in greater danger when it overrules a recent precedent than when it refuses to overrule a flawed precedent in an explicit effort to enhance its own public standing. To justify the opposite presumption-that long-standing precedents are entitled to the most deference-the best argument draws on the concept of reliance.

The idea would be that the length of time an opinion has been on the books is correlated (positively) with the amount of reliance it has engendered, for the simple reason that stakeholders have had more time to understand the opinion, embrace it as governing law, and shape their conduct accordingly. Recent opinions, by comparison, deserve relatively little deference because they are less likely to have generated significant reliance, giving the Court the opportunity to set matters straight before too much water is under the bridge. As Justice Scalia has put it, “the freshness of error not only deprives [a precedent] of the respect to which long-established practice is entitled but also counsels that the opportunity of correction be seized at once before state and federal laws and practices have been adjusted to embody it…”

The Court adopts a similar approach in dealing with a precedent’s track record of affirmance. In the words of one recent opinion, deference to precedent is particularly important where a rule of decision “has become settled through~ iteration and reiteration over a long period of time.” Wermight posit two explanations for this rule. First, opinions that have been reconsidered and reaffirmed are more likely to be correct on the merits; reviewing the issue on multiple occasions reduces the risk of an erroneous result. Such a theory, I have argued above, cannot serve as a component of stare decisis doctrine, which must operate independently of merits considerations to carry any real meaning.[xvii]

3. Remnants and Anachronisms

Another intriguing subset of precedents are those that have escaped overruling for themselves but that belong to disfavored lines of cases—in the parlance of the Court, precedents whose “underpinnings” have been “eroded” by subsequent decisions.112 When a precedent falls into this category, the Court is more inclined to treat it as an anachronism that should be overturned. The Court has framed the inquiry as “whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine.”

4. Unclean Hands

If a precedent represents a break from the cases that came before it, it tends to receive diminished stare devises effect. The principle resembles an “unclean-hands” exception to the doctrine of stare devises: An opinion borne of inadequate respect for its ancestors should expect the same irreverent treatment from its heirs.

5. Voting Margins and Dissents

The number of votes a precedent commanded and the presence of a vigorous dissent can affect the degree of deference the precedent receives. The Court has described the question as whether the precedent was “decided by the narrowest of margins, over spirited dissents challenging its basic underpinnings.”

One possible justification for this practice is that a divided Court and a vigorous dissent signal an opinion’s debatable foundations on the merits.219 Such a theory is problematic for the reasons explained above; in short, shoehorning consideration of the merits into the stare decisis inquiry is unhelpful in determining whether a precedent warrants preservation notwithstanding its wrongness.[xviii]

10. How stare decisis subverts the Law

The doctrine tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level in the appeals hierarchy, and to demand the litigants “distinguish” their cases from adverse precedents, arguing that those precedents do not apply to the present case because of elements that make it different from the cases on which the precedents were established. This can be very difficult to do if there are a great many recent cases on the same issues which cover most of the possibilities.

The situation can be made more difficult by the rules of most courts which limit the length of briefs the litigants may file. In working backward through a long line of wrongful precedents, a litigant can reach the length limit before the argument can make it back to the foundations where the chain of precedents began to drift away from its authority in the constitutional enactments.

11. Stare decisis to abide or adhere to decided cases

 It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred.

This is accomplished by opinions that do not define a set of consistent propositions that extend beyond A. That is, every judge is careful to anticipate all the ways the words of his opinion might be misconstrued to support decisions beyond what is authorized by the constitutional enactments, and in particular, the Constitution.[xix]

There are two variants on the doctrine of stare decisis. The problem we have discussed here is with the strong form, which treats precedents as binding. However, there is a weaker form, which treats precedents as merely persuasive.

In this second variant, a dissenting opinion could be more persuasive than the prevailing opinion, if the person citing it agreed with it. In this variant, precedent becomes merely a convenient way to save time and words by citing the reasoning in another case, saying “My reasoning is similar to that”, and nothing more. Historically, what came to be treated as binding started as persuasive. Returning to treatment of precedents as merely persuasive would solve the problem discussed here, but history shows us that judges are prone to drift back to treating them as binding unless some corrective mechanism is instituted to prevent it. Finding such a check would then be an essential component of any lasting reform.

Stare decisis is the way judges seek the safety of the herd. We need to demand they exhibit more courage, and return to fundamental principles, resorting to stare decisis only when the positions lie on the fuzzy boundary of the region of legitimacy.

12. Legal argument when there is a precedent

Thus noting the court ranking of the judge before whom the lawyer will be appearing and guided by the doctrine of stare decisis, the lawyer will then prepare his or her argument. Usually, the best position for the lawyer occurs when there is a precedent case supporting his or her client’s case.

The lawyer will then argue that the court is either bound, or that the court, if not actually bound, ought to be persuaded by the precedent case to find in the client’s favour. In his or her research, the lawyer will, therefore, look for cases with results which support the client’s position and the lawyer will prepare to argue that the ratio decidendi of those precedent cases covers the facts of the case at bar. However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to determine and articulate the authority of a case. Moreover, skill is necessary to analyze and organize the material facts of both the precedent case and the case at bar. That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavorable. [xx]

To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer. The lawyer may not simply ignore the unfavourable case and hope that the other side does not discover the authority. This is unethical28 and with respect it may be submitted that it is also unethical and intellectually dishonest for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the judge wants to make. This is not to say that lawyers and judges must deal with every case that remotely touches on a subject but only that there should be an honest effort to play by the rules.

stare decisis. The techniques structure and direct the lawyer’s legal reasoning and argument. The  techniques that are available follow as a consequence of accepting and then manipulating the doctrine of following are generally recognized:

13. Stare decisis inexorable command?

“Stare decisis are not an inexorable command” or “a mechanical formula of adherence to the latest decision.”  It is instead “a principle of policy,” and this Court has a “considered practice” not to apply that principle of policy “as rigidly in constitutional as in nonconstitutional cases.”  This Court has not hesitated to overrule decisions offensive to the First Amendment (a “fixed star in our constitutional constellation,” if there is one, — and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.


While statutes and enactments of the legislature lay down the general rules to be applied in the adjudication of disputes between parties, the final authority for the interpretation of those rules are the courts. The doctrine of stare decisis makes the decisions of courts, usually the higher forums, binding on subordinate courts in cases in which similar or identical questions of law are raised before the court. The application of this doctrine ensures that there is uniformity and certainty in the law. It saves time and efforts of judges and helps in preventing arbitrary action on the part of judges. The doctrine thus ensures that at least over a certain period of time law remain certain and people are able to conduct their business in accordance with the prevalent interpretation of law. The doctrine is thus in the interest of public policy.

In India, the doctrine is constitutionally recognized in respect of the decisions of the Supreme Court which have been declared under Article 141 to be binding on all courts and tribunals in the country. This of course implies that even a single pronouncement of the Supreme Court would be binding on subordinate courts. However, as held in the Bengal Immunity case, the decisions of the Supreme Court are not binding on itself. It is only the reasons for deciding a case i.e., the ratio decidendi of the case which are binding on future courts. There is no definite view as to how the ratio decidendi is to be determined but there are a number of tests for its determination of which some are the material facts test proposed by Prof. Goodhart and the Reversal Test Proposed by Wambaugh.

In order for the doctrine of stare decisis to be applicable, there are two basic prerequisites, first that there must be authentic reporting of decisions of courts. The second requirement is an established hierarchy of courts. The principle that the decisions of higher forums would be binding on lower forums is referred to as vertical stare decisis while that the decisions of forums would be binding on coordinate or coequal benches is known as horizontal stare decisis. The great value of the doctrine of stare decisis is that it provides certainty. While the doctrine of stare decisis is in the interest of public policy, there are number of disadvantages of the doctrine.

In view of the large numbers of pronouncements of the Supreme Court and high courts it is difficult to locate all the precedents. Also, even in case of an erroneous decision, lower forums are bound to follow the decision as precedent. Contrary decisions, of coordinate benches can create confusion for lower forums. Another major disadvantage is that if a strict interpretation is given to this doctrine, and precedents are considered to be binding even on the highest forums, it may hinder the development of law which is necessary with changes in society. Stare decisis is not meant to be an inflexible rule that hinders the development of law.

The Supreme Court appears to have taken this view in the Mirzapur Moti Kureshi Kasab case that while stare decisis is ordinarily to be adhered to, precedents can be reconsidered in view of changed circumstances where there are compelling reasons to do so. Thus, while the doctrine of stare decisis should generally be adhered to, the same should not be interpreted in a manner as to hinder the development of law and the correction of erroneous decisions. At the same time, the power to reconsider decisions cannot be given forum and thus, it is appropriate that the power remains with higher forums to the court that rendered the decision.

Formatted on 26th February 2019.


[i]V.D.Mahajan,jurisprudence and legal history56-58(5thed.2008)

[ii]Bryan A. Garner, black’s law dictionary( 9th ed. 2004)

[iii]William M. lile, Brief Making and The Use of Law Books  ( 3rd ed. 1921)

[iv]Id at 2

[v]Rupert Cross and J.W. Harris, Precedent in English Law 100-01 (4th ed., 1991).

[vi]Glanville Williams, Learning the Law 67-68( 9th ed. 1973)

[vii]Williams,Supra note 6,at 78

[viii]Richard Posner and William Landes, Legal Principle: “A Theoretical and Empirical Analysis”,  19 L.J.251,38-39 (1976)

[ix] W.G.Miller, The law of jurisprudence200-206( 8th ed.1982)

[x]Id at 9

[xi]Salmond, John William , Jurisprudence: The Theory of the Law 89-95(2d ed.1907)

[xii] Precedent, available at visited Feb 28,2014)

[xiii] Randy J. Kozel,The rule of Law and the perils of Precedent,Michigan L.Rev,(1965

[xiv]Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)

[xv]M.A.Murthy v.State of Karnataka AIR 2003 SC 3821, (2003) 185 CTR SC 194

[xvi]M.P.Jain, Outlines of Indian Legal & Constitutional History 86-88(6th ed.2010)

[xvii]Randy J.Kozel,Stare Decisis as Judicial Doctrine,Duke L.J.,48-50

[xviii]Id at 17

[xix]Paul M.Perell,Stare decisis and techniques of legal reasoning and legal argument,L.J. 25-27(1987)

[xx] “Appeals.” Online:

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