THE TRAVAILS OF STARE DECISIS IN INDIA

increasingly strains credibility even to acknowledge the historically undeniable

English vintage origins of the system. Among the prime casualties has been the
doctrine .(if one may so call it) of stare decisis, to be understood in all the
3 vibrancy which Julius Stone's life work demonstrates.
The rejection of this doctrine seems almost to be a kind of tissue rejection of the
The Travails of Stare Decisis in India English legal cultural transplant, intended lo ensure survivaJ by some means other
than engrafting. Or, to vary the metaphor somewhat, we are witnessing a process of
'de-reception'.4
Upendra Baxi Thjs phenomenon presents us not merely with the standard, and even routine,
scientific problems of description, analysis an.d explanation. More importantly, it
generates an insistent demand for re-examination of the received apparatuses of
Introduction
jurisprudential analysis of the judicial process. No doubt, the many intractable
problems of judicial choice-making, and the many sources of leeways for judicial
Those who know Julius Stone may entertain the affectionate suspicion that, choice,5 exist in every society. But most theorising abou.t the common law
among his rnaoy-splendoured contributions to contemporary jurisprudentiaJ judiciaJ process has emanated from the 'older' and more developed
thought, he himself woulp wish that his analysis of the judicial process and of legal Commonwealth societies, and from the United States. This theorising provides
reasoning be forever cherished and enriched. He pursues the complexities of the our descriptive models of the judicial process; it also provides us with normative
judicial process with a special enthusiasm which he has never failed to model..s, prescrioing what judges ought to do, and indirectly what jurists should
communicate. Indeed, through his diagnosis of 'categories of illusory reference',1 do in evaluating the judicial frocess. Cardozo's deathless generalisations;6
he has pursued the twists and turns of rationes decidendi with a dedication and Holmes' aphoristic illuminations; Stone's masterly analyses of change and
excitement which would be the envy of many a veteran practitioner of Rubik's stability in and through the judicial process;8 Dworkin's fascination with a
Cube. Herculean judicial process/ Wechsler's 'principled' adjudicatioo;10 and Bickel's
Stone's analysis of the judi.cial process relates principally to the common law, in canonisation of judicial restraint11 - all these assume, at any rate for
its 'old' British Commonwealth and American milieu. The analysis has had as its societies in the Ang.Io-American orbit, that a universaJ mode of description and
background relatively stable political cultures and instituti.ons, and a history of the prescription for the judicial process is both feasible and necessary. But is this
growth of adjudication as a 'semi-autonomous field'2 within the political economy assumption fully justified? Can we apply the same models of juristic and judicial
of liberal industrial capitalism.3 In many post-colonial 'developing' societies within craftsmanship·to the diverse decisional needs of ex-colonial developing
the British Commonwealth of Nations, we naturally find distinctively different societies? Is there, indeed, a theory of common law adjudication with which one
mil..ieux. Often, upon the attainment of independence, these societies display may easily begin to explore the judicial process in $uch societies?
marked i.nsti:ibility in political cultures and institutions, and a coexistence of This essay attempts to substantiate the need for raising such questions. It does
economic development with the increasing pauperisation of the masses. Moreover, not answer them. And it focuses, diagnostically, on no more than a slice of the
the colonial interaction had brought to some of these societies non-indigenous reality of the Indian judicial process - at the level of the Supreme Court, and that,
patterns of the growth of adjudication; and these patterns, originally imposed, had too, mainly in the domain of public law jurisprudence. Even at this level, I offer no
gradually begun to wear the visage of indigeneity. comprehensive description of the process, but seek only to indicate some
Despite this, many developing societies in the Commonwealth of Nations are qualitative data. Within all these limits, this essay at least seeks to substantiate the
moving towards their own distinctive legal cultures and institutions. They still hypothesis of 'de-reception' of stare decisis in India, and to explore some specific
preserve the trappings of the imposed legal systems, and render periodic obeisance institutional and cultural reasons which might account for this phenomenon.
to historical continuity by maintaining cosmopolitan (and sometimes cosmetic)
jurisprudential Linkages with their 'mother' countries. Underneath all the
appearances, however, lies a distinct rejection of many aspects of the legal The Jurisdictional Setting
inheritance. What actually emerges as a result of this rejection is not always fully The Supreme Court of India stands at the apex of the judicial system, the
identifiable; but the profile of what is being rejected is becoming tolerably clear. appellate layers of which comprise nineteen High Courts. No fewer than 23 of the
The contemporary lndian judicial process is a good case in point. The lndian 395 Articles of the Constitution provide in embarrassing detail for the structure and
Supreme Court, at the apex of nineteen state High Courts, gives the ready functions of the Supreme Court, which is staffed by seventeen associate justices and
impression of a flourishing judiciary working broadly within the Anglo- the Chief Justice of India.12 The justices are appointed by the President, upon
American legal and juristic culture. The language of the law at the appellate level whom the advice of the Council of Ministers is always binding. They are chosen
is English; and the judgments handed down in Lodian couns are deceptively mainly from among the justices of the High Courts. Members of the bar and
suffused with liberal cosmopolitan jurisprudential borrowings. But the distinguished jurists are also eligible for elevation. But only two justices in the last
approaches, habits, styles and resuJts of judiciaJ workings are entirely Indian - 32 years have been drawn from the bar; and apparently, in the opinion of the
to a point, indeed, where it
35
34
 •. ··

LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
constitutional authorities, there has still emerged no 'distinguished jurist' who can The De-Reception of Stare Decisis
be appointed as a justice.13 The associate justices are to be appointed by the
President in consultation with the Chief Justice of India. Until 1973 the seniormost Article 141 of the Constitution commands: 'The law declared by the Supreme
associate justice had invariably been appointed Chief Justice; but now the Court shall be binding on all courts within the territory of India.' Article 144
President may appoint as Chief Justice any justice, or indeed anyone (including a explicitly directs all 'civil and judicial' authorities in India to 'act in aid of the
lawyer and a distinguished jurist). 14 Supreme Court'. The ex'Pressio.n 'law declared by tbe...Court' indicates a
touching veneration for Blackstonian notions. It has, however, been recognised
By convention, the Indian Supreme Court justices have been drawn as far as that the Court creates the law which it then declares.25 Not merely does it
possible from all regions in the country; invariably the Court has a Muslim, and legislate from time to time; it has also, ineluctably, begun to participate in the
since 1981 also a member of the 'scheduled castes' community. The justices exercise of administrative power.26 But what really makes the Court urtique in
superannuate at the age of 65; some, indeed, have had a very brief tenure on the contemporary annals is the fact that it also exercises constituent power.27 In other
Court. On a guesstimate, about eighty per cent of Supreme Court justices have had words, it has exercised judicial review not only over legislation subordinate to
an average tenure of less than four years. From 1950 to 1981, the Supreme Court the Constitution, but over amendments to the Constitution itself - and has in fact
had seventy justices, and sixteen Chief Justices.15 invalidated some amendments. In India, remarkably, both Parliament and the
The Court has a wide-ranging jurisdiction. It is endowed with original and Supreme Court have become constituent assemblies in permanent session.28
advisory jurisdiction; it aiso has appellate jurisdiction in cases involving 'a Be that as it may, Article 141 confers some sort of constitutional recognition
substantial question of law as to the interpretation of [the] Constitution',16 or a of the doctrine of stare decisis. Naturally, questions have arisen in High Courts
substantial question of law of general importance in civil matters.17 It is endowed as to what law was declared by the Supreme Court. In its actual operation, the
with appellate criminal jurisdiction.18 In addition, it has wide-ranging jurisdiction 'binding'
to enforce fundamental rights under the right to constitutional remedies, which is _provision has become at the same time a liberating provision. The High Courts not
itself a fundamental right.19 Finally, under Article 136 of the Constitution, it has merely have to determine what law has been declared by the Supreme Coutt;
overarching jurisdiction to grant special leave to appeal 'from any judgment, they have also to determine - assuming the determination of a binding ratio -
decree, determination, sentence or order in any cause or matter passed or made by whether the obiter dicta of the Supreme Court are binding. The standard practice
any court or tribunal'. This last is a truly extraordinary discretionary jurisdiction, is to regard the considered dicta as binding, but not the casual dicta. 29 Of course,
virtually empowering the Court to decide, from time to time, its own jurisdiction - it remains for each High Court to decide what is a binding ratio, and which set of
and the discretion is always exercised through two-judge benches, sitting at the obiter is to be considered 'considered' or 'casual'.30 All this provides grist to a
beginning and end of every week. Much of the Court's work is carried on by three jurisprude's mill, but serves other interests as well: it fosters specific clusters of
- and five-judge benches; seven-judge benches sit occasionally.20 The Full Court technological competence and courtcraft, furthering the material interests of a
has met only twice in the last 32 years.21 cross-section of the bar.
The Chief Justice of India possesses enormous powers - and not only in terms of Of course, High Courts advert to, and purport to follow, the 'binding' Supreme
the formation of benches, which is in his virtually untrammelled discretion. The Court decisions. But how such decisions are 'followed' depends on the crucial
Chief Justice is a preeminent figure in appointments to the Supreme Court and the variables of the creativity and craftsmanship of the 405 High Court justices. At the
High Courts, and also in transfers of High Court justices from one state to another. same time, these variables also affect the course taken by the eighteen Supreme
Court justices in 'declaring law' which is constitutionally binding on all other courts
The entire judicial system is reeling with arrears: as of March 1981, as many as in India.
six hundred thousand matters were pending in the various High Courts, some going It is at this point, on which all else rests, that we find virtually Einsteinian
back as far as a decade. The Supreme Court also has a growing incidence of arrears, relativity reigning at the apex court. Quite wisely, the Supreme Court has
the latest available figure being well over fifty thousand matters. It has been reaffirmed its power to overrule its own decisions. 31 Exercised wisely and well, that
estimated that to meet the arrears at the Supreme Court, one would need as many power is an important aid to the preservation of the appearance of stare decisis -
as seventy-five to eighty justices.22 In the past two years, the Supreme Court has thus imparting legitimacy, overall, to the creative aspects of the judicial process. In
been remarkably hospitable to social action (or 'public interest') litigation, which other words, auto-overruling - in certain contexts and through certain procedures
has brought to its doorstep the most dispossessed and deprived sections of Indian (for instance, a larger bench) - is an integral part of the stare decisis system, as it
society: bonded labourers, tortured prisoners, urban poor, landless labourers, operates in India and perhaps in most jurisdictions.32 And from time to time
women and juveniles in total institutions, and others - many of them victims of Supreme Court justices do engage in self-conscious articulation of the need to
excesses of power and governmental lawlessness. 23 The Court has now explicitly follow precedents in the interests of stability and justice.33
granted locus standi to public citizens and groups to approach it with the problems
of the voiceless and exploited peoples. It has also developed what might be called On the whole, however, it has rightly been said that Indian Supreme Court
an epistolary jurisdiction: a simple letter concerning these peoples and complaining justices lack 'precedent consciousness'.34 Moreover, the Court has developed a
of a violation of fundamental rights is considered equivalent to a writ.24 While this repertoire of techniques for de facto overruling. There have been activist justices
is a welcome addition to the workload of the Court, it is bound to increase it further who have simply refused to cognise a prior decision if it represents an obstacle to
- along with the galloping rate of routine or standard litigation. the path of justice.35 And, while this is somewhat understandable, the
not-so-activist justices have also tended to give short shrift to precedents. Nor have
36 they bothered themselves too much with efforts at distinguishing cases.36
37
 LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
Sometimes a justice assigned to write an opinion for the Court adopts as its opinion
what was previously his own one-person minority opinion.37 The justices are also power was limited by the 'essential features' of the 'basic structure' of the
not averse on occasions to invoking what was only a dissenting opinion by some of Constitution. He accordingly invalidated the amendment on the ground that it
their brethren, and using it - with no attempt at justification - as supplying the violated the rule of law and democracy, both aspects of the 'basic structure'
doctrine.46
'gravitational force'38 for the instant decision.39 There has been at least one
instance of a leading case being completely misquoted and misunderstood by a Justice Khanna went on to clarify his own opinion in Kesavananda, since there
succession of Supreme Court justices - introducing, in the process, incorrigible was 'controversy· at the bar as to whether he had laid d0wn that the 'fundamental
distortions of a matter no less vital than the scope of fundamental rights.40 rights' set out in Part 111 of the Constitution are not a part of the 'basic slructure·.
Moreover, there is growing evidence of pure inadvertence. Quite often, differently His position as he now clarified it was, in effect, 1·har certain of the 'fundamental
constituted benches of the Court simply overlook prior relevant decisions: a kind of rights' are a part of the 'basic structure'.47 But this clarification introduced almost
collective judicial amnesia overwhelms the bench and the bar.41 fatal inconsistencies into his original Kesavananda position - and Ke.ravananda
was a 6:648decision, on many aspects of which Justice Khanna's seventh opinion was
The Techniques of Subversion de isive. "!'hi }ntin?my survive .Justi?e Bhar.'.ati's solo att mpt to resolve it !n
Mmerva Mills. Justice Bhagwat1 s rationale5 was that Justice Khanna had laid
As if all this were not enough, over a period of time the Court has developed down the law correctly. but that he himself had then misapplied it in the self-same
certain specific techniques subverting the notions inherent in stare decisis. These decision: such misapplication does not, however, make the enunciation of the law
involve techniques of retroactive dissents; retroactive clarification and incorrect!
amplification; reliance on concessions made by counsel; contradictory
concurrences; conversion of advisory_opinions into 'binding' law; and 'summaries'. Similarly, in Shiv Kam Shukla,51 during the 1975-77 emergency, tbe Supreme
Each of these needs brief separate mention, as illustrative of Indian judicial 'habits' Court held unanimously that citizens had no locus standi to move the Court for any
which are likely to grow in size and complexity in the future. relief by way of enforcement of the 'fundamental right' to life and personal l'iberty
- a right suspended during the emergency- even on t:he ground that 'the order is
Retroactive Dissent not under or in compliance with the Act or is illegal or is vitiated by malafides
factual or legal or is based on extraneous considerations'.52 This order was clearly
A notable instance of explicit retroactive dissent by a judge from his own earlier at variance with the reasoned elaboration to be found in the opinions of Justices
view is that of Chief Justice Hidayatullah in Shanti/al .42 He dissociates himself Beg, Cbandrachud and Bhagwati, as well as in that of the solitary dissentient,
from his concurrence in Vajravelu,43 a 1964 five-judge decision holding that Justice Khanna.5'.\But the order was unanimous. The result was cruel for
acquisition of property did not violate the immunity (under Article 31(2) of the thousands of detinues incarcerated during the emergency. ln 1978, after the
Constitution) from expropriation without ju.st compensation. With refreshing emergency was lifted, Chief Justice Beg offered a clarification. He explained that
judicial candour, he says that the reasoning in a pre-constitutional case (involving the order of the Court was 'rather loosely and \'aguely expressed'; that it was
the interpretation of a provision of the Government of India Act 1935) got mixed 'inaccurate' and 'misleading·; and that he himself would have clarified it in 1976
up with Vajravelu, a case under the Constitution. He also now characterises the on a motion to review.54 This clarification was issued by one of the five justices -
observations on Article 31(2) in Vajravelu as obiter, since the statute in that case four of whom were still on the Court - without consultation with them a·nd
was held valid - overlooking the fact that it was so held on a strict application of without protest by them.
the principles there enunciated. The result simply is tbat, after a full five years, the
Vajravelu decision is reduced from a unanimous decision to a 4:1 decision! And the
five-judge bench in Shanti/al - a bench of coordinate status - simply repudiates Not Proceeding to Judgment in the Light of Concessions
the Vajravelu holding.
In many crucial cases, the Supreme Court has developed a tendency to deliver
Retroactive Clarification and Amplification• elaborate opinions. logically requiring the invalidation of a statutory provision or
administrative action; and yet to avoid this outcome by relying on concessions and
The most notable example of the use of this technique is provided by Justice undertakings given by counsel for the state. This inflicts upon the 'reasoned
Khanna in Indira Nehru Gandhi v Raj Narain.44 Soon after the imposition of the elaboration' in the opinion a nebulous status far removed from any strict notion of
state of emergency in 1975, parliament amended the Constitution to provide that ratio decidendi. The most far-reaching use of this technique is to be found in
the election of the Prime Minister should not be questioned in any court; the Marieka Gandhi,s.. where the petitioner's passport had been impounded without
election petition, if any, against the Prime Minister should abate; no law relating to her being given an opportunity of being heard. In a decisi0n which in effect
election petitions should be deemed to apply to the election of the Prime Minister; introduces 'substantive due process' into Articles 19 and 21 0f the Constitution (a
such election should not be deemed to have been void or ever to have become void; notion which had been carefully exorcised by the Constitution-makers under the
all appeals and cross-appeals before the Supreme Court should abate; and, finally, spell of Justjce FTankfurter's advice),56 the Court, instead of invalidating the
no law which might be made to resolve disputes involving the Prime Minister statute or the administrative action, accepted the concession given by the
should be questioned in the courts. Justice Khanna, along with three other justices, Solicitor-General that the petitioner would be given a post-decisional hearing.
invoked the doctrine enunciated in Kesavananda45 - that parliament's amending
Examples of this way of proceed.ing abound.57
38
39
 LEGAL CHANGE THE TRAVAILS OF STARE DECISIS IN INDIA
Contradictory Concurrences
some 'fundamental rights'; that it entails a delegation of the amending power to
Unusual difficulties for any systematic application of stare decisis are also caused provision, declare it wholly invalid for the reasons that it permits abrogation of
by the tendency of justices to agree with brother justices whose opinions do not
40
agree inter se! In Kesavananda, Justice Beg concurred with the opinions of Justices
Ray, Mathew and Dwivedi. Two of these, Justices Ray and Dwivedi, held in effect
that there was no fundamental right to property, and hence that the illusoriness of
compensation was not open to judicial review. Justice Mathew did not go so far: he
left open both the illusoriness of compensation, and 'fraud on the Constitution', as
possible grounds for judicial review. In counting the justices' votes or positions -
on a fundamental issue affecting the nature of the constitutional polity - one is
thus confronted with the choice of ignoring Justice Beg's opinion altogether, or
splitting his opinion mathematically and assigning fractions of his vote!58 Eight
years later, a similar situation arose in the crucial case involving the independence
of the Indian judiciary, where Justice Faz! Ali concurred with two justices who did
not wholly agree inter se.59
Advisory Jurisdiction
The Supreme Court's advisory jurisdiction (exercised upon a reference from
the President) has led to a situation where pronouncements made in advisory
opinions are regarded as binding on the High Courts, though it is doubtful
whether Article 141, making the 'law declared by the Supreme Court...binding
on all courts', can validly be read as including the 'law' declared in a mere
advisory opinion. In the most recent reference on the Special Courts Bill60 -
passed by the Janata regime to prosecute emergency excesses - the Supreme
Court went beyond the question of the validity of the bill, and made suggestions
for amendments which were accepted by the Attorney-General. The bill, as thus
hypothetically amended, was then declared constitutionally valid. And Chief
Justice Chandrachud also opined that this holding should be treated as binding
on the High Courts, since it was an exhaustive examination of the legal position;
and it would be 'deeply frustrating' if for technical reasons the determinations in
the opinion were to be regarded, on a traditional approach, as not binding on
the High Courts.6t
'Summaries' v 'Precedent
A central issue in Kesavananda was the constitutional validity of the twenty-fifth
amendment to the Constitution, by which, in 1972, Article 31c was added. The
intention of the amendment was that certain aspects of the 'fundamental rights'
set out in Part III of the Constitution should be subordinated to certain aspects of
the 'directive principles of state policy' set out in Part IV: specifically, to the
economic policies set out in Article 39(b) and (c). Article 31c has two
components. The first declares that no law giving effect to the 'directive
principles' embodied in Article 39(b) and (c) 'shall be deemed to be void on the
ground that it is inconsistent with, or takes away or abridges', any of the rights
conferred by Article 14, 19 and 31. The second part of the Article provides that 'no
law containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to
such policy'.
Analytically, these two components of Article 31c should be viewed discretely.
But a majority of justices in Kesavananda treat Article 31c as one unit in
pronouncing upon its validity.·Thus, five justices (Chief Justice Sikri and Justices
Shelat, Grover, Hedge and Mukherjea), viewing Article 31c as one single
state legislatures; and that the ambit of Article 39(b) and (c) is so wide that
even a limited judicial review of the nexus between a legislative declaration,
and the policies of the 'directive principles', could not redeem Article 31c of
its major constitutional vice. On the other hand, the other group of six judges
(Justices Ray, Palekar, Mathew, Beg, Dwivedi a·nd Chandrachud), also
considering Article 31c as a whole, held it valid, rejecling each one of
the arguments just stated.
We reach a score of eleven judges ruling upon rhe validity of Article 3lc
as a whole. Two other judges proceed differently; each of them rules
separately upon the first half and the second half of Article 31c. On this basis
Justice Jaganmohan Reddy upholds the first half (after severing the reference
to Article 14); he denies validity to the second half aJtogether. Justice
Khanna upholds the validity of the first half in its enti.rety; he too strikes
down the second half.
How is one to comprehend what the Court has decided? The Order of the
Court is altogether silent on all substantive points; a 'summary' signed by nine
of the thirteen judges (excluding Justices Ray, Mathew, Beg and Dwivedi)
declares categorically that the 'first part' of Article 31c is valid and the
second part invalid. The summary purports to state 'the view of the
majority in these writ petitions'.62
Weighty objections have been made to the legal status of this 'summary'.
HM Seervai has pointed out that the summary could not purport either to lay
down the ratio decidendi of the case, or to be regarded as an obiter dictum. It
cannot be regarded as constituting the ratio, because four judges did not sign
it - testifing to a difference of opinion in the Court as to what the Court had
precisely held. 3 Nor, he argues, can the 'summary' be treated as obiter -
because obiter dicta ought to comprise 'considered observations' made by a
judge, even though they are strictly unnecessary to his decision.
Yet if the 'summary of conclusions' is to be disregarded for all
purposes, how is one to arrive at a determination of what the Court
decided concerning Article 31c? It is instructive to follow Seervai on this
point. He tries to discover the ratio on this aspect by following two
alternative theories of 'the ratio decidendi of a case': first, that the
conclusions constitute the ratio of the case, and, second, that the
underlying reasons constitute the ratio.
On both these approaches, Seervai concludes that since ele en of the
thirteen judges considered Article 31c as a whole, the Article as a whole has
been held valid by a 6:5 majority. Severability was not argued at the bar, says
Seervai: moreover, five judges (Chief Justice Sikri and Justices Shelat,
Grover and Mukherjea) were by necessary implication opposed to
severance, and so were the remaining six judges. Hence there is 'no majority
for severability'; or 'such majority as there is, sub silentio is against it'.64
Because of this, he further maintains, one cannot conclude that the first half
is valid 7:6 and the second half invalid 7:6. This would involve distributing
the votes of the two judges who adopted the severability technique - a
technique to which eleven judges were, by necessary implication, opposed.
Besides, any attempt thus to apportion votes would involve us in speculations
of an impermissible nature as to what the eleven judges would have held if
they had had recourse to severance.65
Seervai concedes ·that 'the theory of precedent laid down by the Supreme
Court is in an unsatisfactory state', 66 and urges that the Court rectify it.
Anyone familiar with the theoretical literature on the ratio decidendi will
have considerable admiration for his attempt to trace the ratio as to Article
31c, and considerable sympathy with his difficulties. But, to the
cognoscenti, Seervai's appeal to the
41
 LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
Court to evolve a theory of precedent which will somehow work in a case like
Kesavananda (or indeed in more routine cases) will sound naive. Such a theory is the manner in which a particular Bench is constituted'.76 And since the
simply not analytically possible; and it is a mistake (with respect) to think that constitution of benches lies solely within the prerogative of the Chief Justice, the
where eminent jurists fail to systematise the 'holding' of a case, eminent judges will career of a particular line of precedents may well depend on the orientation of the
somehow succeed. Chief Justice, and on his assessment of his brethren's support for his own line of
thinking.77
The fact remains that even as we attend to the eleven judges who tackled
Article 31c as a whole, we cannot ignore the two judges who severed it. So, also, The reasons for the relentless growth in Supreme Court workload are many.
the fact cannot simply be ignored that nine judges - including Justices Palekar Ultimately, their location and interpretation leads one to an inquiry into tbe
and Chandrachud - signed the 'summary', but that four did not. We are thus not political economy of lndja. Clearly, in its 'fundamental rights' jurisdiction,78 its
entitled completely to ignore the opinions of Justices Jaganmohan Reddy and original jurisdiction,79 and its task of interpreting tl1e scope of the central
Khanna, who severed Article 31c; nor are we permitted to ignore the fact that parliament's power to amend the Constitution under Article 368,80 the Court has
four judges did not sign the 'summary'. But this is what Justice Bhagwati, at least, frequently been invoked as an instrumentality through which political opposition in
has done in Minerva Mills.67 India can raise its voice or make itself heard- or,sometimes, overcome the real or
perceived tyranny of the majority in power.81 ln other words, in all these areas,
the Court is activated as an alternative centre of political power in a democracy
The Sources of Tension largely under one-party leadership.82 Further, while the phenomenal growth in the
The foregoing illustrates the vicissitudes of stare decisis in the Indian Supreme last decade in administrative law testifies much to indigenous judicial
Court. The recourse to a variety of unconventional
68 techniques can be explained craftsmanship as well as creativity, it also testifies to a corresponding growth
of administrative
deviance in the government, which has by now built into its decisional apparatuses
partially by reference to many factors. Perhaps the foremost among these is the a 'fly now, pay later" approach.83 In addition, the raJ?id growth of sociaJ action
growing rate of increase in the workload and the arrears of the Supreme Court, ( 'public interest') litigation since the emergency also testifies to concern by the
which shows no signs of respite and in fact threatens to grow even further.69 The Court and the people with increasing manifestations of govemmenlaJ lawlessness i:n
rate of institution of proceedings in all types of litigation is rapidly increasing: for India.84 Only an adequate theory of litigation - unfortunately yet to develop·
example, as against 7,979 matters instituted in 1971, there were 14,501 matters could help us explain the complex interlocking sets of factors responsible for the
instituted in 1977.70 The Court inherited 7,104 fending cases in 1971; by 1978 the expanding invocation of the Court's jurisdiction.
inherited arrears were in the vicinity of 18,215.7 Although the Court rejects about
sixty per cent of the applications in its extraordinary jurisdiction by special leave, it But, given the factors suggested above, it must be clear that the Court's
does admit a substantial number of matters. In the period from 1 January 1971 to 1 perception of injustice, and the lack of (or resistance to) constitutional claims of
May 1978 'the Court granted leave in 9,706 cases out of 25,423 cases (i.e., 38.027% accountability by other centres of power, must to some extent or other condition
cases) in civil cases and 2,494 out of7,806 in criminal cases (i.e., 31.95% cases)'.72 many judicial minds towards concern primarily with the substantive rather than the
It is doubtful whether any other apex Court has such a large, and ever increasing, formal rationality of the law and judicial power. To the extent that this tendency
workload. In addition to the inherent strains on an apex Court which must proliferates, respect for precedent as a technique for doing justice may appear to
theoretically serve the needs of a population of 700 million people, one may see be of rather limited significance. •
operative here a tendency_ towards 'jurisdiction hunger'. This same set of factors might also explain the steady growth of tendencies
towards eclecticism and judicial activism on the Court. The former judicial style is
Such high pressure of work is bound to take its toll of the craft of stare decisis. manifest in a lack of consistency in judicial postures, whether on the side of
One must add to this other institutional features of the Court, such as the high substantive values in 'reasoned elaboration',85 or on the side of craftsmanship. In
turnover of the justices themselves. In a period of 32 years, as already noted, the other words. eclecticism as a judicial decisional stance involves, by definition
Court has had seventy justices and sixteen Chief Justices of India. Such a state of recourse and non-recourse to precedents, depending on the needs of a given
flux is hardly conducive to the orderly maintenance, and transmission, of the decisional situation; or selectjvity in the recognrtion and derecognition of
culture of stare decisis. precedents.
And the Court normally sits in benches of two or three justices. Division benches Juristic 'activism' often combines with 'judicial restraintivism' on the Supreme
of five justices sit only to hear constitutional cases, and matters involving Court to weaken stare decisis even further. By the former term, l mean in this
'substantial questions of law'.73 Seven-judge benches are not frequently context the introduction and elaboration of new ideas and conceptions, without at
constituted; and only on two occasions in the Court's lifetime has it met as a full the same time actually using these in deciding the case at hand. Tbe ideas and
court with all justices sitting togetber.74 The experiment with seven-judge benches conceptions thus introduced are therefore, by definition, not necessary for ttie
to decide the constitutional validity of legislation of the central government - instant decision. They are intended for future c.reative use, by bench and bar,
introduced by the forty-second amendment - gave rise to sharp protests from the should the occasion arise. We can now readily perceive the sources of tension: in
bar and from the justices themselves at the cumbersomeness of the procedure; and such a case the decision (or the agreement with the decision) is'restraintivist' in
soon after the emergency the amendment was nullified.75 This system of fluctuating essence, but the reasoned e-laboration supporting it is 'activist' in essence. The
bench structure makes the outlook for'fidelity to stare decisis problematic: it has impulse to use new juristic material to justify the ilistant decision has to be carefully
rightly been observed tha1 'in India, the authority of an earlier case may depend on inhibited, but the inb.ibitfon itself cannot be a total one: the impulse needs an
42
43
 · -:·,------,., -:""--,-J'

LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
outlet. Besides the immediate effort to provide this outlet in a satisfactory way,
there is the pressing need to supply the stance of juristic 'activism' with a cogent ·court's accumulated wisdom is often available to the Court itself in only a partial
and fragmented manner.
justification. And the act of justification itself creates an additional source of
tension and inner conflict if the judge is consciously and conscientiously following a Increasingly, also, the bar is becoming a legally illiterate profes,sion - in the
legp.listic (rather than an 'eclectic') model of craftsmanship. How, for example, is sense that few lawyers have a real grasp of the evol.ution of the Jaw i.n a variety
such a judge to deal with 'precedents' that run counter to everything he wants to of fields,96 or of the finer points of judicially evolved docrrines and
expound? He is in no position to 'distinguish' or 'overrule' them, since he is aware conceptions."7 This illiteracy is not without a kind of dynamic quality: the bar
from the outset that he is manifestly introducing new material through massive contin'Ues to develo£ a surprising variety of ways of remaining indifferent to
obiter dicta: indeed, he will often be at pains to make it clear that this is how his soUices of juristic learning. Lawyers complain of judicial prolixity and
opinion has to be read. But if he is to leave the relevant precedents aside grandiloquence; lhey also confess semi-publicly that they often do not gee the
altogether, this choice may tend to defeat the very enterprise of imparting the new ti.me to read such major decisions as rhose in Kesavananda or in the High
ideas and techniques which he is so painstakingly incorporating in his opinion - for Court Judges' Case, where the justices' opinions run to eight or nine hundred
it virtually invites a dissenting judge to expose the 'activist' endeavour as a glaring pages. (Some justices do Likewisel)99
example of unsound analysis and undesirable policy. If this happens, the judge lt is a sad but striking feature of the Indian bar as a whole that it fails to keep
indulging the juristic 'activism' may feel apprehensive about the dissemination and abreast of the decisional output it ge.nerates. And the practice of citing all adverse
acceptance of his ideas among the different communication-constituencies to which precedents in briefs, and proceeding to criticise them, is almost conspicuous by its
his arguments must be addressed. He has thus to rebut at least the overt or covert absence. The English conception of lawyers as officers of the Court, trying to assist
allegation of judicial adventurism; and this further aggravates his problems of their clients in such a way as also co assist the Court in the full achievement of its
trying to justify 'activism'.86 duty to render justice, is almost reaching its vanishing point in the profession of law
The perception by the people and by the Court of increasing lack of in India. In such a situation, the bench may not be able to expect meticulous
responsiveness to their expectations of a minimally just administration has also led adherence to precedents by the bar; the bench itself may also be unable to achieve
to the growth of judicial activism and judicial populism, both in their own ways such adv rtence unaided. A few justices have sought to deal with the problems by
inimical to the growth of a culture of stare decisis. In the last decade, activist invoking the device of juristic 'activism', in the sense noted earlier, using their
justices - those who use judicial power to fight lawlessness and injustice - have opinions 10 provide capsuled information about the state of the art in the releva·nt
ended up by becoming also populist justices, in terms of both creativity and areas of decisional law! A kind of didactic jurisprudence, involving Supreme Court
craftsmanship. Populism87 is an aspect legitimating activism; 88 and activism is justices in addressing themselves to multiple communication-constituencies, has
increasingly being perceived as necessary to legitimate the Supreme Court's been growing over the years.100
authority against sharp, predatory and often crude attempts at demoting it from its
Certainty and Development
high place in the constitutional scheme and vision. 89 Activism and populism have
together taken the Court in directions which will forever remain controversial: in FinaUy, withou.t being exhaustive, it appears thar neither the value of certainty
the name of justice to the people, the Court has abandoned its 'hands-off' approach nor that of finality has a very strong appeal to justices of the Supreme Court of
1
10 involvement in prisons'i/( and related total institutions; in the creation and India, especiaJly in the last two decades. Yet these are the very values which
distribution of public largess;"' and in affirmative and temporary takeovers of le:gitimate reliance on p.recedents, in any sense of that term, as a strategy of judicial
administration in manr social institutions such as universities,92 bureaucracies,93 decision-making.
and even High Courts9 and courts of trial and session.95 In th.is process, the system This aspect, too, may be undersrood in terms of the structural and political
of stare decisis must appear to many justices to be, if not a roadblock, then at best a pressures on the Court which were outlined earlier in this e.ssay. Yet, while these
factor of only marginal significance. pressures are important, they may not provide a full explanation, ejther. One has
to look beyond the immediate institutional setting, and take the volatility of law
itself into account. In 32 years the Constitution has been amended 45 times, and
The Role of the Profession has witnessed many crucial confrontations between parliament and the executive
In addition to judicial attitudes and behaviour, any attempt to grasp more fully on the one hand, and theoourts on the other. Underlying these events is a
the reasons for the transplant-rejection of stare decisis in India must refer to the 'developing' society in constant throes of transition, and a political and judicial
nature of the intermediation by the legal profession itself. The Indian bar, structure moving from the first to the second generation of leaders.hip.101 Most of
especially at the Supreme Court level, is basically a non-specialist bar. Divided into the new generation of political leadership has only a folk memory of the colonial
two strata - senior advocates who are 'arguing' counsel, and advocates on the past - and only a peripheral acquaintance with cosmopolitan (liberal or socialist)
record, who are preeminently filing·counsel - most lawyers at the Supreme Court ideologies of state and law. Judges, too, are deeply divided between those who
have had little opportunity to develop much sophisticated specialisation in selected regard continuity with the pasr as a duty- or at least, like Oliver Wendell
areas of law. They represent a kind of versatility in forensic ability, ranging over all Holmes,102 acknowledge it as a necessity- and those who are impatient for
aspects of law. This often tends to diminish the range of precedent information or change, and hence for the retooling of jurisprudence as a vehicle of change.
input they can make available to the judges: the process is one in which much of the Understandably, stare decisis as an aspect of the strategy for rea hing or
justifying decisions appears ambiguous aU round.
44 An even deeper underlying reason for the inadequate hold on certainty and
finality has been suggested by Duncan Derrett. He suggests that the Western
45
 LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
principle of 'majority decision' has 'no place in a hierarchic society as lndia was and 4 Stone has \lividly raised this kind of i sue by showing how Savigny·s insights on the European
remains'. 103 There persists, on this hypothesis, as a kind of cultural residue, a belief 'reception· of Romon law are relevant 10 the theory and practice or the.sociology or law. See
that a man's duty may not be determined 'by counting heads, even wise heads'.104 Stone. Provi11ce, 421-48; Sronc. Social Dime11sio1is. 86-118: and the essay by Edward
The very activity of litigation 'reflects a want of faith not only in the cold reality of McWhinney below. The importance of Stone's message has been grasped, albe-it implicitly. in
some recent explornt'ions of historical and comparative sociologies of law. A N Alloll. The Umits
the outcome which is (logically) certain, but in the referee's fitness to conclude the of law. Bullerworrhs. London, 1980. fmitfully conceptualises the problem as one of'tunslocaiion'
matter'.105 At times it seems that this attitude can be ascribed as revealingly to the of laws. and reception as a bilateral process o[ transmission between ·co[ nies· and 'mother
Supreme Court justices themselves as to the litigants and lawyers appearing before countries". The phenomenon of reception has also been percei\led as one of 'imposition' of law:
them. see Eorsi. 192-200, 562-9. And see S B Burman and B E Hnrrcll-Bond (eds). The lmpositio11 of
/..aw. Academic Press, NY. 1979.
The historicnl counterpoint of 'reception' may he designated as a 'de-reception· process: and the
Conclusion tools and techniques of legal reasoning provide a vantage-point for stud)'ing hoth 'reception' and
'de-reception'.
The contemporary Indian judicial tradition at the apex Court overwhelmingly 5 See the literature cited in note I above.
indicates a blurring of the line between adjudication and legislation, a line which in 6 See esp B N Cardozo, The Nature of the Judicial Process, Yale UP, New Haven, 1921; B N
the past was helpfully maintained by the invocation of stare decisis. In the process, Cardozo, The Growth of the Law, Yale UP, New Haven, 1924.
it seems that advertence to precedents in the Indian Supreme Court has acquired a 7 See M Lerner, The Mind and Faith of Justice Holmes, Modern Library, NY, 1943; J Willard Hurst,
distinctive character. Precedents seem to be looked upon not so much as an Justice Holmes on Legal History, Macmillan, NY, 1964.
authoritative exposition of principles, to be followed or departed from when the 8 See the citations in note 1 above.
interests of justice so require, but rather as functional equivalents of the lawmaking 9 R Dworkin, Taking Rights Seriously, Duckworth, London, 1977, 81-130.
process at different stages of judicial lawmaking. Precedents appear to be 10 See esp H Wechsler, 'Toward neutral principles of constitutional law· (1959) 73 Harvard LR I.
inarticulately conceptualised by many Indian appellate justices as providing a range 11 See esp A M Bickel, The Least Dangerous Branch. Irvington Publications, NY, 1962.
of alternative - complementary or conflicting- legislative proposals, from among 12 TI1e Supreme Coun began with six Justices and the Chief Justice of India. The number was
which choices may be made. In a sense, lawmaking judicial decisions have come to increased to 10 in 1956, 13 in 1960. and 17 in 1978, by constitutional amendment. However, at
acquire a status similar to that of parliamentary Hansards. the present moment, the Court has only 15 j11sticcs in addition to the Chief Justice; the two
positions created by the 1978 amendment have yet 10 be filled.
The heritage of the common law judicial process seems thus to have been
'13 The 42nd Amendment in 1976 provided for the appoint.mcnt of'jurists' to the High Courts as well.
transformed. The discipline of stare decisis -which had aimed at masking None wu appointed, and the provision was repealed in 1978. Contemporary India is-struggling to
judicial lawmaking from all but the Argus-eyed - has been, to a gr.asp the emergence of legal learning as a social force; the growth of nutonornous imellar:1,wl
considen1ble extent, subverted. The awesome assertion of legislative and even traditions in law poses challenges to the present well-crmenchcd tendency to regard successful
constituent power by the Supreme Court of India has made it, paradoxically, both practit.ioncrs end justices, and lawyers who wield political power (eg Law Minister!: and
chairpersons of Bar Councils). as 'jurists". Modern India is unique in insisting tha.t knowledge,
strong and vulnerable - strong in its capacity to assert its conceptions of learning and even wisdom arise ex officio! .
constitutional vision; vulnerable in its attempt to retain the bases of legitimacy
14 In !973 the ,eniority nrle was discarded upon the retirement of Sikri CJ: the three scniormost
necessary to the preservation of 'enclaves of justice'106 in a society judges were bypassed t·o make room for A N Ray a Chief Justice of lndia. These three judges
undergoing profound historical transition. rcs.igncd: so did H R Khanna when he was passed over in 1977. 'This phenomenon is known as
· upcri:ession· and has generated cntmnous public controversy. especially in view of the doctrine
of a 'committed judiciary' propounded by lndfra Gandhi"s government in and since 1973. See
generally Kuldip Nayar. S11per.rns.fio11 of Judges. lndin Book Co. ,New Delhi. 1\173.
NOTES 15 See G H Gadbois, ·Selection, background characteristics, and voting behaviour oflndian Supreme
Court judges, 1950-1959'. in G Schubert and DJ Danelski (eds). Compara1i11t: Judicial Beha11ior,
OUP, NY. 1969, 221,227; G H Gadbois, 'Supreme Court decision making' (1974) 10 Beuare,s U I;
See Stone, Province, 149-206; Stone, Legal System, 235-98; Stone, Social Dimensions, 652-96; J Rajccv Dhavan, The Supreme Court of India: A Socio-Legal Cri1/que of i1s J11ris1ic Tedmiques.
Stone, '1966 and all that! Loosing the chains of precedent' (1969) 69 Columbia LR 1162. Tripnthi. Bombay. 1977. 1-39.
2 CfS F Moore. 'Law and social change: the semi-autonomous social field as an appropriate subject 16 Constitution of India, art 132.
of study' (1973) 7 L & Society R 719. ln the present context the concept is extended by poetic 17 Constitution of India, art 133.
licence.,
18 Constitution of India, art 134. The jurisdiction arises where a High Court has certified that the
3 See M Rheinstein (ed), Max Weber on Law in Economy and Society, tr E Shils & M Rheinstein, case is a fit one for appeal, or has imposed a death sentence either after appellate reversal
Harvard UP, Cambridge, Mass, 1954; M Weber, Economy and Society [Wirtschaft und of a lower-court acquittal, or after withdrawing the case from trial in the lower courts.
Gesellschaft], ed G Roth & C Wittich, Bedminster Press, NY, 1968 (reissued, California UP,
Berkeley, 1978), esp vol ii, ch 8. The relative indifference in Julius Stone's work to Max Weber's 19 Constitution of lndin, art 32. See H M Seervai. Co,miwtiona/ Law of India: A Critical
thought on the sociology of the judicial process seems to me to be linked with his u·nderstandable 'ommeniar:,,. 2nd cdn. Tripat,hi, Bombay. 1975. 166-98; U V Baxi. 'Lnches and the rigtit \o
reluctance to evaluate stare decisis as an aspect of capitalist legal systems from the marxist constitutional remedie. : Quis custodief Ip.ms c1 t10dies?' in A Jacob (ed), Co,mi1111ia1tal
standpoint. See for a very recent analysis of the problem of the 'historical unhistoricalness and Dc11e/opmems since lndependru1ce (Indian Law lnstitute, New Delhi). Tripathi, Bombay. 1975.
559.
fiction' of stare decisis G Eorsi, Comparative Civil (Private) Law: Law-Types, Law-Groups, the
Roads of Legal Development, tr G Pulay, I Mora & E Lenart, Akademiai Kiad6, Budapest, 1979, 20 Gadbois. Compara1ive l11dici"I Bchavio,11·. The 42nd Amendment required seven-judge benches
111-34, 495-542. One may hope that in the near future Stone will contemplate intellectual for considcra1ion or Lhe constilulional validity or legislation passed by the central government; this
engagement with the radical critiques of stare decisis in particular and of bourgeois modes of legal was deleted by the 44ih Amendment. partly on the insistence of Supreme Court justices
reasoning in general. themselvei;! See the text accompanying note 75 below.

46 47
nn -.n11r"""".,,
 LEGAL CHANGE
THE TRAVAILS OF STARE DECISIS IN INDIA
21 In Go/ak Nath v State of Punjab, AIR 1967 SC 1643, and in Kesavananda Bharati v State of Kera/a,
39 See Baxi, Introduction to Mathew, Democracy, iii; and citations in note 29 above.
AIR 1973 SC 1461.
22 See Rajeev Dhavan, The Supreme Court under Strain: The Challenge of Arrears, Tripathi, 40 A K Gopalan v State of Madras, AIR 1950 SC 27. The misreading is cogently demonstrated by
Kailasam J in Maneka Gandhi v Union oflndia [ I978] I SCC 248, 372-3; AIR I978 SC 597, 682-3,
Bombay, 1978, 45. Dhavan's estimate (of a need for 56 judges to clear up the arrears as at 1971) has
been revised in the light of the present statistics. 41 See Baxi, Introduction to Mathew, Democracy, and citations in note 29 above.
23 Th.ii; explosion of cases concerned with the deprived and dispossessed since 1977 - but notably 42 State of Gujarat v Shanti/a/ Mangaldas [1969] l SCC 509, AIR 1969 SC 634.
from 1979 onwards - is the most heartening result of the growing 'populism' on the Court: see 43 Vajravelu Mudaliar v Special Deputy Co/lee/or for Land Acquisition, West Madras, AIR 1965 SC
note 26 below. I ascribe the origins of populism on the Court to the post-emergency catharsis, 1017.
and to the radicalisation of the upper middle class judicial decision-makers. See U V Baxi, The 44 [1975] Supp sec I, 114-7; AIR 1975 SC 2299, 2369-70.
Indian Supreme Court and Politics, Eastern Book Co, Lucknow, 1980; UV Baxi, The Crisis of
the Indian Legal System, Vikas Publishing House, New Delhi, 1982. 45 Kesavananda Bharati v State of Kera/a, AIR 1973 SC 1461.
24 See Bhagwati Jin IM Chag/a v Shivshankar [1981] 4 SCALE (Supreme Court Almanac) 1975, 46 [1975] Supp SCC at 114-7, AIR 1975 SC at 2369,70.
1983-98. 47 [1975] Supp SCC at 114-7, AIR 1975 SC at 2369-70.
25 See eg the observations of Mathew Jin Kesavananda, AIR 1973 SC at 1950: 'The judicial function 48 See PK Tripathi, 'Kesavananda Bharati v State of Kera/a: who wins?' [1974] 1 SCC (Journal) 3; U
is, like legislation, both creation and application of law The law-creating function of the courts is V Baxi, 'The constitutional quicksand of Kesavananda Bharati' [1974] 1 SCC (Journal) 45; P K
especially manifest when the judicial decision has the character of a precedent.' Tripathi, 'The most dangerous branch: the judiciary or the legislature?' (1974) 5 Lawasia l.
26 The Court has maintained continuing jurisdiction over the excessive pretrial detention of the poor 49 Minerva Mills v Union of India [1980] 3 SCC 625, AIR 1980 SC 1789.
in Indian prisons (see Baxi, Supreme Court and Politics; Baxi, Crisis), and over women detained 50 [1980] 3 sec at 669-71.
in 'protective custody': see Dr Upendra Baxi v State of VIiar Pradesh [1981] 3 SCALE 1136. To
mention some further examples, the Supreme Court has devised, and is monitoring, reliefs for 51 Additional District Magistrate, Jabalpur v Shiv Kant Shukla [1976] 2 SCC 521, AIR 1976 SC 1207.
'undertrials' blinded in Bihar; for chamras (untouchables) in Uttar Pradesh through schemes of 52 [1976] 2 sec at 778.
carcass utilisation; and for landless labourers in Punjab and Haryana losing limbs through accidents
or by faulty threshing machines. 53 See Baxi, Supreme Court and Politics, 79-110; HM Seervai, The Emergency, Future Safeguards
and the Habeas Corpus Case: A Criticism, Tripathi, Bombay, 1978.
27 Baxi, Supreme Court and Politics; see also UV Baxi, 'Some reflections on the constituent power',
54 In re Sham Lal [1978] 2 SCC 471, 485; AIR 1978 SC 489, 494-5.
in R Dhavan and A Jacob (eds), Indian Constitution: Trends and Issues (Indian Law Institute, New
Delhi),, Tripathi, Bombay, 1977, 121. 55 Maneka Gandhi v Union of India [1978] I SCC 248, AIR 1978 SC 597.
28 See for the most recent example of judicial review of a constitutional amendment Minerva Mi/ls v 56 See Granville Austin, 711e llld/1111 Constitution: Cornerstone of a Nation, OUP, Bombay, 1972, 66;
Union of India [1980] 3 SCC 625, AIR 1980 SC 1789. and the brief but poignant reminder by Chandrachud Jin Maneka Gandhi ([1978] 1 SCC at 327,
AIR 1978 SC at 616): ·Our Cons_l'itution too strides in its majesty but, may it be remembered,
29 See AR Blackshield, '"Fundamental rights" and the economic viability of the Indian nation, Part I: without the due process clause.'
Of precedents and progress' (1968) 10 J Indian L Institute 1; I C Saxena, The doctrine of precedent
in India' (1963) 3 Jaipur LJ 188; Dhavan, Supreme Court of India, 44-56; Seervai, Constitutional 57 In Indira Nehru Gand/ii v Raj Narai11 l19751Supp SCC I, AfR 1975 SC 2299, rouc justices (.Ray CJ
Law, 59-61; PK Tripathi, 'Foreign precedents and constitutional law' (1957) 57 Columbia LR 319. and Ma1hew. Beg and Chandrachud JJ), who had opined in 1973 in K.esavammda tha.t the
30 See the literature cited in the preceding note. The distinction is highly manipulable. First, one has ·constit11en1power knows no llmication at all, proceeded to invalidate the 39th Amendment on
to determine a or 'the' ratio of the Supreme Court's decision. Second, having decided what is not the ground thar it viola1ed the 'basic s1ructure'. They did so on the basis of the concession
an aspect of the ratio, one has to decide what is 'considered' as distinct from 'casual' dicta. Third, made by counsel that there was a binding mtio in 'Kesavananda pre.scribing a 'basic structure'
limitation! The jusrices e.ne11ded the limi1ation beyo11d what may be said to have been contained in
no objective criteria exist for justification of this distinction. Fourth, High Courts may vary inter
se in their characterisations of what is 'considered' and what is 'casual'. And this variation, fifthly, Kesavana11d11!
can only be resolved by the Supreme Court (since all High Courts are of coordinate status) - and Their reasoning, in l975 di5played as keen a dedica1io11 10 the limital'ion or constituent power as
the Supreme Court's decision may itself further generate the question it seeks to answer, that is, the.ir opinion in 1973 had displayed In r.he service or t'hc ideal or parliamentary sovereigmy.
what in its decision now constitute 'considered' and 'casual' dicta! One would have to s11y thnt India's distinctive coniribution to siare dccisis lies in Ute creation
of a truly volitional systemof precedent: the volition involved is not merely that of the judge,
31 Dhavan, Supreme Court of India, 42, observes that although the Supreme Court began to but also that of the bar!
overrule itself in 1954, there was a 'short lull' from 1956 to 1960; but that since then there has be
n 'a steady stream' of overruling. He points out that these dates correlate with the appointment of 58 See Baxi, [1974] I SCC (Journal).
new judges to the Court. And see generally the literature cite in note 29 above. 59 IM Chagla v Shivshankar [1981] 4 SCALE 1975, 2115. Incidentally, both these decisions are of
profound importance to the future of the Indian polity.
32 See the studies by Julius Stone referred to in note 1 above.
33 See the judicial statements collected by Dhavan, Supreme Court of India, 38; and the 60 In re Special Courts Bill 1978 [1979] I SCC 380, AIR 1979 SC 478.
observations of Chandrachud CJ, signalling the dwindling role of stare decisis in constitutional 61 [1979] 1 SCC at 438, AIR 1979 SC at 519.
adjudication, in Waman Rao v Union of India, AIR 1981 SC 271, 287-9. 62 AIR 1973 SC at 1462.
34 Dhavan, Supreme Court of India, 450. 63 HM Seervai, 'Fundamental rights case: at the crossroads' [1973] Bombay Law Reports (Journal)
47, 50-1, Seervai, Co11stit11tio11al Law, 1514-9.
35 See U V Baxi, Introduction to K K Mathew, Democracy, Equality and Freedom, ed U V Baxi,
Eastern Book Co, Lucknow, 1978, ii n 6. 64 Seervai, l!973J Bombay Law Reports (Journal), 82.
36 Baxi, Introduction to Mathew, Democracy_, iii n 7. 65 Seervai. [1973] Bombay Law Reports (Journal), 83.
66 Seervai, [ I973] Bombay Law Repo,·ts (Journal), 83.
37 Baxi, Introduction to Mathew, Democracy, xxvi-xxvii.
38 For the distinction between the 'gravitational' and the 'enacting' force of precedent see Dworkin, 67 And see the text accompanying note 49 above.
111. The distinction is as elegant as it is problematic. It is even more problematic outside the 68 S c Baxi, Introduction to Mathew. Democracy.
Anglo-American adjudicatory context.
69 The volume or law report of Supreme Court decisions is constantly on the increase. For 1981 it has
reached 2392 closely printed pages (58 lines per page)!
48
49
 LEGAL CHANGE THE TRAVAILS OF STARE DECISIS IN INDIA

70 Dhavan, Supreme Coul'/ u11der Strain. 51. 98 For exrnnple, Seervai. Consritutio11al Law - the most celebrated treatise on constitutional law.
now nearing its third edition - scrupulously avoids any mention or any contribution published in
71 Dhavan, Supreme Cow·r 1111der Strain. 51, India by an Indian scholar!
72 Dhavan, Supreme Co11rt 1111der Swain, 56, 99 As to lawyers complaints see R Jithmalani, 'Judicial gohhl.edygook' ( 1973) 2 J Bar Council of India
73 Gadbois, 10 Benares LJ, xviii, esp xx-xxi: KB Namhyar. 'Mr Jithmalani and judicial gobbledygook' [ 1974] I SCC (Journal)
74 Sec note 21 above. 68: KM Sharma. 'Judicial grandiloquence in India: would l'ewer words and shorter oral arguments
make for better judgments?' ( 1973) 4 Lawasia 192. Chinnappa Reddy J (of the Supreme Court) hJ<
75 Sec note 20 above. recently also complained that judges themselves are increasingly becoming professionally il!i\c:rate.
76 Dhavan. Supreme Cor/1'1 of India, 43. 100 See Baxi, Introduction to Mathew, Democracy.
77 Gadbois, 10 Be11ares LI, 24-34. For example, Koka Subba Rao was a great dissenter as a puisne 10 I See Baxi, Supreme Court and Politics. 19-26.
judge: he was in a minority in as many as 4R decisions. But during his long tenure as Chier Justice of
India he 'never wrote a dissenting opinion, nor was he once in the minority in the 77 reported 102 See OW Holmes, 'Learning and science' (25 June 1895). in OW Holmes. Speeches, Little. Bro"n
decisions in which he particip,llcd himself', & Co, Boston, 1913. 67. 68, and in Lerner. note 7 ahove. 34. 35.
78 Constitution of India. art 32: and sec the citations in note 19 above. 103 J D M Derrett, 'The concept of duty in ancient Indian jurisprudence: the problems or
ascertainment'. in W D O'Flaherty and J D M Derrctt (eds). The Concept of Duty in South Asia
79 Constitution of India. art 131. (conference papers. School of Oriental and African Studies, University of London). South Asia
80 Sec A R Blackshicld. '"Fundamental rights" and the institutional viallility of the Indian Supreme Books, Columbia, Missouri, l978. 50.
Court' (1966) 8 J llldian L !,wiu,re 134. 104 Derrett, Concept of Duty, SO.
81 For an elucidation of the role of the Court as a centre ol oppnsitio1rnl power sec Baxi, Supreme
105 Derrett, Concept of Duty, 48.
Co11rt and Politics.
106 See Stone, Human Justice, 345-55, and the evocative analysis in AR Blackshield, 'The enclaves of
82 See Baxi, S11pre111e C.011rr' and Politics.
justice: the meaning of a jurisprudential metaphor' (1967) 19 Maine LR 131.
83 Increasingly, the burden of maintaining a modicum of' l'airncss in public administration is being
passed on to the courts. There is not merely a growth of administrative deviance, but also of
governmental lawlessness. Sec Baxi, Crisis; UV Baxi, Introduction to IP Massey, Admi11isfrati,,e
Law, Eastern Book Co, Lucknow, 1980.
84 Sec my comments in note 23 ahove.
85 Sec Stone, Legal Sv.<tem, )16-21; Stone, Social Dimensions. (178-80.
86 For further elaboration ;1nd examples sec Baxi, Introduction lo Mathew, Democracy. The
technique of 'prospective overruling· may he seen - dcpc:1ding on the actual use or it - as
providing examples of several different styles of juristic activism. For a brilliant analysis of the
varieties of'prospectivc overruling' sec AR Blackshicld, "'Fundamental Rights" and the economic
viability nf the Indian nation, Part Ill: Prospective overruling' (1968) 1(1 J !11dia11 L /11stifllte
183.
87 The notion or judici,d populism is developed in Baxi, S,.,prrme Co11rr and Politics, 246-8.
88 Sec Baxi, Supreme Court and Politics, where illustrations arc given throughout.
89 Through devices such as supcrscssion (note 14 above); mass transfer of judges from one High
Court to another (as during the 1975-76 emergency): unceremonious eleventh-hour extensions of
the terms ol appointment ol' additional justices of the High Courts under art 224 or the
Constitution: and the arbitrary non-renewal or such justices' tenure. Sec the general discussion of
some of these aspects in l,M Chagla v Shivslrm,kar (71,e J11d1;e.( Case) [1981] 4 SCALE 1975,.
90 Sec Baxi, Crisis, 208-4.1: and sec note 26 above.
91 Kas1tiri Lal v Swte o.f Jn,1111111 & Kashmir. AIR 1980 SC 1992: Setty v lnrenwrio11al Airport
Autlwritie.f, AIR 1979 SC 1626.
92 Sec Baxi, Crisis; Baxi. Introduction tn Massey, Adminisrrari,·e Law.
93 Sec note 26 abnvc,
94 The Supreme Cnurt, lhough,reluctantly, intervenes often enough in the work of the High Courts.
Under its extraordinary jurisdiction (sec the text accompanying notes 19-20 above), it directs High
Courts to hear certain nrntters on a priority basis; or not lo allow adjournments: or not to grant stay
orders.
95 Especially in the cases ol' ·undertrials' in Bihar: sec note 26 above and sec Baxi, Crisis, 227-43.
96 This is evidenced by the quality of professional precis written by and for the use of practitioners.
They arc almost always narrational and cxpositional, and even this at an intellectually pedestrian
level. Rarely do th sc works aJvancc the state of the art
97 Most lawyers know the 'leading cases·. and use them as standard proforma strategies for activating
the Court's jurisdiction. One has only to look at a few writ-petitions selected at random to see the
force of the point made in the text.

50 51