Unsettling the “Settled Law”: “Reference” as a progressive Judicial device

Dushyant Mainali

 

“Settled law” is the most used term in legal briefs, court room arguments and finally in the text of the Judgments in almost all the functional legal-judicial systems in the world. The term comes from a judicial concept adopted from common law.  The apposite term in this connotation is “stare decisis” in Latin to mean:- “stand by, on things decided”.

In India, as well, we have adopted a legal tradition of giving highest regard to judicial precedent.  By constant development our judicial system, adopted the concept in order to establish a public belief of consistency in judicial proceedings.  Laws and legal interpretations cannot be stagnant in nature; they keep following the social order. Something desirable to be done today, will certainly not be prolific to be done in future. This is a widely accepted theory, but by no means it’s an absolute one.

Technicality involved in the term “Settled Law”

Technically “Settled Law” means the questions of law regarding interpretation and operation of law have been settled by the Courts. The functioning of Judicial System has dealt on numerous occasions, where any law or provision can have multiple interpretations and certainly more than one. In such cases it becomes difficult to follow the law and implement it properly. Then the difference of opinion arises as contesting parties in litigation claim their interpretation and understanding of law is the correct version. Then the Courts have to become the trendsetter and final interpreters of law to decide upon the questions of law raised in milieu of disputed interpretations of provisions. Then courts’ decisions should act as precedent for further disputes. Thus the term settled law, will connote the question of law on the point has been settled through a judicial process. Settled law evolves over a period of time, gradually. Therefore “settled law” in a broader sense is used to refer to decisions of the higher court which have remained unchanged for a long time but it cannot guarantee to remain unchanged forever

Indian Supreme Court: Unsettling the “Settled Law”

Law has always been progressive and the stretchiest concept governing human society. It changes with shifting times, circumstances and with the new challenges which are mostly unanticipated. Indian Supreme Court has each time accepted this challenge of unsettling the settled law as per the newly faced challenges and situations which arise. The Indian Supreme court has a history of overturning previous precedent, unsettling the settlement of “settled law” itself, time to time.  One can illustrate the prominent question that arose time to time regarding extent of amendment of the constitution of India the Parliament can carry out. The Hon’ble Supreme Court of India held it differently in different cases till it settled law in this context in Kesavananda Bharati[1] case. In Kesavananda case, the Supreme Court finally held that parliament can amend the constitution but it cannot destroy the basic features of the constitution. Therefore, as on the date, it is the settled law on this question as a larger bench of 13 Judges constituted in the Kesavananda case settled law therefore its binding on all and being large bench it overruled the decisions of smaller benches. The Indian Supreme court has a history of overturning previous precedents, unsettling the settlement of “settled law” itself time to time.

As per our Constitutional framework the Supreme Court of India is not infallible, but is final in the sense that the verdicts delivered by it are binding in nature, they are law of the Land as per Article 141[2] of the Constitution of India.

As changing times require the adequate change in the applicable law over some subjects. It would be a grave miscarriage of justice if Supreme Court pronouncements could not be overturned in later times.  Various Judicial contributions including the expanded interpretation of Article 21 in terms of Right to Life and Personal Liberty would never have been possible, without the Supreme Court’s power to revisit stand taken by it in the past.

Even before completion of the first decade since independence, in 1955, in Bengal Immunity Co. v State of Bihar[3], the Supreme Court expressed the opinion that it was not bound by its earlier judgments; it could re-evaluate its own previous decisions to keep pace with the needs of changing times.

A five-judge bench of the Supreme Court in Central Board Of Dawoodi Bohra v State Of Maharashtra & Anr[4], while discussing the legal propositions relating to judicial discipline, held –

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra).”

Very recently on September 6th 2018[5] Supreme Court of  India heaved the attention of  both the conventional and progressive sections of world while it overturned its own judgments on homosexuality and declared that:-

“it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons  above the age of 18 years who are competent to consent) in private, is violative of Articles 14,15 19, and 21of the Constitution.”

The Supreme Court in this case has made a gratifying endeavor of putting the law at pace with the modern liberal society. Para 19 of the Judgment observing about constitutionality of a provision gives a undertone of the principle of capsizing itself:-

“…presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role”

Relying on the theory propounded in said para 19 of the Judgment the Apex Court has held:-

“The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors[6].is hereby overruled for the reasons stated in paragraph 19”

 

This trendsetting of unsettling the settled law, with times and with coming circumstances has changed the Judicial values treating the Statutes and the Constitution as a breathing entities, whose meaning and interpretation may change with times and circumstances.

If the Supreme Court were to be bound and estopped completely by its past pronouncements, then there would be no need for new modern viewpoint or development of law.

“Black-letter law” and “Settled law”

As per the Oxford reference[7],  black letter laws, in common law legal systems, are the well-established legal rules that are no longer subject to reasonable dispute. In an 1831 case in the U.S. Supreme Court, Jackson ex dem. Bradstreet v. Huntington, the phrase “black letter” was used: “It is seldom that a case in our time savours so much of the black letter; but the course of decisions in New York renders it unavoidable…”[8]  The phrase “black-letter law” was also used in the Pennsylvania Supreme Court case  Naglee v. Ingersoll[9].  Although used in 1831 and 1847 cases, at the first instance the phrase “Black Letter Law” has a chance of being misunderstood with the reference of Black’s Law Dictionary, which was first published in 1891.

 

The phrase has its historic roots to the practice of setting law books and citing legal precedents in black letter type, a tradition that had continued to exist long after the change to Roman and italic text for other printed works specially the bold black fonts which we use to highlight something.

“Doctrine of Stare Decisis” and “Settled Law”

English system of precedent is based on the Latin maxim signifying the Principle of Judicial discipline :-stare decisis et non quieta movere, which means to stand by and adhere to decisions and not disturb what is settled. Word ‘stare decisis’, connotation of binding judicial precedent, fixing parameter, if any, for making reference to a larger Bench are all devices evolved by the Courts for maintaining its own judicial discipline, modesty and propriety and to maintain its judicial comity.

This natural concomitant of inbuilt judicial discipline gives stability and uniformity in the application of law both to the issue and Courts. This keeps Courts within its bound and in spite of different opinions; adverse results for themselves the litigants follow this procedure with respect. Otherwise any settled law could be unsettled any day, making it difficult to follow, budding the judicial chaos.

In a signpost English judgment the fêted words of  Bukley, J. in Produce Brokerers Co. Ltd. v. Olym-pia Oil & Cake Co. Ltd[10],: explaining the significance of the policy of binding precedents:-

“I am unable to adduce any reason to show that the decision which I am about to pronounce is right. On the contrary, if I were free to follow my own opinion, my own powers of reasoning such as they are. I would say that it is wrong. But I am bound by authority — which, of course, it is my duty to follow — and following authority, I feel bound to pronounce the judgment which I am about to deliver.”

In India as well, naturally the self discipline rule of ‘stare decisis’ is followed by the Judges in administering justice. But this in no way is stumbling block for the development and progress of law.

As per the principle of binding judicial precedent not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of coordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently assumed Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide contrary but has an option with judicial sanction to refer it to a larger Bench.

Thus, the principle of ‘stare decisis’ or binding judicial precedent is well settled. This is more effective in the Indian Courts. As the American Supreme Court of State sits in one Bench (All the Judges sit together) there is no difficulty of conflicting judgments coming from different rooms of the same court building, but in our Courts, with the heaviness of work, the distribution of cases to Benches of different Judges, this principle has been adopted and followed for maintaining judicial decorum, propriety and discipline and also, for not unsettling the well settled law by each individual view unless it is overruled by the higher Court or a larger Bench.

“Reference” as tool of advancement of law and the “Settled Law”

“Reference” has been the most vital judicial tool for unsettling the previously settled law in India. Without “Reference” the flexibility of judicial dictums will not be possible. It is well settled that no one is flawless including the Judges rendering judgments and settling legal positions. Therefore, while maintaining the austerity of  binding judicial precedent, if such judgment is perpetuating, continuing injustice, the error of which is apparent on the face of record or against any previously binding judicial precedent, against any constitutional or statutory provisions, contrary to any settled principle of law or even with the change of social framework requires reassessment being of public significance, to set the things back on the right track another equally important principle is advanced by referring such matters to a larger Bench via Reference.

Even where the Benches of coordinate jurisdictions having a different view of any earlier such Bench, the proper course open is to request the Chief Justice to refer the matter to a higher Bench or to constitute a larger bench.

Both principles of ‘stare decisis’ and instrument of ‘reference’ are not contrary but complementary to each other, evolving and developing the law with only aspire of rendering justice. All methods, principles, procedures created by Courts to deliver justice to the subjects. In this respect there are catena of authorities  by Indian Courts which promote reference in case of conflicts and difficulties in applying binding precedent. A perusal of judicial patterns over the subject will elucidate the scenario and surroundings of scope of Reference.

 In Tribhovandas v. Ratilal[11] Hon’ble Supreme Court held:-

“(7). Before parting with the case, it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of  Raju. J. raises. The learned Judge observed –

(1) that even though there is a judgment of a Single Judge of the High Court of which he is a member of or a Division Bench of the High Court, he is not bound to follow that precedent, because by following the precedent the Judge would act contrary to S. 165 of the Indian Evidence Act and would also violate the oath of office taken by him. When entering upon his duties as a Judge under the Constitution: and

(2) that a judgment of a Full Bench of the Court may be ignored by a single Judge, if the Full Bench judgment is given on a reference made on a question of law arising in a matter before a single Judge or a Division Bench.  Such a judgment, according to Raju. J. would “not be a judgment at all” and “has no existence in law.”

“(8) The observation made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. Precedents, which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily hound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court, The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.”

In Bhagwan v. Ram Chand[12] the Apex Court held:-

“It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to he reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the mailer to a Division Bench, or- in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.”

In this case Supreme Court deprecated and did not approve learned single Judge deciding a case against principle of Division Bench.

To the same consequence is Union of India v. Godfrey Philips India Ltd[13] giving effect to the same principle.

“….. We find it difficult to understand how a Bench of two Judges in Jeet Ram’s case could possibly overturn or disagree with what was said by another Bench of two Judges in Moti Lal Sugar Mill’s Case. If the Bench of two Judges in Jeet Ram’s case found themselves unable to agree with law laid down in Motilal Sugar Mill’s case they could have referred Jeet Ram’s case to larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court.”

To the same effect is State of W. B. v. Falguni Dutta[14].

“4. We may incidentally mention that when the learned single Judge was disinclined to follow the earlier two decisions of other learned Single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision.”

D. K. Yadav v. J. M. A. Industries Ltd[15].  holds, once an authority to the law is laid down the same should he followed as a binding precedent, but the only alternative is, in case of difference, to refer it to the larger Bench (at p. 1999 of AIR ):–

“…..It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be re-canvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a larger Bench in the larger public interest to advance the cause of justice.”

In Mohar Singh v. Devi Charan[16]  

“That was a decision which the learned Judge in the present case should have considered himself hound by unless there was a pronouncement of a larger bench to the contrary or unless the learned Judge himself differed from the earlier view in which even the matter had had to go before a Division Bench.”

In Union of India v. Raghubir Singh[17] relying on Privy Council the Hon’ble Apex Court held:

“21….. the position in India approximately more closely to that obtaining in the United States rather to the position in England where Parliament could rectify the situation by a simple majority, and to that in Australia, whore the mistake could he corrected in appeal to the Privy Council. The learned Judge observed: — “There is nothing in our Constitution which prevents from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

“28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repealed affirmation over a century of time. … the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.”

In a nineties Judgment Sunderjas Kanayalal Bhathijia v. Collector, Thane[18] Hon’ble Supreme Court held:-

“One must remember that pursuit of the law however, glamorous it is, has its own limitation on the Bench. In a multi-judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our constitutional scheme, it is the duty of judges of superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches; The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public .would be a dilemma to obey or not to obey such law and it ultimately falls into disrepute.”

In the same year holding the same principle in Shridhar v. Nagar Palika, Jaunpur[19] :-

.

“3….. as has been reiterated in a number of decisions of this Court that if a single Judge, disagree with the decision of another single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions.”

Although Courts have been reluctant in overturning the Judgments easily  as in  Distributors (Baroda) Pvt. Ltd. v. Union of India[20]

“19. But, even if in our view the decision in Cloth Traders case is erroneous, the question still remains whether we should overturn it. Ordinarily we would be reluctant to overturn a decision given by a Bench of this Court, because it is essential that there should be continuity and consistency in judicial decisions and law should he certain and definite. It is almost as important that the law should be settled permanently as that it should he settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the Court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the Court.”

These authorities reflect that binding judicial precedent means a decision of the higher Bench is binding on the lower bench and even on a later co-ordinate Bench of equal number of Judges. The later such Bench cannot decide contrary to the earlier such Bench and in apt case of need of revisiting any settled law it may refer it to the higher or larger bench to settle the conflict of opinion arose over any legal issue by two or more contradictory judgments.

Defining, parameters of Reference: Judicially Settled Modalities

Despite being the most imperative tool in the development of law, Reference, has judicially been advised to be used restrictively and not frequently especially by the High Courts. The difference carved out between High Courts and Supreme Court, in making Reference, is to be judged from different perspective as- there is no further right to appeal in Supreme Court, while reference by High Court has to be restrictive as there is right of appeal against its decisions. What parameter the High Courts and Supreme Court have laid down for making Reference is interesting to note.

In State of Punjab v. Surinder Kumar[21] it has been held:-

“6. … .It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The constitution has, by Art. 142 empowered the Supreme Court to make such order as may be necessary “for doing complete justice in any case or matter pending before it”, which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.”

In one earlier Judgment of Punjab and Harayana High Court in  pritam kaur v. surjit singh[22], the following passage specifies the parameter of reference:

“The reference was answered in these terms, “it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every field doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratio of the Full  Benches are and should be rested on super foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for consideration. One of the obvious reasons is where it is unequivocally manifest that its ratio has been impliedly overruled or wittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly where it can be conclusively said that the judgment of the larger Bench was rendered per in curium by altogether failing to take notice of a clear-cot statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration.”

In  Pritam Kaur’s case (Supra) where learned single Judge doubted the decisions of earlier Full Bench, yet the Court with caution only expressed the anxiety as :-

“…does not justify the reconsideration by a larger Bench the law specifically laid down by the Full Bench; the ratio of Full Benches “are not to be blown away by every side wind.” “it is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration.”

In substance Allahabad High Court in Rana Pratap Singh v. State of UP[23] adopts reasoning and the parameters as laid down in the case of Pritam Kaur (supra), which is quoted in paragraph 15 of the judgment. The parameters, as laid down, are as following:

(a) On every veilded doubt with regard to the law laid down by a Full Bench does not justify reconsideration by a larger Bench;

(b) Where it is unequivocally manifest that the raito of Full Bench has been impliedly or directly overruled by the superior Court or larger Bench of the same Court, reference could be made:

(c) Where co-equal Bench has laid down law directly contrary to each other, reference could be made:

(d) The judgment of a larger Bench is rendered, by failing to take note of a clear-cut statutory provision or earlier binding judicial precedent, reference could be made.

Thus as per the Judicial precedents , the device of reference has to be used as Brahmhastra was used in Indian Mythological sagas. In Ambika Prasad Mishra v. State of U. P.[24], a Constitution Bench of  Hon’ble Apex Court held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority ‘merely’ because it was badly argued, inadequately considered and fallaciously reasoned. Distinguished Krishna lyer.J. recorded it as: “Every new discovery or argumentative novelty cannot undo or compel reconsideration of a judicial precedent.”

The Judicial anxiety has been not to unsettled a settled law on personal sentiment and view of Judges. Courts are conscious that  in every oblique doubt or casually no reference should be made for unsettling a settled law.

It is unambiguous; References are to settle the law correctly. It does not set aside earlier case ruling. When precision of an earlier decision is doubted, whether it is open to a subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench to resolve the controversy authoritatively? Thus all the discussed catena of decisions points out that in the case of difference of laws settled in judgments, demureness lies in making the Reference to a larger Bench and it is not open either to a single Judge or a Bench of co-ordinate jurisdiction to embark upon taking a different view in a matter, and unsettled the things already settled by their coordinate jurisdictions.

In Bengal Immunity Company Limited v. State of Bihar[25], a seven Judges Bench of the Supreme Court assembled to consider whether the majority decision State of Bombay v. United Motors (India) Ltd.[26] Should be reconsidered and then in the majority decision, the Supreme Court observed :

“There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

In this case the Supreme Court referred to the far reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and concluded that the error committed in the earlier decision would result in perpetuating a lax burden erroneously imposed on the people, giving rise to a consequence “manifestly and wholly unauthorised.” The Court further observed:

“that if the decision is erroneous, as indeed we conceive it to be, we owe it to the public to protest them against the illegal tax burdens which the State are seeking to impose on the strength of that erroneous recent-decision.”

Thereafter the Hon’ble Supreme Court further cautioned that

“we should not lightly dissent from a previous pronouncement of this Court.”

In this case Hon’ble Supreme Court said, if the previous decision was manifestly erroneous, there was a duty on the Court to say so and not perpetuate the mistake. The appeal to the principle of stare decisis was rejected on the grounds that:-

(a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and

(b) the doctrine of stare decisis was not an inflexible rule, and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof.

The test laid down in Bengal Immunity Co. Ltd. (supra.) was that where an order has far reaching effect and is followed that would result in perpetuating an error to the detriment of general welfare of the public, then the Court owed a duty to the public to remove-the error, at the earliest.

In Keshav Mills Company v. Commr. of Income-tax.[27], the Supreme Court of India observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so.

In Sajjan Singh v. State of Rajasthan[28], the Supreme Court laid down the test as: “Is is absolutely necessary and essential that the question already decided should be reopened?” and went on to observe: “the answer to this question would depend on the nature of the infirmity alleged in the earlier decision. its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view”.

In Ganga Sugar Company v. State of U. P[29], Supreme Court held against the finality only where the subject was “of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong.”

Infinite authorities can be referred to replicate the trend of Judicial support to the machination of Reference in rectification and development of Law.

The essence of all the Judicial authorities is that- an error if it is so elementary and has far reaching effect in that, if  it is allowed to continue, then that would affect the interest of  society, then earlier decision should be revisited, than perpetuating the error previously committed, adducing more misery to the general public and allow the erroneous precedent to continue to hold to the field. However the Supreme Court has restrained itself from propounding any generalized formula for utilizing the device of Reference.

In Keshav Mills  (supra), the Supreme Court at page 1644 has given the concentrate of modality of reference by opining ;–

“It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations.”

Conclusion:

The truth is that “settled law” is just an tremulous phenomenon that legal fraternity use to refer to Judicial precedent on a subject, indeed it is being binding to the subordinate courts and smaller benches- but only until a majority of the judges of higher bench decide that it should be overruled as per the newly arisen state of affairs for providing justice to its subject.

It materializes from the study of the law over the subject, developed through judicial authorities, that despite all Judicial strength given to exercise Reference in warranted condition, no doctrinaire approach or straight jacket formula can be universally adopted when correctness of an earlier decision is doubted and a Reference to a larger bench is sought to be made.

Therefore, the functioning of the watchful judicial system in India shows that the anomalies and inconsistencies within the conflicting judgments, which are giving rise to a sense of uncertainty and unpredictability in the society, cannot easily be overlooked, they must be resolved in time by nipping the evil in the bud.

The Indian idea of Law has been progressive and flexible. The function of law is meant to participate in solving the social problems ideally. Indian Courts by utilizing, Reference, in overturning their own static precedents have unsettled the previously settled law for becoming synchronic with the needs of modern times, thoughts and society and have emphasized that the law is always on the status of “law in the making”.

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[1] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ‎(1973) 4 SCC 225

[2] Article 141:- The law declared by the Supreme Court shall be binding on all courts within the territory of India.
[3]Bengal Immunity Co. V/s State of Bihar (AIR 1955 SC 661)
[4] Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. – 2005 (2) SCC 673
[5] WRIT PETITION (Crl.) NO. 76 OF 2016 NAVTEJ SINGH JOHAR & ORS. Vs. UNION OF INDIA & connected matters

[6] (2014) 1 SCC 1
[7] http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095510675

[8] Jackson ex dem. Bradstreet v. Huntington, 30 U.S. 402, 434 (1831).
[9] 7 Pa. 185 (1847)
[10] 1916 AC 314
[11] AIR 1968 SC 372
[12] AIR 1965 SC 1767 (Para 18)
[13] AIR 1986 SC 806
[14] (1993) 3 SCC 288
[15] (1993) 3 SCC 259 : (1993 AIR SCW 1995)
[16] AIR 1988 SC 1365 (Para 7)
[17] AIR 1989 SC 1933
[18] AIR 1990 SC 261
[19] AIR 1990 SC 307,
[20] . AIR 1985 SC 1585,
[21] AIR 1992 SC 1593
[22] AIR 1984 Punj & Har 113 (FB)
[23] 1995 All CJ : 200
[24] (1980)3 SCC 719 : (AIR 1980 SC 1762)
[25] AIR 1955 SC 661
[26] AIR 1953 SC 252
[27] AIR 1965 SC 1636 at page 1643-44
[28] AIR 1965 SC 845 at pp. 854-55
[29] AIR 1980 SC 286 at p. 294