Uniform Civil Code: The Dormant Law

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

 

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

 

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

 

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

 

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

 

The Subordinate Status of Women

 

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

 

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

 

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

 

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

 

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

 

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

 

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

 

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

 

Relief Granted

 

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

 

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

 

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

 

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

 

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.

A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS

ADITI GHOSH

 INTRODUCTION:

Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method plays an important role in the development of law, irrespective of the fact whether a community lives in rural simplicity or modern complexity, or whether it follows case laws to decide cases or codified laws. In this paper the researcher is going to discuss the judicial method of legal precedents and the fundamental issues raised by following this method.

There are two types of law – statute law and common law. The first category refers to the law passed by the parliament, it is written and must be adhered to. The second type is the common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means ‘Let the decision stand’.

Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents.

One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability, learning, fairness and open mindedness of the judiciary as a whole, as well as the careful attention due to the particular case, by indicating the grounds upon which the decision is based whenever the case is one not entirely clear.

WHAT IS MEANT BY A PRECEDENT?

A precedent or authority in common law parlance means a previously decided case which establishes a rule or principle that may be utilized by a court or a judicial body in deciding cases that are similar in facts or issues.

TYPES OF PRECEDENTS

There are different types of precedent within the law.

ORIGINAL PRECEDENT

The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before, then the decision of the judge in such a case forms an original precedent. Eg. The famous case of Donoghue v Stevenson (case of negligence of the manufacturer and the duty of care he owes to his customers). In such a case the judge has to reason by analogy and look at cases that are similar and are closest in principle and thus arrive at a judgment by using similar reasoning.

AUTHORITATIVE OR BINDING PRECEDENT

As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judges must follow whether they approve it or not. It is also known as mandatory precedent or binding authority. As per the doctrine of stare decisis, a court lower in the hierarchy follows and honours the findings of law made by a court higher in the hierarchy. The decisions of lower courts are not binding on courts higher in the system.

Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region.

PERSUASIVE PRECEDENT

And a persuasive decision or precedent is one which the judges are under no obligation to follow but which they will take into consideration and attach as much weight as it deserves.

It is a precedent that the court need not follow, but may consider when a decision is being made as it is relevant and might be useful. Persuasive precedent comes from many places. Courts lower in the hierarchy can create a persuasive precedent.

These cases could be cases that are decided by lower courts, or courts equivalent in the hierarchy or in some exceptional circumstances, cases of other nations, judicial bodies of the world etc.

Once a persuasive precedent has been adopted by a higher court it becomes a binding precedent for all the lower courts that time onwards.

THE DOCTRINE OF STARE DECISIS?

“Stare decisis” is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions that are already settled and not to disturb those settled matters”. And “Stare decisis” literally means “to stand by decided matters”.

Stare decisis is a policy adopted by the court to stand by a precedent. The word “decisis” means ‘the decision’. Under the doctrine of stare decisis, the decision of the court for a case is only what is important and not the real facts and proceedings of the case. In other words it is the ‘what’ of a case which is important and not the ‘how’ and ‘why’.

The principle of stare decisis can be divided into two components or principles:

The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn.

The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and does occasionally ignore.

Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority.

Glanville Williams in Learning the Law (9th ed. 1973), describes the doctrine in simple terms :

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon. The same learned author who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. In India, The Supreme Court of India is the supreme authority in legal matters as it is the highest judicial body and the cases decided by it form the precedent for all the other courts in India; it includes the High Courts, district courts and the other lower courts. The Supreme Courts serves as the precedential body, resolving conflicting interpretations of law. Whatever this court decides becomes judicial precedent.

It has been stated by The United States Court of Appeals for the Ninth Circuit :

“For the system of precedents to work effectively there are three elements that are very important to be present in the legal system of that country. First, there needs to be an undisputed and accepted hierarchy of courts with one court having the supreme authority over all the other courts of the land. The second is the presence of an efficient law or case reporting system. And the third element is to strike a balance between the need of having consistency and certainty in legal matters resulting from following the previously decided binding cases and on the other hand to avoid the restricting effect on the development of law by following such a method. ”

HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS?

In the words of one British journalist, “Judicial precedent means a trick which has been tried before, successfully.”

In the language of a layman the term ‘precedent’ implies that what was done before should be done again the same way. The method adopted in any problem solving exercise is to find out if a similar problem has been tackled before. If yes, then the next step is to find out the degrees of similarity that exists between the problems. If the similarities are found to be significant then next it needs to be analysed whether the same principle that was applied to the previously solved problem can be applied successfully to solve the problem at hand. This way the precedent works as an effective guide to solve new problems having similarity with the earlier one. This helps in achieving consistency and certainty in legal matters. And the corollary of this situation is that people making decisions are often afraid to do something new and striking in case ‘it creates a precedent’. In the words of a renowned legal philosopher and Scottish politician, MacCormick:

“To understand case-law . . . is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large.”

WHAT IS THE BINDING ELEMENT OF A CASE?

What is binding on the lower court??

Every judgment contains four major elements:

• statement of material (relevant) facts

• statement of legal principle(s) material to the decision – the ratio decidendi

• discussion of legal principles raised in argument but not material to the decision – obiter dicta

• the decision or verdict

It is not the entire judgement that is binding on the lower courts but only the ratio decidendi. The ratio decidendi of a case is the underlying principle or legal reason on which the result of the case depends. This ratio is different from the obiter dicta which is not held to be binding but may be regarded as having persuasive control. And what we are concerned with is not who won or lost but the legal principles that can be extracted from the case which is known as the ratio decidendi. In the words of the Supreme Court: “A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.”

WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES?

The weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in human nature. That judicial precedents have exercised great influence in all systems of law is more than probable; the feeling that a rule is morally right has often arisen from the fact that it has long been followed as a rule; but the degree in which judicial decisions have been openly recognized as authoritative, simply because they are judicial decisions, has varied greatly in different systems. Judges are everywhere largely influenced by what has been done by themselves or their predecessors, but the theories to explain and control such influence have been diverse, and the development of the law has not been unaffected by them.

The purpose is to create certainty and fairness. Precedent is created by the judgements on past cases. The judgement is the speech made by the judge who has made the decision on the case, and it is split into two parts. It should be noted that there is often more than one judge hearing a case, and so there may be many judgements on one case. The first part is the “ratio decidendi” (“reason for deciding”). This is the most important part as it gives the judge’s decision.

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.

The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:

“If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.”

The benefit of following precedents in deciding cases provides certainty to judges in deciding cases, people to plan and lawyers to advice their clients. It provides sufficient flexibility to common law to develop in order to meet the changing times. This method balances these two competing aims.

How significant are the differences?

Similarities and differences both are equally important in deciding the precedents to be applied to a case. Only because the fact looks apparently similar does not necessarily mean that both the cases should be decided in the same manner.

For example if a dog of German Shepherd breed called Tommy howls in a way similar to that of wolf doesn’t mean that every other German Shepherd dog would howl similarly. This syllogism here is thus faulty.

CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT

There can be ways through which precedents may be overruled or judges may chose to deviate from using the precedent.

The first is called per incuriam. Here due to a significant oversight, an important statute was overlooked and this affected the decision significantly. In other words per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision. The second reason is the ‘lapsed rule’, this simply means that the previous decision was valid when it was made but has simply been outdated. The final reason is if there are conflicting decisions within the Court of Appeals own decisions, this could occur if two similar cases were being tried at the same time but different verdicts were reached. This would mean that the next time a similar case came to be heard there would be two conflicting precedents from which to choose. Therefore one of those decisions would have to be overruled. In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.

The relief or tool available to a judge who wishes to avoid following a previous decision which they would otherwise be bound to follow is called distinguishing. When a judge finds the material facts of the present case to be sufficiently different from the earlier case he may distinguish the two cases and refuse to follow the earlier decision. An advantage of distinguishing is that it helps to keep judicial precedent and the law flexible.

The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of “distinguishing”: restrictive and non-restrictive and states:

“Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial.”

There are various factors that strengthen the authority of a precedent. The number of judges constituting the bench, their eminence and the majority strength in the decision (a unanimous decision is considered more valuable). Also the lapse of time meaning thereby the years that have passed after the judgement and its relevance in present times. All these factors help in strengthening the hold of a precedent.

ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS

There are both advantages and disadvantages in following the method of precedents in deciding cases.

The most significant advantage is the element of consistency and certainty that is brought in with the application of precedents. A good decision making process must be consistent. Similar cases must be decided similarly to avoid inconsistency. Consistency is perhaps the most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence. The interests of justice also demand impartiality from the judge. In this method the Judges have clear cases to follow. This is assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. And hence this method ensures impartiality from the judge. Case law is practical in character. It is based on the experience of actual cases brought before the courts rather than on logic or theory. Case laws are viable statute law and the rules and principles are derived from everyday life. This means that it should work effectively and be intelligible and is thus practical. It removes any element of ambiguity regarding the authority of the binding precedents and enables lower courts to follow the decisions of higher courts unanimously. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. Also the hierarchy of the courts ensures that lower courts follow higher courts and this leads to an orderly development of law. It is also a convenient timesaving method. If a problem has already been answered, it is natural to reach the same conclusion by applying the same principle. It also helps save unnecessary litigation. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a similarly situated case.

The most evident disadvantage of this method is the rigidity it confers on the development of law. The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding. The cases exemplify the law in great detail, therein lies another weakness of case law. It is in bulk and its complexity makes it increasingly difficult to find the law. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the court of appeal for reconsideration. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. However, the advantage of certainty is lost where there are too many cases or they are too confusing. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

CONCLUSION

This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, it must be conceded that stare decisis is only a part of this topic. There is much more. There are substantive rules for the interpretation of statutes, there are unique considerations when principles of the law of equity are involved and problems caused by the evidentiary rules of onus of proof. Yet, while the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare decisis continues to play the pivotal role. The great American judge, Oliver Wendell Holmes Jnr, had said ‘The life of the Law has not been logic; it has been experience’. It can be concluded that for an organized and orderly development of law the method of using judicial precedents is inevitable.

Lord Halsbury has said that there is more to the law than a mechanical process of logical deduction. It is obvious that the Judge has in every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the circumstances of his own case are in their essentials similar. Once he has decided which principle to apply, a bit of logic may enter into his application of principles. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction. Generally there is a choice. And this has been explained by Chandrachud, C.J. in Deena v. Union of India as “Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision cited as a precedent.”