Constitution of India

Article – 41. “Law declared by Supreme Court to be binding on all courts.

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.

141. “Law declared by Supreme Court to be binding on all courts.—The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

Binding on all courts: The words ‘binding on all courts in India’ though wide enough to include the Supreme Court, do not include the Supreme Court itself, as it is not bound by its own judgments but is free to re-consider them in appropriate cases. Article 141 has the effect, in addition to investing the decisions of the Supreme Court with a binding force, of creating a constitutional organ whose declaration of law shall be binding on all courts in the Republic. Procedural irregularity cannot affect the binding nature of the Supreme Court decision.

Law having been declared by the Supreme Court, it is the duty of the High Court to act in accordance with article 141 and to apply it by giving reasons to justify whatever be its view. The High Court cannot overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, but also mandate of the Constitution as provided in article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

What is binding is the ratio of the decision and not any finding on facts, or the opinion of the court on any question which was not required to be decided in a particular case; it is the principle found out upon a reading of the judgment as a whole in the light of the questions before the court, and not particular words or sentences.

When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity.

Judicial adventurism cannot be permitted and the tendency of the subordinate courts of not applying the settled principles and in passing whimsical orders which necessarily have the effect of granting wrongful and unwarranted relief to one of the parties is strongly deprecated.

A mere reading of article 141 brings into sharp focus its expanse and its all pervasive nature. Where numerous petitions are disposed of by a common judgment and only one appeal is filed, the parties to the common judgment could very well have and should have intervened and could have requested the court to hear them also. They cannot be heard to say that the decision was taken behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment. By setting aside the common judgment of the High Court, the mandamus issued by the High Court is rendered ineffective not only in one case but in all cases.

It is not for any court to tell a superior court how a matter should be decided when an appeal is taken against its decision to that superior Court. Such a course would be subversive of judicial discipline on the bedrock of which the judicial system is founded and finality is attached and orders are obeyed.

A High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.

Binding on Government: Where a State Government is a party and is duly represented before the Supreme Court, the decision of the Court declaring a State Act to be ultra vires shall be binding on that State Government, even if a notice, as required by the Civil Procedure Code, was not served upon the Advocate General.

Not binding Court decisions: The following categories of decisions of the Supreme Court have no binding force:
(a) Obiter dicta, i.e., statements which are not part of the ratio decidendi.
(b) A decision per incuriam, i.e., without any knowledge of the terms of a statute or rule having the force of a statute.
(c) A decision passed sub-silento, i.e., without any argument or debate on the relevant question.
(d) An order made with the consent of the parties, and with the reservation that it should not be treated as a precedent.
It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.

Role of the Supreme Court: When the Supreme Court as the apex adjudicator declaring the law for the country and invested with constitutional credentials under article 141, clarifies a confused juridical situation, its substantial role is of legal mentor of the nation.

It is inevitable in hierarchical system of courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted.

Principle of stare decisis: Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice.

Court judgments not legislation: The Supreme Court judgment cannot be treated as “a sort of legislation by Parliament” overlooking the binding nature of the law declared by it, mandating under article 141, every court subordinate to it to accept it. The law declared by the Supreme Court binds courts in India but it should always be remembered that the Court does not enact.

Source : Dr. Subhash C. Kashyap, Constitutional Law of India

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