Doctrine of Judicial Discipline—Meaning, Importance, Exceptions and its Practical Applicability
The author is member of the Institute. He can be reached at rks9814214503@gmail.com and eboard@icai.in.
1. Introduction: Casual Exercise of Quasi-Judicial Power
Binding judicial precedents are either just quoted or declared as not applicable to the matter in hand without speaking a word as to how and why these precedents are not so applicable. In some cases, even such precedents are not referred to in the order. This tantamount to casual and indifferent exercise of powers vested in the official acting in the quasi-judicial capacity.
Such orders are bad in law, for not following the cardinal principle of demonstrating the inapplicability of a particular binding precedent to notice/appellants. Besides, such orders are against the doctrine of judicial discipline.
Objective: The objective of this article is confined to highlight the meaning and importance of the doctrine of judicial discipline, exceptions to it, related practical aspects and citations with the readers that may be referred to while putting forth the contentions in the case whenever this doctrine is not followed by the authorities.
2. The Doctrine of Judicial Discipline & Hierarchy
The doctrine of judicial discipline requires that the orders of the higher appellate authorities should be followed “unreservedly” by the subordinate authorities, held in the Union of India and Others Vs Kamlakshi Finance Corporation (AIR 1992 SC 711).
“The Rule of Law in respect of Judicial Discipline is that the orders of the higher appellate authorities should be followed ‘unreservedly’ by the subordinate authorities, if the orders of the higher appellate authorities are not so followed by the subordinate authorities, it amounts to judicial indiscipline which will instead of achieving harmony in the judicial system, lead to anarchy by lower authorities.”
The order of the Commissioner (Appeals) is binding on the Assistant Commissioner working under him within his jurisdiction, and the order of the Tribunal is binding upon the Assistant Commissioners and the Commissioner (Appeals) functioning under the jurisdiction of the Tribunal.
Judicial Discipline is also referred to as the principle to follow the binding precedents.
3. Precedents: Original, Declaratory, and Binding
Precedent (Salmond)
Precedent is a judgement or decision of a court higher in hierarchy on the similar set of facts which may be cited or followed by subsequent courts.
Original vs. Declaratory Precedent
When a new law is laid, it is called an original precedent; otherwise, where it merely applies or reiterates existing legal principles, it is a declaratory precedent.
Binding Precedent
Precedents of a court higher in hierarchy are binding upon the court lower in hierarchy. A binding precedent is a precedent which must be followed by all lower courts under common law legal systems.
4. To Follow the Ratio of the Decision and Not Finding of Facts
It is to be noted that subordinate authorities are bound to follow the ratio of the decision and not any finding of facts made by the higher appellate authorities. It is ‘the law laid down in the decision’ which is binding, and the oral or written opinion by a judge that is not essential to the decision is not a binding precedent.
Supreme Court in CIT Vs. M/s Sun Engineering Works Private Limited (AIR 1993 SC 43):
“While applying the decision to a latter case, the court must carefully try to ascertain the true principle laid down by the decision of Supreme Court and not to pick out words or sentences from the judgements divorced from the context of question under consideration by the court to support their reasoning.”
5. High Courts Cannot Question the Correctness of Supreme Court Decisions
It is also trite law that High Courts cannot question the correctness of the decision of the Supreme Court. Regarding the binding nature of the judgement given by the Supreme Court with regards to the High Courts, the Supreme Court held in Suganthi Suresh Kumar Vs. Jagdeeshan [(2002) 2 SCC 420]:
“It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that 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; it is the 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.”
It was pointed out by the Supreme Court in Anil Kumar Neotia v. Union of India (AIR 1988 SC 1353) that the 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.
Key Jurisprudential References on this Principle:
- M/s Gujarat Composite Ltd Vs CCE, Ahmedabad-II (2005-TIOL-1307-CESTAT-MUM)
- Commissioner of Central Excise, Nasik Vs Jain Vanguard Polybutylene Ltd (2010-TIOL-911-HC-MUM-CX)
- M/s Nirma Ltd Vs CCE, Ahmedabad (2011-TIOL-1027-CESTAT-AHM)
- Ram Partap Vs Union India and Others (2014-TIOL-649-HC-P&H-ST)
6. Orders of Higher Appellate Authorities to be Followed “Unreservedly”
Even if the adjudicating/appellate authority does not agree to what is laid down by the higher appellate authority, it cannot ignore the orders of the higher appellate authority. The golden law is that the orders of the higher appellate authorities should be followed “unreservedly” by the subordinate authorities unless the operation of the orders of the higher appellate authority has been suspended by a competent court.
It is also settled law that a mere appeal that has been filed against the order of the higher authority is not a ground for not following it, as held in Infinity Infotech Parks Ltd. versus Union of India [2018 (18) G.S.T.L. 223 (Cal.)].
Supreme Court in Union of India and Others Vs Kamlakshi Finance Corporation (AIR 1992 SC 711):
The Honourable Supreme Court observed that the clause, “the order of the appellate authority is not ‘acceptable’ to the department” is an objectionable phrase by itself. Justice S. Ranganathan, speaking for the Court, enunciated:
“The mere fact that the order of the appellate authority is not ‘acceptable’ to the department - in itself an objectionable phrase - and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to the assessees and chaos in administration of tax laws.”
7. The Constitution of India, Judicial Discipline and Hierarchy
Importance of the principle of Judicial Discipline is well enshrined in the Constitution of India:
Article 141 of the Constitution
The law declared by the Supreme Court shall be binding on all courts within the territory of India. The general principles laid down by the Supreme Court are binding on each individual ‘including those who are not a party’ to an order.
Article 227 of the Constitution
Confers power of superintendence to the High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
It may also be noted that the ‘Supreme Court is not bound by its own decisions’; it may in some circumstances lay down a new law on the same very set of facts.
Bench Strength & Quorum Rules:
Subsequent lesser or co-equal strength benches are bound by the law laid down by a bench of larger strength. A bench of lesser quorum cannot disagree from the view of a larger bench.
The principle applies in such a manner that only a bench of co-equal strength may express an opinion, share doubt on the correctness of the view taken by an earlier co-equal strength bench, in which case the matter may be put for hearing before a Bench larger than the other co-equal bench which had pronounced the decision laying down the law the correctness of which is doubted [Commissioner of Central Excise v. Mahindra and Mahindra Ltd (2015) 13 SCC 441; see also State of W.B. Vs. Kesoram Industries Ltd. & Others, AIR 2005 SC 1646].
8. Judicial Discipline and Interest of Revenue
There may be a case where the adjudicating/appellate authority feels that if the orders of the higher appellate authorities should be followed “unreservedly”, it may cause loss to the revenue. Even in such cases, the principles of judicial discipline must be followed.
In-Built Sufficient Legal Mechanisms for Protection of Revenue
Sufficient legal mechanisms are provided in the legislations for eventualities wherein the Adjudicating/Appellate Authority feels that following the higher order may cause loss of revenue:
- CGST Act, 2017: Section 107 gives a statutory right to file an appeal even to the Revenue, whereby ‘any person’ and not just the taxable person, may file an appeal against any decision or order passed by an adjudicating authority.
- Central Excise Act, 1944: Section 35-E confers adequate powers on the department to review and file appeals.
Department Having Accepted Principles Cannot Take Contra Stand:
It is well-settled law that the department, having accepted the principles laid down in an earlier case, cannot be permitted to take a contra stand in subsequent cases. Refer to the Supreme Court ruling in Commissioner of C. Ex. v. Novapan Industries Ltd [(2017) 13 SCC 738, Civil Appeal No. 5278-5282 of 2001].
CBIC Circular No. 1063/2/2018-CX (16th February 2018): Contains references to orders of the Supreme Court, High Courts, and CESTAT accepted by the Department on which no review petitions or SLPs have been filed. As such, the department, having accepted the principles, is precluded from taking a contradictory position.
9. Exceptions to the Principles of Judicial Discipline
The noticee/appellant needs to keep in view some vital exceptions to the principle of judicial discipline if seeking to obtain relief. A decision of a higher appellate authority may exist on an issue, but that decision may not constitute a binding precedent under established legal jurisprudence:
A. “Per Incuriam” Decisions Are Not Binding Precedents
‘Incuria’ literally means ‘carelessness’. When courts ignore a statutory provision or other binding authority and proceed to pass judgement, the said decision is rendered per incuriam and need not necessarily be followed.
In Hyder Consulting (UK) Ltd. v. State of Orissa (CA 3148 of 2012, decided on 25th November 2014), the Supreme Court held:
“A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgements of this Court rendered per incuriam, it cannot be said that this Court has ‘declared the law’ on a given subject matter, if the relevant law was not duly considered by this Court in its decision.”
B. “Judgement Sub-Silentio” Is Not a Binding Precedent
A judgement/decision is sub-silentio when the particular point of law involved in the decision is not perceived by the court or present to its mind. Orders of a higher appellate authority in which the point in issue is either not argued or not considered by the Court, or where a decision is rendered without argument on that point, are not binding precedents.
i. Concept Defined in Salmond on Jurisprudence:
The Supreme Court in Municipal Corpn. of Delhi v. Gurnam Kaur [(1989) 1 SCC 101, paras 11 and 12] quotes Professor P.J. Fitzgerald (editor of Salmond on Jurisprudence, 12th Edn., p. 153):
“A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub-silentio.”
ii. Jurisprudential Facets of Sub-Silentio:
- Absence of Conscious Consideration: In State of U.P. v. Synthetics & Chemicals Ltd [1991 SCR (3) 64], the Apex Court observed: “A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgement is not the ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined.”
- Mere Directions Are Not Precedents: Decisions passing “mere directions” are sub-silentio and not binding precedents. When the Supreme Court gives a direction without laying down any principle of law, such mere direction is not a precedent. It is only where the Supreme Court lays down a principle of law that it amounts to a precedent [State of UP & Others Vs Jeet S Bisht (2007) 6 SCC 586; Delhi Admn. v. Manohar Lal (1999) 6 SCC 172].
- Leading Authorities on Sub-Silentio: State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr [(1991) 4 SCC 139], Arnit Das Vs. State of Bihar [(2000) 5 SCC 488], A-One Granites Vs. State of U.P. & Ors [(2001) 3 SCC 537], Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr [(2003) 7 SCC 197], and State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr [(2004) 11 SCC 26].
C. Statement of Law vs. Non-Law
Only “a statement of law in a decision is binding” and “statements on matters other than law have no binding force” [Municipal Committee, Amritsar v. Hazara Singh, (1975) 1 SCC 794].
D. Obiter-Dictum
“Obiter dictum” is an expression of opinion by a judge spoken in court or in a written judgement, but not essential to the decision. It is not legally binding as a precedent.
10. Examining Facts Before Applying Precedents: Lord Denning Dictum
The factual background of the case must be looked into before deciding whether reliance can be placed on a decision. Every judgement is not a binding precedent. Only that judgement of a higher court is binding upon subsequent courts ‘which is on the similar set of facts’. Judicial process demands that the court or adjudicating authority must arrive at the conclusion as to how the factual situation of the case in hand fits with the decision cited.
Lord Denning in State of Rajasthan vs. Ganeshi Lal (AIR 2008 SC 690):
“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”
In Ganeshi Lal, the Supreme Court held orders of the Labour Court and High Court unsustainable because they held the Law Department to be an ‘industry’ merely citing decisions where the Irrigation or Public Works Departments were held as ‘industry’, without demonstrating how the Law Department met the legal test of industry.
Arbitrator of Applicability or Inapplicability:
The formation of decision on the applicability or inapplicability of an alleged ‘binding precedent’ is a matter of formation of considered opinion of the person who alleges that a precedent is binding or not binding. Thus, the question of who is to arbitrate on the applicability or inapplicability of an alleged ‘binding precedent’ is more academic in nature.
11. Practical Takeaways from a Pleading Point of View
1. Law Declared During Pendency Operates From Inception
In case the Apex Court lays down the law during the pendency of any matter in hand, its decision becomes a binding precedent notwithstanding the fact that it was pronounced during the pendency stage, unless the Court indicates in the order that the law is to prevail prospectively. What is enunciated by the Supreme Court is the law from inception, and there is no prospective overruling unless explicitly indicated.
2. Match Factual Foundations Before Citing
Before placing reliance on a particular judgement, make sure the factual situation fits in with the factual situation of the cited decision. Straightaway reliance should never be placed without forming a concrete opinion on factual parity.
3. Remedy Against Judicial Indiscipline in Orders
In case judicial indiscipline is noticed in any order, a review application should be filed if the relevant law permits review. Where the law does not provide for review (such as under the GST law), a further appeal must be filed challenging the decision-making process of the concerned authority for violating judicial discipline.
4. Expressly Plead Judicial Indiscipline & Maxim Vigilantibus Non Dormientibus Jura Subveniunt
No authority is empowered to allow relief that is not sought by the Noticee/Appellant. This principle of dispensation of justice demands that the Noticee/Appellant include in pleadings this judicial indiscipline so that the first appellate authority is obliged to reach a finding in the appellate order. Such finding (or omission) will then be open for review before the Appellate Tribunal.
The maxim vigilantibus non dormientibus jura subveniunt provides that the law lends its assistance to one who is vigilant and not to one who is dormant or asleep about their rights. By exposing omissions in the open, superior appellate authorities will be compelled to record a finding on whether binding precedents were improperly omitted.
12. Conclusion
The Doctrine of Judicial Discipline not only promotes certainty and consistency in judicial decisions but also enables stakeholders to take decisions in the light of settled law. Before contending for a decision to be followed, not only this doctrine but also the relevant exceptions must be kept in mind.
It is equally important to keep an eye on the decisions of higher authorities on matters similar to those lying pending with us and put them forth before the adjudication or appellate authority at the earliest available opportunity. Let the justice prevail!