An Interesting Question of Judicial Precedent

Written by  //  February 2, 2011  //  Law & The Judiciary  //  9 Comments

One of the joys of any legal positivist is the process of culling out the ratio of a decision and determining its precedential value. This exercise becomes all the more enjoyable in the case of conflicting opinions by the different judges on the Bench, often with members of the majority also differing on the reasoning they employ to arrive at the same conclusion.

One question that has often vexed me is that which presents itself in the following hypothetical-

A bench of five judges decides a particular case by a majority of 3:2, three of the judges coming to the conclusion X and two coming to the conclusion not-X. The minority of two, when coming to the conclusion not-X, relies on reasoning Y. Of the majority, two of the judges relied on reasoning not-Y in arriving at conclusion X. However, the third judge forming the majority agreed with the minority on reasoning Y, but for some reasons (maybe application to facts, or some countervailing principle) came to the final conclusion X. Now, in a subsequent case, if a lower Court is asked to decide on the validity of reasoning Y, is it bound by the fact that three of the judges in the previous case adopted reasoning Y? Or is it to ignore the reasoning of the minority, and hold that since two of the judges forming the majority adopted the reasoning not-Y, that is what is the ratio of the case? Is there a third option? Matters get further complicated if none of the judges forming the majority agree on the reasoning. In that case, if we have the three judge majority relying on reasoning Y, not-Y and Z respectively, what are lower courts bound by?

My initial view on this was based (in the absence of authority, which is usually an ominous sign), on the separation between the reasoning of a case, and the conclusion arrived at. I believed that although the majority may have come to the same conclusion on facts, the legal principles all the judges employed to arrive at their respective conclusions must be considered irrespective of whether the judges espousing those principles ended up in the majority or the minority. The reasons for this were two-fold: first, just because a judge disagreed on his assessment of facts did not seem a strong enough reason for ignoring his legal reasoning in arriving at his conclusion; secondly, for purely practical reasons, particularly in India, adopting the approach of ignoring the judgments of the minority would often leave lower courts with Supreme Court dicta with no real binding ratio (the decision in Kesavananda Bharati would be an ideal example).

Whatever my initial views may have been, I have now come across two sources that take the opposite stance- and given their stature in India and the United Kingdom respectively, I can do no better than defer to their wisdom. The Indian authority is Mr. Seervai, in his analysis of Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, AIR 1968 SC 1232. [“Birla Mills”] and the English authority is Lord Denning, in his decision in In Re Harper and Others v National Coal Board, [1974] Q.B. 614 [“In Re Harper”].

Birla Mills was a decision on the validity of delegated legislation, and involved the question of whether, and what kind of, guidelines are needed for an act of delegated legislation to be valid. It was heard by a Bench of seven judges, which can be broken down into three major factions: 2 judges held that valid delegation needs policy, and that the impugned enactment did not contain such policy guidelines[i]; 2 concurred on the point that policy guidelines were necessary but held that, on facts, there was such policy;[ii] and 3 held that no policy is needed, and hence the enactment was valid.[iii] Hence, 5 upheld the law and 2 quashed it. If the question of whether policy is needed arose, applying the rule I considered ‘logical’, I would have thought that since four of the seven judges thought that policy is needed, that is the ratio of the case. However, Mr Seervai argues that the decisions of the 2 dissenting judges have to be ignored. Hence, one should only look at the 5 who upheld the law. Since, among these 5, three held that no policy is needed, that should be taken to be the ratio of the case.[iv]

Lord Denning MR takes a very similar stance in In Re Harper. The issue before the Court of Appeal was whether the period of limitation for a claim in negligence began from the date when the claimant was aware of the facts constituting negligence, or from the date on which he became aware of the cause of action being made out in law. The binding House of Lords decision on the issue was Smith (and Dodd) v. Central Asbestos Co. Ltd., [1973] A.C. 518 [“Smith”]. There, the two Law Lords forming the minority had held that the limitation period was to be computed from the date when the claimant became aware of all the material facts. Two of the Law Lords forming the majority held that the limitation period began from the date when the claimant became aware of his cause of action in law. Lord Pearson, the “odd man out” ( per Lord Denning), held that the relevant date was the date on which the claimant became aware of the material facts. However, he disagreed with the minority on what this date was, and held that the date was the same date on which the claimant had also discovered that he had a cause of action in law. In other words, Lord Pearson agreed with two judges on what date the limitation period began from, and with the other two judges as to what the test for determining this date was.

Lord Denning’s solution to this conundrum is best read in his own words-

How then do we stand on the law? We have listened to a most helpful discussion by Mr. McCullough on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.

Applying these propositions to the decision in Smith, Lord Denning concluded that since the majority was not agreed on a single reasoning, there was no ratio that could be taken away from the case in terms of the correct reasoning. Hence, he does not rely on Smith as binding precedent and culls out the appropriate test from earlier precedent.

Before concluding, one important difference between Lord Denning’s approach and that adopted by Mr Seervai is to be noted. Lord Denning, in culling out “the reasoning on which the majority based their decision”, appears to require that all the judges of the majority should have agreed on a single line of reasoning. He does not hold that a subsequent Court is bound by the reasoning of a majority of the judges forming the majority (i.e. two judges out of a three judge majority). Applying this stance to Birla, since the majority disagreed on whether guidelines need to be laid down by Parliament, subsequent Courts would not be bound by any of the observations on whether guidelines are needed. This is different from Mr Seervai’s approach, and with due respect to him, seems preferable, for two reasons- first, it does not result in a minority of judges (numerically) laying down binding law for subsequent courts; and secondly, it ameliorates the concern over facts influencing binding legal precedent which I had mentioned earlier (as the basis of my initial view).

[i] Justice Wanchoo and Justice Shelat.

[ii] Justice Shah and Justice Vaidialingam.

[iii] Justice Sikri, Justice Hidayatullah and Justice Ramaswamy. Justice Sikri gave a separate opinion, but the basis of his decision was very similar to the other two.

[iv] Although the settled position in India today is that some basic guidelines are needed and that essential legislative functions cannot be delegated: In re Delhi Laws Act, AIR 1951 SC 332, that does not take away from Mr Seervai’s argument on the interpretation of Birla Mills.

9 Comments on "An Interesting Question of Judicial Precedent"

  1. Shantanu February 2, 2011 at 3:22 am ·

    An interesting aside is that Mr Seervai knew Lord Denning personally, who held Mr Seervai in very high regard.

  2. Niranjan February 2, 2011 at 11:12 am ·

    Shantanu, wonderful post. One of the most interesting decisions I’ve come across. A good example of why the common law is endlessly fascinating. Readers interested in this issue may refer to the case that is perhaps the best illustration of this difficulty – US v Bakke – discussed in Mihir Naniwadekar’s article in the Supreme Court Cases Journal (2009) in the context of whether the Supreme Court majority was correct in Asoka Kumar Thakur to reject strict scrutiny analysis. There is also excellent literature in the USA on whether Justice Powell’s opinion in Bakke constitutes the ratio of the case, which is cited and discussed by Mihir.

    I’m not entirely sure whether it is right to insist that stare decisis works only if the majority adopts a single line of reasoning – in the absence of authority pointing definitively one way or the other, I think I agree with you, because if ratio is said to be “material facts plus decision”, it seems to follow that it must be the “court” (ie the entire majority and not a majority of the members constituting it) whose decision counts. Interestingly, Senior Counsel RF Nariman seems to have taken the point in BR Enterprises (even this is ambiguous, para 19), but the Court unfortunately did not need to decide it.

  3. Sharan February 3, 2011 at 12:42 pm ·

    I think the approach of the Court itself was wrong. Practically I don’t see a solution for such a problem where the Court has already made such a mistake.
    In Birla for instance, there were 2 questions which ultimately controlled the outcome – 1) Whether policy guidelines are needed for an act of delegated legislation to be valid and 2) IF YES, are such guidelines present in the current situation. Perhaps a better approach would have been to decide it in this manner, so that the dilemma would not arise in the first place. The problem only seems to arise when the larger question i.e. is the delegated legislation in question valid, is answered as a whole – in which case it should only be precedent for cases in which the situation as a whole is the same (which is probably unlikely to happen).
    I can’t understand the basis for Mr. Seervai’s explanation, although there very well may be one. Perhaps the minority judgment is considered to be obiter. But in that case, any holding on whether policy is required is also obiter. Hence if Birla is deemed to provide a ratio on the issue of whether policy is required, I don’t see how the minority judges shouldn’t be considered.

  4. Prahalad February 14, 2011 at 11:26 am ·

    Brilliant piece. Extremely lucid description of a potentially confusing issue. To me, Lord Denning’s solution suggests that the court laid down no law at all. This doesn’t seem correct to me because surely, an important issue was decided in Keshavananda Bharati, for example. Further, the decision of a higher court binds the lower court and I think it would be dangerous to say that a High Court can ignore a Supreme Court decision on the ground that no one clear strand of reasoning emerges. If it is argued that this is not a significant danger as such cases are rare, I would reply by pointing out that these cases are often crucial and the legal questions complex, precisely when the need for guidance from higher courts is most essential.

    If we accept the premise that in cases of multiple opinions, there can be situations when no opinion is entirely in the majority or in the minority, then Lord Denning’s dictum seems inapplicable. The point that the “minority’s” view is being given precedence over the “majority” would also lose significance if we separate the decision on law from the order given in the case. I therefore believe your original reasoning would be most appropriate. If Mr. Seervai has given any authority for disregarding “minority” decisions, then of course, that would be a satisfactory solution.

    By the way, State of UP v. Jeet Bisht, (2007) 6 SCC 586, is a nice example of completely different reasoning by the two judges of the Division Bench yet giving the same order.

  5. Krishnaprasad February 18, 2011 at 10:47 am ·

    Wonderful post!

    But consider this passage from I.R. Coelho,

    “Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who upheld the validity of 29th Amendment did not subscribe to basic structure doctrine. The other six learned Judges (Chief Justice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ) upheld the 29th Amendment subject to it passing the test of basic structure doctrine. The 13th learned Judge (Khanna, J), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine.”

    Does this mean, according to Lord Denning and Mr. Seervai that ‘basic structure’ did not form part of the ratio in Kesavananda? Or does this rule not apply to a case where a group of judges reach no ultimate conclusion (as was the case with Sikri CJ, Shelat, Grover, Hegde, Mukherjee and Reddy JJ in Kesavananda)?

  6. Shantanu February 18, 2011 at 11:38 am ·


    Many thanks for your comments.

    The primary problem appears to be that most decisions ‘on law’ cannot really be divorced from the judge’s decision on fact. For instance, whether there was intent, is as much a legal test as a factual one. In such cases, ignoring the decision of the minority in entirety seems entirely appropriate. However, I agree with Sharan and Prahalad that when the a purely legal issue can be identified, then how a particular judge applies his legal conclusion to the facts should not affect the weight given to his decision.

    KP, the issue with Kesavananda which you highlight shows that the approach can lead to highly inconvenient results, either by allowing a numerical minority to make the law (following Mr Seervai) or by severely diluting the value of precedents (following Lord Denning). It may hence be ideal to adopt their approaches (of which I think Lord Denning’s is better) to mixed cases of law and fact, and not to decisions of purely legal questions. Thus, the issue of whether the Constitution has a basic structure to be protected, or the interpretation of Article 301, would be a purely legal question, on which judges could make law without applying it to the facts. In that case, majorities on the legal question can be determined without looking at what conclusions the individual judges arrived at on facts.

  7. Gautam February 18, 2011 at 1:02 pm ·

    Incidentally, Khanna J. in a subsequent decision (I think it was either Raj Narain or Minerva Mills, but I’m not sure) clarified the confusion caused by his majoro-dissent in Kesavananda Bharati, which put him firmly in the majority (I think he said he upheld the 29th Amendment subject to it passing the basic structure test). What Mr. Seervai has to say about such judicial contortions is, of course, a different matter entirely.

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