Comments on: An Interesting Question of Judicial Precedent http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent Powered by Webshore Thu, 02 Apr 2015 16:34:10 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Dr. Roach: No value in 'monatomic gold' supplement | Herpes Survival Kit http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-19709 Dr. Roach: No value in 'monatomic gold' supplement | Herpes Survival Kit Wed, 07 Jan 2015 01:07:15 +0000 http://www.criticaltwenties.in/?p=2174#comment-19709 [...] enfermedad inflamatoria intestinalNothing found for Herpes Simplex 2 Cure Herpes Simplex 2 SymptomsAn Interesting Question of Judicial Precedentbody { background: [...] [...] enfermedad inflamatoria intestinalNothing found for Herpes Simplex 2 Cure Herpes Simplex 2 SymptomsAn Interesting Question of Judicial Precedentbody { background: [...]

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]]> By: Gautam http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2629 Gautam Fri, 18 Feb 2011 13:02:49 +0000 http://www.criticaltwenties.in/?p=2174#comment-2629 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. 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.

]]> By: Shantanu http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2627 Shantanu Fri, 18 Feb 2011 11:38:28 +0000 http://www.criticaltwenties.in/?p=2174#comment-2627 Hi, 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. Hi,

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.

]]> By: Krishnaprasad http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2626 Krishnaprasad Fri, 18 Feb 2011 10:47:46 +0000 http://www.criticaltwenties.in/?p=2174#comment-2626 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)? 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)?

]]> By: Prahalad http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2567 Prahalad Mon, 14 Feb 2011 11:26:40 +0000 http://www.criticaltwenties.in/?p=2174#comment-2567 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. 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.

]]> By: Sharan http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2488 Sharan Thu, 03 Feb 2011 12:42:42 +0000 http://www.criticaltwenties.in/?p=2174#comment-2488 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. 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.

]]> By: Niranjan http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2482 Niranjan Wed, 02 Feb 2011 11:12:48 +0000 http://www.criticaltwenties.in/?p=2174#comment-2482 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. 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.

]]> By: Shantanu http://www.criticaltwenties.in/lawthejudiciary/an-interesting-question-of-judicial-precedent#comment-2480 Shantanu Wed, 02 Feb 2011 03:22:27 +0000 http://www.criticaltwenties.in/?p=2174#comment-2480 An interesting aside is that Mr Seervai knew Lord Denning personally, who held Mr Seervai in very high regard. An interesting aside is that Mr Seervai knew Lord Denning personally, who held Mr Seervai in very high regard.

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