Distinguishing and Overruling: Precedent as Creativity
Chapter Twenty
Syllabus topic 1, "Nature of judicial process"
Pages 83 to 86 of 356
In one line
The same doctrine that binds a judge also gives him the means to change the law, because deciding what an earlier case decided is itself a creative act.
In the wording a student can write in an exam: precedent is a tool of judicial creativity and not merely a limit on it, because a later court controls the meaning and reach of an earlier decision. It does so by distinguishing, which confines the earlier case to its facts; by narrowing or widening the ratio, since a ratio can be stated at several levels of generality; by overruling, which removes the earlier rule; and by prospective overruling, which changes the rule for the future while leaving past transactions undisturbed.
Why precedent is creative at all
A precedent does not come with a label saying how wide it is. The later court must decide what the earlier case decided, and that decision is not dictated by the earlier judgment.
Consider a decision that a hotel owes a duty of care to a guest injured by a defective lift. The ratio may be stated as: an occupier owes a duty to a person lawfully on the premises; or, a hotel owes a duty to its guests; or, an occupier owes a duty in respect of machinery under his control. Each is a faithful statement of the case. Which one governs the next dispute is chosen by the next court, and the choice makes law.
Distinguishing
What it is. Holding that the earlier decision does not apply because the material facts differ in a respect that matters.
Why it is the commonest technique. It requires no authority to overrule, no reference to a larger Bench and no admission that anything has changed. A court of any level can do it.
When it is legitimate. Where the difference relied on is one that the reasoning of the earlier case shows to be material. If the earlier decision rested on the occupier's control of the machinery, then a case where the machinery was not in his control is genuinely distinguishable.
When it is not. Where the difference is real but immaterial. This is the artificial distinguishing criticised in [The Merits and the Demerits of Precedent], and it is a way of not following a precedent while appearing to follow it.
Its creative effect. Repeated distinguishing shrinks a rule until it applies only to its own facts. The rule is not overruled; it is emptied.
Widening
The mirror image. A later court states the ratio at a higher level of generality than the earlier court needed, and the rule then covers cases the first court never considered.
The Indian expansion of Article 21 is a chain of widening. Maneka Gandhi v. Union of India, AIR 1978 SC 597, decided that a passport could not be impounded without a fair procedure. Read narrowly it is a case about passports. Read at the level the later cases adopted, it holds that any deprivation of personal liberty requires a procedure that is right, just and fair, and on that footing it supported everything from prison conditions to the right to livelihood.
Distinguishing and Overruling: Precedent as Creativity
Overruling
What it is. A competent court declares an earlier decision wrong, so that it ceases to be law.
Who may. Only a court whose decisions bind the court that gave the earlier decision, or the same court where it is free to depart from itself. Union of India v. Raghubir Singh, AIR 1989 SC 1933, and Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, govern.
The Indian instances worth naming. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, overruling I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, so far as it denied the power to amend Part III. Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, overruling S.P. Gupta v. President of India, AIR 1982 SC 149, on the primacy of the Chief Justice. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, overruling M.P. Sharma and Kharak Singh on privacy. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, overruling Suresh Kumar Koushal on section 377.
Puttaswamy is the cleanest to work.
Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.
Held. Unanimously, that M.P. Sharma and Kharak Singh stand overruled to the extent that they held the right to privacy not to be protected by the Constitution, and that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.
Why it matters here. It shows the full apparatus: a conflict between old and new lines of authority, a reference to a Bench large enough to resolve it, express overruling, and a new rule stated for the future. Nothing in the text of Article 21 changed.
Prospective overruling
What it is. The court overrules but declares that the new rule operates only from the date of the decision or from a later date, so that past transactions decided on the old rule are not disturbed.
Distinguishing and Overruling: Precedent as Creativity
Why it exists. To cure the retrospectivity objection. It is also, as [The Declaratory Theory and the Living Oracle] shows, an admission that the court is changing the law rather than declaring it.
The Indian origin. I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
Facts. The petitioners challenged Punjab and Mysore land reform legislation under Article 32, and, because both Acts were in the Ninth Schedule by virtue of the Seventeenth Amendment, the validity of that amendment; they argued that Sankari Prasad and Sajjan Singh were wrongly decided.
Held. By six to five, fundamental rights cannot be abridged by the amending procedure in Article 368, an amendment being law within Article 13(2). Sankari Prasad and Sajjan Singh were overruled on that point. To avoid unsettling amendments already made and acted upon, the Court applied prospective overruling so that the decision operated only for the future.
Why it matters here. It is the technique's Indian source, and it is used sparingly: the Court has since preferred to overrule with full retrospective effect and to deal with the consequences by moulding relief.
A worked example
An earlier Supreme Court decision holds that a government employee dismissed for misconduct is not entitled to back wages on reinstatement. A later Bench thinks this too harsh.
By distinguishing. It holds that the earlier case concerned dismissal for proved dishonesty, whereas this concerns a procedural defect, so the rule does not apply. The earlier decision survives, confined.
By widening the exception. Over the next decade, procedural defect, delay, victimisation and want of jurisdiction are each held to fall outside the rule, until the rule applies only to proved dishonesty.
By overruling. A larger Bench holds the earlier decision wrong and lays down that back wages follow reinstatement unless the employer proves gainful employment elsewhere.
By prospective overruling. The same, but only for dismissals after the date of judgment, so that settled claims are not reopened.
What each costs. Distinguishing is cheap and leaves the law untidy. Widening is gradual and honest but slow. Overruling is clean and retrospective. Prospective overruling is clean and fair but comes closest to legislating, which is why courts use it rarely.
What beginners get wrong
"Precedent is only a restraint." It is both restraint and instrument, which is exactly what MU's 2015 question is testing.
"Distinguishing is dishonest." Legitimate distinguishing is the ordinary and proper working of the doctrine. Only artificial distinguishing, on an immaterial difference, is the vice.
"Overruling is the main way law changes." It is the rare way. Most change is by distinguishing and by restatement of the ratio at a different level of generality, and neither announces itself.
Distinguishing and Overruling: Precedent as Creativity
Quick revision
- Precedent is a tool of creativity because the later court decides what the earlier case decided.
- A ratio can be stated at several levels of generality; choosing the level makes law.
- Distinguishing confines; repeated distinguishing empties a rule without overruling it.
- Widening extends; the Article 21 line from Maneka Gandhi is widening in action.
- Overruling removes; Kesavananda over Golak Nath, the Second Judges case over S.P. Gupta, Puttaswamy over M.P. Sharma and Kharak Singh, Navtej over Suresh Kumar Koushal.
- Prospective overruling changes the rule for the future only; Indian origin is Golak Nath, and it is used sparingly.
- Only a competent Bench may overrule; Raghubir Singh and Dawoodi Bohra govern.
Test yourself
1. Explain how precedent can be an instrument of creativity rather than only a limit on it. Because a precedent does not fix its own scope. The later court must decide what the earlier case decided, and a ratio can usually be stated at several levels of generality, each faithful to the decision. Choosing the level, confining the case by distinguishing, or widening it, are all acts that make law without any new legislation.
2. Distinguish legitimate from artificial distinguishing. Legitimate distinguishing rests on a difference in the material facts that the reasoning of the earlier case shows to matter. Artificial distinguishing rests on a difference that is real but immaterial, and is a way of declining to follow a precedent while appearing to follow it; it preserves consistency in form and destroys it in substance.
3. Name two Indian overrulings and say what each replaced. Kesavananda Bharati, AIR 1973 SC 1461, overruled Golak Nath so far as it denied Parliament the power to amend Part III, replacing it with the basic structure doctrine. Puttaswamy, (2017) 10 SCC 1, overruled M.P. Sharma and Kharak Singh to the extent that they denied a constitutional right to privacy, holding privacy protected under Article 21 and Part III.
4. What is prospective overruling, why does it exist, and why is it used rarely? It is an overruling whose new rule operates only from the date of the decision or later, so that past transactions are not unsettled. It exists to answer the objection that judicial change of the law is retrospective. It is used rarely because it comes closest of all the techniques to legislating, the court fixing a commencement date for a rule of its own making, and courts prefer to overrule fully and to mould relief instead.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.