Precedent, and Departing From It

In one line

Every one of these systems treats an earlier decision as binding and every one of them has a way out, and the difference is how narrow the way out is.

In the wording a student can write in an exam: stare decisis is the principle that a court follows its own earlier decisions and those of courts above it; article 141 of the Indian Constitution states the vertical rule as a constitutional command, the 1966 Practice Statement states the British power to depart horizontally, and the American Supreme Court's power to overrule its own decisions is a matter of practice tempered by reliance.

Article 141

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Read it carefully.

"All courts within the territory of India." That includes every High Court and every subordinate court. Whether it includes the Supreme Court itself is not stated, and the settled position is that the Supreme Court is not bound by its own decisions, though it does not depart lightly.

"The law declared." The ratio decidendi, and not everything said. An observation not necessary to the decision is obiter and persuasive only.

A coordinate bench cannot overrule. A bench of two cannot depart from a decision of two, and must refer the matter. The practical rule is bench strength: a larger bench may overrule a smaller one, which is why the great Indian constitutional decisions are given by benches of five, seven, nine and thirteen judges.

Article 145(3) requires a minimum of five judges for a case involving a substantial question of law as to the interpretation of the Constitution, which is where the numbers come from.

The Indian sequence on constitutional amendment is the textbook demonstration: Sri Sankari Prasad Singh Deo five judges, Golak Nath eleven, Kesavananda Bharati thirteen, each overruling or displacing the last by weight of numbers.

The Practice Statement

Until 1966 the House of Lords held itself absolutely bound by its own decisions. On 26 July 1966 it issued Practice Statement (Judicial Precedent), [1966] 1 WLR 1234, stating that it would still treat former decisions as normally binding but would depart from a previous decision when it appeared right to do so.

Three things about it.

It is horizontal only. The Court of Appeal remains bound by its own decisions, subject to narrow exceptions, and every court remains bound by the courts above.

It survived the Constitutional Reform Act 2005. In Austin v. Mayor and Burgesses of the London Borough of Southwark, [2010] UKSC 28, the Supreme Court held it had no need to re-issue the Statement in its own name, because it was part of the established jurisprudence on the conduct of appeals transferred by section 40 of that Act and has as much effect in the Supreme Court as it had in the House of Lords.