The doctrine of stare decisis confers importance on every ruling or pronouncement of every judicial and quasi-judicial bodies like tribunals. While what the SC rules is the law of the land, as per Art.141 of the Constitution of India, and act as precedents which lower courts and authorities are bound to follow, the rulings of lower courts also act as precedent in their respective jurisdictions so long as they do not go counter to any past decision of any superior court or legal authority.
Foreign Judgments may be relied on by Indian courts, but only very carefully. Resort to foreign Law is not justified for deciding a question arising on an Indian statute unless it is such that it cannot be reasonably understood without such assistance.
Decisions themselves are not precedents. The reason(s) for the decision is the precedent – the ratio decidendi, or the distillate of judicial wisdom. Precedents are of two types:
Authoritative precedents – those that deciding authorities are bound to follow: Usually these are precedents set by superior courts, or of peer courts with higher bench strength.
Persuasive precedents – precedents which judges can be persuaded to follow, but are not bound to. These include judgments of peer courts (eg, for an HC, judgments of other HCs on same/ similar point) or rulings of the same HC delivered by the same bench strength. Foreign judgments are also considered persuasive judgements in cases where the same or similar issue has not be adjudicated upon by any Indian Court but there is precedent available in some foreign judgment/ ruling.
A constitutional Court cannot be restrained from referring to any foreign judgments; this exercise/practice is expected to proceed with utmost care before applying the ratio decidendi of a foreign Court’s decision to decide a domestic dispute. Various countries, specifically those following common law principles, have borrowed doctrines and precedents from one another. India is no exception. There are innumerable instances when the Indian Courts have relied on the judgments of foreign Courts.
A large proportion of Indian Laws themselves have been borrowed from various countries, primarily the United Kingdom, and adopted with specific alterations to accommodate Indian circumstances and legislative intent.
The Apex Court of India has a catena of cases, for example, in State of West Bengal v. B.K. Mondal and Sons, AIR 1962 SC 779 the SC held that “resort to English Law is not justified for deciding a question arising on an Indian statute unless it is such that it cannot be reasonably understood without such assistance”.
… “If the words used in the Indian statute are obscure or ambiguous perhaps it may be permissible in interpreting them to examine the background of the law or to derive assistance from English decisions bearing on the point”.
Therefore, in cases where there is no domestic law or no domestic ruling on the question before the Court, the Supreme Court of India has depended on foreign judgments. However, only persuasive value should be assigned to foreign precedents, contrary to existing the domestic law of the land.
In M.H. Hoskot v. State of Maharashtra AIR 1978 SC 802, the Supreme Court explicitly referred to American decisions to hold that poor and needy people were entitled to receive free legal aid. The idea of 'substantive due process' was interpreted to imply that free legal aids are an 'imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance' inexplicit in Art. 21. The SC further said that “Free legal assistance at State cost is now treated as part of the fundamental rights of a person accused of an offence which may involve jeopardy to his life or personal liberty, if he is unable to engage a lawyer due to his indigence, or unable to secure legal services on account of other reasons”.
In this case reference was placed on the 'clear and present danger test for placing controls on speech that was developed in Schenek v. United States, 249 U.S. 47 (1919).
Again, while determining the doctrine of Basic Structure in Kesavananda Bharati v. State Of Kerala and Anr AIR 1973 SC 1420, the Supreme Court of India said that the doctrine's disapproval could not be justified just because it's vague and lays down uncertain test. A complete list of the essential elements comprising the basic structure cannot be itemized is no ground that these do not exist. Quoting Lord Ried in Ridge v. Baldwin  A.C. 40, Sikri C.J., observed, "in modern times opinions have sometimes been expressed that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. However, negligence is equally insusceptible of exact definition what a reasonable man would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more defined than that."
Neither of these decisions are binding upon India's Apex court, but they have high persuasive value and Courts may legitimately turn to them for assistance.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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