Diverge and Conquer: Why Judicial Divergence is Healthy for the Indian Judicial Framework

Introduction

India follows a judicial system that maintains a pyramidal hierarchy in its functioning, adhering to the doctrine of stare decisis and the express constitutional mandate under Article 141, which establishes that the law declared by the Supreme Court is binding on all courts.

While the United States lacks a constitutional provision for vertical stare decisis, it proposes an intriguing question: “Why must one follow the Supreme Court when it is not an infallible power that interprets incorrectly at times. Would such adherence not violate the judicial oath to affirm the constitution above all else?”

India, on the other hand, has created what may be seen as an infinite loop of the snake biting its tail. It has protected the concept of vertical stare decisis and constitutionally mandated it under Article 141. This raises a complex dilemma: to obey or not to obey in cases of adverse decisions - a choice that, in either direction, results in compromising the constitutional mandates.

In recent times, the High Courts have encountered circumstances compelling them to go against or depart from the Supreme Court verdicts in exceptional cases by invoking the doctrines of per incuriam and sub silentio.

This blog seeks to examine the doctrine of stare decisis as fundamentally significant for judicial discipline and consistency in the country’s judicial framework. The first section outlines the scope and jurisprudential importance of the doctrine, examining how Article 141 of the Constitution establishes an obligation on lower courts to follow the Supreme Court precedents, thus ensuring the certainty, stability, and predictability of law. The second section explores the recent developments in judicial practices where courts, particularly the High Courts, have occasionally departed from or questioned the binding nature of the SC decisions, invoking exceptions such as per incuriam and sub silentio. This section attempts to examine whether such instances of divergence signify an erosion of hierarchical discipline or portray a constructive form of judicial dialogue. We also analyse comparative jurisdictions to understand how judicial divergence is dealt with within their legal frameworks. In the third segment, we analyse solutions that India may draw upon, inspired by foreign jurisdictions, to strengthen its judicial democracy.

Part I: The Doctrine of Stare Decisis: Scope and Jurisprudential Significance

The pyramidal hierarchy of the Indian judiciary has been able to maintain its integrity and prevent itself from collapsing into any sort of interpretative chaos because of the doctrine of stare decisis. It clearly delineates the judicial policy of adhering to settled principles of law and ensures predictability and stability in the system. Having roots in the Common Law, it has, so far, been able to keep the foundation of complex judicial systems, like ours, stable by preventing conflicting or arbitrary rulings. 

According to the doctrine, a court is to follow accepted and established legal principles as set out in previous cases decided by the same court as well as by other courts of equal or higher rank in respect of litigated and necessarily decided issues, to ensure that there is a uniformity in the ideas of justice of the country and their execution, and to prevent an arbitrary interpretation of law. 

The doctrine operates in two primary dimensions, including a horizontal application and a vertical stare decisis. While horizontal requires a court to follow its own prior decisions to ensure internal consistency, vertical stare decisis is much more interesting. It suggests that all lower courts are bound to abide by the law as settled by a higher-ranked court in the hierarchy to create a unified legal system. 

While most Common Law countries do not provide a constitutional mandate for stare decisis, India gave the doctrine constitutional recognition. Vertical stare decisis in particular was constitutionally mandated under Article 141, which declares that the law pronounced by the Supreme Court is binding on all courts within the territory of India, thus embodying the obligation of lower courts to adhere to Supreme Court precedents across the country. 

The ratio decidendi of such judgments becomes binding for the courts for future cases while deciding cases with similar facts or legal principles. The Supreme Court clarified in B. Shama Rao v. UT of Pondicherry, 1967 SCC OnLine SC 29, that the precedent applied must focus on the true principle decided in the case and not isolated phrases divorced from context.

While the general rule is quite simple, that of Article 141 binding lower courts to abide by the precedent set by the Supreme Court, there are limitations to the doctrine. Judgments delivered per incuriam or sub silentio do not hold precedential value, as upheld by the Supreme Court in the case of State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139. The question, therefore, is whether such an exception can be invoked by a High Court to declare the Supreme Court judgment per incuriam. 

Part II: Recent Developments and a Comparative Analysis

A similar doctrinal dilemma arose before the Kerala High Court in Haris K.M. v. Jahfar, 2020 SCC OnLine Ker 4009 in 2020. In this case, the High Court departed from a previous Supreme Court decision by declaring it per incuriam, on the grounds that the court had overlooked relevant statutory provisions, thereby rendering the decision non-binding. This sparked a rigorous doctrinal debate regarding the constitutional mandate of vertical stare decisis under Article 141, bringing into question whether a High Court could lawfully decline to follow a Supreme Court ruling in exceptional cases of judicial oversight.

This pattern raises an important question for India’s legal frameworks, which is whether a subordinate court can override a Supreme Court law by declaring it per incuriam, despite Article 141’s mandate?

This doctrine of per incuriam refers to a decision given in ignorance or disregard of a relevant statutory provision or binding precedent. Such judgments, because they are rendered without consideration of material legal authorities, do not establish binding precedent and may be legitimately departed from by subsequent courts.

This doctrine serves as an important exception to the doctrine of stare decisis. It introduces flexibility, acknowledging that the Supreme Court is not infallible and that incorrect judgments, if left unquestioned, could lead to grave injustice. Reaffirming this ideal, the Supreme Court itself has held that per incuriam judgments are not binding in nature.

Naturally, an overuse of this exception would threaten a breakdown of the system, which is why we need a framework delineating when it is permissible to diverge from such binding precedents. However, the constitutional provisions of India make flexibility with regard to stare decisis far harder to achieve than in comparative jurisdictions, given its explicit mandate for vertical stare decisis. It is thus imperative for us to draw lessons from comparative constitutional frameworks, which, while lacking identical constitutional mandates, have developed sorted systems to balance both stare decisis and judicial autonomy to correct rulings.

For instance, in the USA, the doctrine of stare decisis has witnessed a gradual relaxation in recent years. While some critics argue that this trend is detrimental to judicial democracy, a closer scrutiny would reveal that it merely prioritises constitutional fidelity over mere adherence to precedent. The American judiciary has established clear exceptions permitting a departure from previous decisions, specifically where existing precedents are “egregiously wrong” or are in direct conflict with the constitutional provisions. Additionally, they have mandated the courts to provide a detailed reasoning for justifying such departures from settled principles, thereby ensuring that the threshold is high and safeguarded against arbitrary and subjective decisions. 

Critics suggest that even such delineation is flawed since every judge might find a “faulty reasoning” to justify non-compliance. However, we refute this view, since it is better for such judicial subjectivity to be transparently channelled and be determined by a constitutional test established by the court, than relying on inadequately scrutinised precedents that further injustice with no judicial recourse.

Another relevant jurisdiction we may consider is that of South Africa. Although the constitutional framework does not expressly mandate a system of vertical stare decisis led by an apex court, South African courts are constitutionally empowered to depart from established precedents when required to uphold constitutional principles. In such cases, constitutional correctness is prioritised over strict hierarchical adherence, ensuring that justice is served in line with the principles and spirit of the Constitution.

These comparative perspectives suggest that flexibility in adhering to precedent is not merely a matter of judicial convenience but is necessary for safeguarding constitutional values.

Part III: The Way Forward for India

India’s constitutional mandate under Article 141 demands a strict adherence to the Supreme Court precedents to ensure judicial discipline and certainty. However, it has become evident from the recent judicial divergence and comparative experiences that there is a pressing requirement for developing a framework that preserves this discipline while also allowing corrective flexibility where needed. We theorise two potential solutions to resolve such a discrepancy.

Firstly, while the High Court should retain the power to declare a Supreme Court judgment as per incuriam, the threshold for the judgment being per incuriam (or sub silentio) must be clearly delineated by the Supreme Court to have a narrowly tailored meaning.

India can draw inspiration from the frameworks developed by the USA and South Africa, as discussed previously in the blog. Although these jurisdictions also do not possess fully developed frameworks for divergence from settled principles, we must analyse their established procedures and how we can translate them into an Indian context. Such translation would allow for flexibility, which does not undermine the integrity of our judicial framework while also making it versatile.

For this, the courts may consider developing a constitutional test, guided by such comparative experiences, to provide a principled scope for exceptions that safeguard the constitutional principles. This constitutional test must be a narrowly tailored and well-defined criterion that is able to resolve the issue of settling such questions of law.

Secondly, a procedural reform may be introduced through the establishment of a review mechanism as a part of the Supreme Court’s original jurisdiction.

This mechanism would solve two primary problems. Firstly, it would enable a speedy identification and correction of flawed precedents, ensuring that sound law prevails and ambiguity is minimised; and secondly, it would eliminate the inconsistency arising from divergent rulings given by the courts. This would be separate from the Supreme Court’s power under Article 137.

This review mechanism will primarily operate at a judicial level only, not as an appellate procedure, but as a reassessment of a question of law. This would ensure the prevention of double litigation, while also facilitating a change to maintain flexibility within the judicial framework and ensure the law remains dynamic within the country. This is similar to the provision provided under Section 436 (1) and 436 (2) of BNSS, which empowers the trial court to refer a case pending before it to the High Court for it to clarify or settle the question of law arising in the hearing of such a case.

In this mechanism, just as trial courts state a case setting out its opinions and the reasons therefor, and refer the same to the High Court, the suggested review mechanism may be incorporated within the original jurisdiction of the Supreme Court, following a similar model to resolve the discrepancy arising out of such unsettled principles of law without it becoming an elongated and encumbering procedure.

A counterargument may be advanced by the critics here to the effect that such a review mechanism would lead to judicial overburdening. However, it is argued that an unsettled principle of law may open floodgates for a lot more litigation, whereas, by contrast, a narrowly tailored, single instance procedure adjudicated and conducted by the judiciary offers a more advantageous solution for such inconsistencies.

Conclusion

While the doctrine of stare decisis has proven to provide stability and certainty in all judicial frameworks for decades, including India, there is an evident tension within this rigid mandate between ensuring institutional uniformity and judicial autonomy to correct flawed precedents, as evident in the recent judicial divergences exemplified by cases such as Haris KM v. Jahfar. 

Undoubtedly, the Supreme Court is not an infallible interpreter of the Constitution, and to provide its judgments a blanket constitutional protection is an indication of significant risks. The foundation question this thesis posed was whether rigidly adhering to the Supreme Court decisions simply because they have been pronounced aligns with our constitutional oath to uphold the Constitution’s principles. It is evident from the evolving laws and developments that society believes in affirming principles enshrined in our constitution rather than authorities binding us out of pure obligations. 

It is in this light that India must draw from its comparative jurisdictions, such as the United States and South Africa, to refine its doctrine to narrowly tailor the per incuriam exception through a clear constitutional test. Additionally, procedural review mechanisms may also be accommodated within the original jurisdiction of the Supreme Court to deal with such judicial differences cooperatively and efficiently.

Ultimately, it is this enabling of structured judicial divergence under strict procedural and doctrinal safeguards that can break the loop and save the snake from fatal internal bleeding that is the growing judicial indiscipline and a loss of integrity writ large over our justice systems.

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This article has been authored by Anusha Agarwal, Associate Editor and Preeshaa Mishra, Assistant Editor at RSRR. It is a part of the RSRR Editor's Column Series.