This Article is written by Bushra Malik, student of B.A. LL.B. (Hons.) from Galgotias University.
DOCTRINE OF PRECEDENT
Meaning & Definition –
A precedent is a rule which is binding to all subordinate Courts and used when deciding the subsequent with the same facts and circumstances. When a Court has taken previous decision as a source for deciding their current case which falls under same circumstances and facts, it is called Judicial Precedent. All those precedents which are enforceable by law are known as judicial precedent. According to Oxford Dictionary, Precedent means “A previous instance or case which is or may be taken as an example of rule for subsequent cases”. (We can also consider that by which similar act or circumstances are being supported or justified).
· High Courts –
All the judgments of the High Court of particular state are binding to subordinate Courts. Also, the judgment of another High Court has a persuasive value where lower courts have jurisdiction within another High Court. In case of conflict between the two High Court decisions, the one which has control over the subordinate Court will prevail. In the High Court, decisions taken by larger Bench are binding on a smaller Bench whereas a Bench of equal authority has no mandate over another Bench. But they cannot overrule each other’s decisions.
· Article 225 of the Constitution of India states that:
All of the High Courts’ jurisdictions, the law enforced by them, the respective powers of their judges in relation to the Court’s administration of justice, and their rule-making power, must all be the same as they enjoyed right before the constitution commenced. The Supreme Court is also knows as Apex Court which is the highest judicial body in India. The law declared by it shall be followed by all subordinate Courts however it is not bound to its own decisions, or by those of Privy Council or Federal Court.
· Power of Supreme Court under Article 141 of the Indian Constitution –
The expression of the Supreme Court authority over all other Court enshrines in this Article. It says that “The law declared by the Supreme Court shall be binding on all the Courts within the territory of India”. Here the term ‘law declared’ has been interpreted as being the superior Court, when it gives final words by the decree, judgment, or order then no Court can ignore the law laid down by the Supreme Court. In their decisions, the judges have to provide the two types of statement that is Ratio Decidendi (reason for the decision) and Obiter Dicta (View of the decision).
In the case of Donoghue v. Stevenson (1932), after drinking ginger beer in which there was a dead snail the customer became ill then he sued the manufacturer. There is ratio decidendi in the case that is ‘a person owes a duty of care to those who he can reasonably foresee will affect by his actions’. There was a major change after this judgment in the law of Negligence.
DOCTRINE OF REPUGNANCY
According to the Blacks’ Law Dictionary repugnancy has been defined as a Contradiction or inconsistency between the two or more laws, or any legal document. The doctrine of repugnancy has been defined under Article 254 of the Indian Constitution where the Article describes the power of parliament when there is a matter of repugnancy.
This Article also depicts the nature of a state being federal in nature in which the powers have been divided between the Centre and State and in case of any repugnancy arises the Central laws or the decision will prevail. Where the powers are being divided by the virtue of Article 246 of the Indian Constitution and have been divided into three lists i.e., List-I (Union List), List-II (State List) and List-III (Concurrent List). In the concurrent list, the law-making power has been given to both Centre and the States.
The doctrine of repugnancy has three-point heads:
- There is a clear inconsistency between the Centre and State law.
- That inconsistency is incompatible.
- That inconsistency can be resolved only by obeying the one and disobeying the other.
Then in this situation, the doctrine of repugnancy comes into play and makes the parliamentary laws applicable.
The application of this doctrine arises when there is a conflict between the Central Act and the State Act on the concurrent matters and solution to which is the doctrine of repugnancy is to be applied.
- In the case of National Engineering Industries Ltd. v. Shri Kishan Bhageria, the test for applying the doctrine of repugnancy came where one law prevails over the other.
- In the case M. Karunanidhi v. Union of India, it was held that the state act will become void by the virtue of the doctrine of repugnancy when there is any inconsistency between the Centre and the State Act.
DOCTRINE OF SEVERABILITY AND DOCTRINE OF ECLIPSE
We have many laws before the Fundamental Rights. So, Article 13(1) says that all those laws which are not consisting of Fundamental Rights will be declared as void or vice-versa. For instance, there was an Educational Act in 1930 which had many clauses like How to appoint the chairman, allocation of the fund, age group of children, etc. Among all of them, there was one clause that says that this specific caste and children will not be admitted to the school. From 1950 after the commencement of the Constitution, this clause is against Fundamental Right and will be void. For this kind of circumstances, there are two doctrines-
Doctrine of Severability – It means to separate.
For all the pre-constitutional laws we have to use a filter that a law respects the Fundamental Rights or not and all those laws which are consisting within Fundamental Rights only those are valid. All those which are not consisting we have to separate them.
In the case of A.K Gopalan v. State of Madras, The Preventive Detention Act was challenged. According to Section 14, any person who is detained under this Act then he cannot disclose the ground of detention. It is shown that this section is a violation of Fundamental Rights. Now applying the doctrine of severability, we filter out the Preventive Detention Act then only Section 14 is inconsistent with Fundamental Rights. So, we will separate the provision of Section 14 from the Act, and rest will be valid.
Doctrine of Eclipse – It means to hide.
As it is known that there are three types of Volcano that are sleeping, active, and dead. In the same manner Section 14 of Preventive Detention Act was not a dead Section but only a sleeping Section. This Doctrine overshadowed certain Sections or Clauses which are inconsistent with Fundamental Rights.
In the case of Bhikhaji v. State of Madhya Pradesh, Berar Motor Vehicle Act was challenged in 1947. There were certain Sections that empowered the State Government to take over entire Motor Transport Business and after 1950 all those Sections violated Article 19 (1) (G). After applying the doctrine it says that the Fundamental Rights will prevail over these Sections and become inoperative. Furthermore, there were certain amendments in Article 19(6) after this the Government was authorized to monopolize a certain business.
DOCTRINE OF COLOURABLE LEGISLATION
Meaning & Definition –
It is a guiding principle of profound effectiveness in establishing laws relating to legislative powers. The Colorable Legislation Doctrine is focused on the core elements of the Doctrine of Separation of Power. It has been provided under Article 246 of Indian Constitution. It ensures that a balance of power is struck between the different components of the State, i.e., between the Legislature, the Executive, and the Judiciary. The legislature’s key role is in imposing rules. Whenever the government wants to transfer this balance of power to itself, it introduces the Doctrine of Colorable Legislation to take care of Legislative Accountability.
For this, Black’s Law Dictionary defines ‘Colorable’ as:
1. Appearing to be true, valid, or right.
2. Intended to deceive; counterfeit.
3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.
The doctrine of Colourable Legislation based upon the maxim “Quando aliquid prohibetur ex directo, prohibeturet per obliquum”. This maxim denotes that “when anything is prohibited directly, it is also prohibited indirectly”. In other words, it means “Whatever legislature can’t do directly, it can’t do indirectly”.
It is a well evident and fully discussed by the Supreme Court in the case of K.C. Gajapati Narayan Deo v. Orissa, here decision treated with the specific subject to be settled as a law. This ruling was confirmed in the Supreme Court decision of Sonapur Tea Co. v. Deputy Commissioner.
DOCTRINE OF LACHES
For laymen, Laches means delay. As per the Black’s Law Dictionary, the word Laches means “Unreasonable delay in pursuing a right or claim – always an equitable one – in a way that prejudices the party against whom relief is sought – Also termed ‘sleeping on rights’
In this legal doctrine, a legal right cannot be claimed if there is an unreasonable delay in asserting that right has prejudiced the defendant.
This was originated from a Latin maxim “vigilantibus non dormientibus aequitas subvenit” means “equity aids the vigilant and not those who sleep on their rights.” It means that if you want the remedy then claim it in the reasonable time.
Now the very purpose of this doctrine is to bring actions in a reasonable time. However, this concept is sometimes misunderstood by the limitation but the difference lies on the ground of reasonableness. In the statute of limitations, there is a specified time period defined by law under which a claim can be brought but this doctrine depends upon the judge’s determination too.
The main elements of the doctrine are-
1. There was knowledge of the legal right.
2. There was an unreasonable delay in bringing that action.
3. Delay in action has hurt the opponent.
Delay in exercising fundamental rights cannot be denied and is not justified as they are the basic rights of citizens. In the case of Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr., the Apex Court has wonderfully defined and explained the concept of laches.
- “LAW OF PRECEDENT.” (n.d.). Available at: http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf [Accessed 29 April, 2020].
- Donoghue v. Stevenson  A.C. 562,  UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317,  W.N. 139.
- CHAPTER-V THE DOCTRINE OF PRECEDENT AND THE CONSTITUTIONAL FRAME WORK. (n.d.). Available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/96381/10/10_chapter%205.pdf [Accessed 1 May, 2020].
- National Engineering Industries Ltd. v. Shri Kishan Bhageria, 1988 AIR 329.
- M. Karunanidhi v. Union of India, 1979 AIR 898.
- Bhikhaji v. State of Madhya Pradesh,1955 AIR 781, 1955 SCR (2) 589.
- A.k Gopalan v. State of Madras, AIR 1950 SC 27.
- K.C. Gajapati Narayan Deo v. Orissa, 1955 AIR 781, 1955 SCR (2) 589.
- Sonapur Tea Co. v. Deputy Commissioner,AIR 1953 Ori 185.
- Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr.,2006 (11) SCC 464.
- CONTEMPORARY DEVELOPMENT IN CONSTITUTION; Available at: http://www.thelexrepository.com/contemporary-development-in-the-field-of-constitutional-law-in-india/
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