One would have recently observed a few orders by the Hon’ble Supreme Court (and also the High Courts) wherein they include a caveat that the order is not to be treated as a precedent. We’ll call these “Non-Precedential Caveat”.

This article contends that such caveats exceed the judicial mandate of the Supreme Court and, by natural extension, the High Courts. The premise is that these caveats are antithetical to Article 14 and the principles of Common Law that are followed and recognised in India. Furthermore, it attacks future judicial discretion while conflicting with established judicial practices.

At the outset it is pertinent to note that there are a few commonly recognised exceptions to the law of precedent according to which the precedents do not apply to obiter dicta, consent order, per-incurriam judgement, sub-silento orders and petitions rejected in limine. Thus the article excludes such exceptions from the discussion.

Precedent is a previous instance taken as an example or a rule in a subsequent case by which similar acts or circumstances can be supported or justified and thus is a source of law [AIR Karamchri singh v. AIR Ltd]. The word “similar” (and not “identical”) implies that they must be substantially similar, without material difference. The role of precedents has its genesis within the common law system and thus forms the basis of India’s legal jurisprudence.

To understand the implications of these caveats, it’s essential to examine how they stand in opposition to the foundational doctrines of common law and constitutional mandates in India.

The Uncommon Law

By its very definition, common law derives its meaning from the practice of precedents-i.e., law derived from judicial decisions instead of from statutes. Founded on the doctrine of stare decisis (“to stand by things decided”), the rule of precedents is the basis of all judicial proceedings in our country. The same is also recognized by the Indian Constitution under Article-141, which states that “Law declared by Supreme Court to be binding on all courts”. The same has been recognised and reiterated multiple times by the Supreme Court. A recent one is by the seven-Judge bench in Aligarh Muslim University v. Naresh Agarwal, wherein J. Surya Kant observed:

stare decisis, a well-established doctrine that mandates the consistent application of legal principles once pronounced by authoritative courts. This principle is rooted in the idea that once a court has determined a rule applicable to a specific set of circumstances, it should be followed in all future cases involving substantially similar facts.

Hence, a disciplined application of this rule of precedents is so fundamental to common law that doing otherwise would be an antithesis to its foundation, making the law uncommon. 

While the doctrine of stare decisis is integral to common law, its importance is further amplified when viewed through the lens of constitutional guarantees of equality

The Flip-Side to Article 14

When we start looking at precedents from the perspective of constitutional values, the caveat is in conflict with Article-14. The article commands the state to ensure equality before law mandating similar treatment of those who are placed similarly, which is what the law of precedents seeks to deliver. It ensures that two different independent cases with substantially similar facts would receive the same treatment under law.

The violation of the constitutional guarantee of equality before law is evident in cases such as Sanjay Singh v. Enforcement Directorate (2024 SCC OnLine SC 1454), where the court, while granting bail to the accused, added:

We clarify that the concession given in the Court today would not be treated as a precedent.

What this says is that the concession (bail) provided in this case is only for this person and not for this set of facts, which is against the principles of judicial discretion and certainly prohibited by Article 14. These caveats can also be seen where the Supreme Court has used its extraordinary jurisdiction under Article 142, as in Union of India v. Pankaj Kumar Srivastava [2024 SCC OnLine SC 1647], wherein the court held that:

“We make it clear that these directions have been issued as a one-time measure in the exercise of the jurisdiction of this Court under Article 142 of the Constitution of India, and the same shall not be treated as a precedent”

Could the exercise of Article 142 powers justify the applicability of one-time measures? The answer lies in examining the broader implications on judicial fairness. The practice of such caveats can be equated to parliament passing a law for an individual, which would fail the rigour of Judicial Review. To treat similarly placed people differently is not just frowned upon by the constitution, but it is exactly what Article 14 prohibits, and hence such caveats are unconstitutional.

The rule of precedents is a rule of judicial discipline, ensuring judicial uniformity and avoiding disharmony in the application of law. And it is via Judicial interpretation that the courts are expected to maintain uniformity. 

Discrediting Future Judicial Interpretation

Consequently, these caveats undermine future judicial interpretation by restricting how courts can rely on past decisions. An order of today is interpreted by the future courts for authority. This interpretation is an important judicial activity which involves determining the ratio of the precedent and the facts that were its basis and then deciding whether that ratio (law) is applicable to the present set of facts.

To decide which laws (and precedents) apply to the present case is exactly what a judge is supposed to do. However, this important judicial activity is vitiated when an order includes the non-precedential caveat expecting courts to not interpret or find authority within its order. This is especially true when such caveats do not provide a reasonable justification. One such case is Shripal v. Karnataka Neravari Nigam Ltd (2024 SCC OnLine SC 799), wherein the court passed the order with the caveat, backing it with the reason that the case has “peculiar facts”:

This order is being passed in peculiar facts of the present case and shall not be treated as precedent

The issue with the above is that if the facts that form the basis of the decision are impossible to recur, they would be peculiar enough for future Judicial interpretations to disregard that as a precedent. However, if they are not peculiar enough and future interpretations could potentially use it as a precedent, then the presence of the caveat violates Article 14, as we saw above.

Attacking the Rule of Law

The rule of precedents is a tool that advances the rule of law as envisaged by Dicey and accepted by the Supreme Court. In Shanker Raju v. Union of India (2011), a two-judge bench of the Supreme Court observed that the legal doctrine of stare decisis is an integral part of Common Law and is indispensable.

The Supreme Court has well recognised the need of judicial discipline in following the rules of precedent to ensure adherence to the rule of law. In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the court observed that precedents advance the rule of law, which is a basic feature of the Constitution.  

And even 51 years later, in the recent case of Aligarh Muslim University v. Naresh Agarwal, 2024, a seven-judge bench strengthened the application of the rule of precedents and observed:

This Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. [Shah Faesal v. Union of India, (2020) 4 SCC 1].

Hence,stare decisis upholds the rule of law and forms a fundamental pillar of our legal framework, which ensures predictability, stability, and consistency, and fosters confidence in the legal system-all of which are building blocks of the rule of law.

Battle for Another Day

However, the non-precedential caveat could be a result of practical circumstances, especially when it comes to civil liberty cases. They appear to be a compromise between the State and the Judiciary when we observe instances where, even though the Hon’ble Supreme Court found the High Court’s bail order correct in law, it goes on to add the non-precedential caveat. One such instance is Enforcement Directorate v. Bineesh Kodiyeri, 2024 SCC OnLine SC 106, wherein the court upheld the High Court’s bail order yet modified it only to the extent that it should not be treated as a precedent:

Since the petitioner seeks cancellation of bail which is granted on 28th October, 2021 by the High Court and there is no allegation against the respondent that he is misused the liberty after granting the bail, we are not inclined to entertain the present petition. The special leave petition is, accordingly, dismissed. However, we clarify that the order impugned herein will not be treated as a precedent in any other matter.

One previous instance of this was in State of Nct of Delhi v. Devangana Kalit [SLP(Crl) No. 4288/2021], wherein the Delhi Police challenged the High Court order that granted bail to three accused in the Delhi Riots. The Supreme Court held that:

(we) observe that the impugned judgment cannot be treated as a precedent and may not be relied upon by any of the parties in any other proceedings. The idea was to protect the State against use of the judgment on enunciation of law qua interpretation of the provisions of the UAPA Act in a bail matter. The respondents have been on bail now for almost two years. We see no purpose in keeping these matters alive

And the growing trend of such non-precedential caveats can also be seen in cases involving the ED, such as in Enforcement Directorate v. Raghav Magunta [2023 SCC OnLine SC 2061] and Sanjay Singh’s bail order.

These orders seem to stem from a situation wherein the court wants to do justice; however, an implicit or explicit requirement of the State persuades the court to find this middle ground. This caveat thus enables the court to “provide justice” to that accused, but also leaves an arrow in the State’s quiver for use in a similar situation in the future. Thus, though the court wins that fight, it leaves the battle to be fought for another day.

Having explored the constitutional conflicts, it’s important to consider how these caveats affect the judiciary’s role in interpreting the law.

Judiciary Has the Last Word

Are the future courts powerless when faced with such caveats? They might help the state to make a persuasive argument, but their utility and legal basis depend solely on how the courts choose to interpret them. One may find subordinate the judiciary persuaded by such caveats; however, when it comes to the Constitutional Courts, there are instances where they have dismissed such caveats and applied the law laid down in the orders:

One of the earliest instances is in 1989 in D. Navinchandra & Co. vs Union Of India. The Bombay High Court was reviewing a judgment of the Hon’ble Supreme Court which consisted of an observation that the same shall not be treated as a precedent in view of the special facts and circumstances of the case. The High Court held that the judgment passed by the Supreme Court was based on identical facts and circumstances, and despite there being such an observation by the Supreme Court, it shall be treated as precedent.

3. Mr. Shringarpure further pointed out the operative part of the order of the Supreme Court wherein it has been recited as under :-

    “We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases, this order will not be treated as a precedent.”

In my judgment, the aforesaid observation cannot come in the way of granting the reliefs prayed for in this petition as the facts and circumstances governing the case of the Petitioner is identical to the facts which were before the Supreme Court. Hence this contention of Mr. Shringarpure is liable to be negatived.

And potentially, the judiciary might always turn a blind eye to such caveats when one observes what a two-judge Bench of Hon’ble Justices MR Shah and DY Chandrachud observed in Ramesh Bhavan Rathod vs Vishanbhai Hirabhai Makwana Makwana:

“The observation that the grant of bail to A-13 shall not be considered as a precedent for any other person who is accused in the FIR on grounds of parity does not constitute judicially appropriate reasoning. Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused.”

A court, in seeking to deliver justice for that specific case, may add a non-precedential caveat to navigate the constraints of its circumstances. However, such a caveat lacks the legal weight to restrain or impede a future bench of the Constitutional Court in its quest for justice. After all, the caveats are added by the courts, intended for the courts, and derive their utility solely from the interpretation of the courts.

Although not very common, the practice of including non-precedential caveats not only contravenes constitutional mandates but also disrupts the uniformity and predictability essential to the rule of law. It is imperative for the judiciary to reconsider this practice to uphold legal consistency, constitutional fairness, and public confidence in the legal system.