Binding versus Persuasive Precedent

A teacher receives two pieces of advice about marking. A circular from the examination board must be followed whatever she thinks of it. A tip from a respected teacher at another school she weighs, and adopts only if it makes sense. The first is binding; the second is persuasive. Courts receive both kinds of guidance from past decisions. Which kind a precedent is depends not on its quality but on which court decided it, which court now considers it, and whether it has lost authority. This note explains the distinction and the Indian hierarchy that fixes it; the general doctrine is in Note 24 and the anatomy of a judgment in Note 92.

1. The Distinction Stated

A binding precedent is a legal source of law: the later court must apply its ratio to materially similar facts, even if it thinks the decision wrong. A persuasive precedent is only a historical source, weighed by the standing of the court, the reputation of the judges, the quality of the reasoning, unanimity, age and later reception. A binding precedent can be avoided only by distinguishing it or showing it has lost authority; a persuasive one can simply be declined.

2. Salmond: Absolute and Conditional Authority

Salmond's refinement shows that 'binding' is a matter of degree. An absolutely authoritative precedent binds without exception: a subordinate court must follow the court above it even if convinced it is wrong, leaving correction to the higher court or the legislature. A conditionally authoritative precedent binds in the ordinary course, but the court may disregard it in special circumstances, as where it is clearly wrong in law, plainly unreasonable, or given without considering the relevant law. In Indian terms, a Supreme Court decision is absolutely binding on every High Court, while a Supreme Court bench faced with an earlier decision of its own is in something like Salmond's conditional position: it is bound in the ordinary course, but a larger bench may depart from the earlier view.

3. The Indian Hierarchy

The Supreme Court and Article 141

Article 141 gives precedent a constitutional basis: the law declared by the Supreme Court binds all courts in India, and Art. 144 requires all authorities, civil and judicial, to act in aid of the Supreme Court. But the Supreme Court is not bound by its own decisions.

The High Courts

A High Court's decisions bind all courts and tribunals subordinate to it within its territorial jurisdiction, a position supported by its power of superintendence under Art. 227. In East India Commercial Co. v Collector of Customs (1962) the Supreme Court held that the law declared by the highest court in a State binds the authorities and tribunals under its superintendence, which cannot ignore it. Within a High Court the bench-strength rules apply: a single judge is bound by a Division Bench, a Division Bench by a Full Bench. A High Court is not bound by the decisions of another High Court; they are persuasive, often highly so, especially on all-India statutes.

4. Persuasive Precedents

Other High Courts. A decision of one High Court does not bind another, but courts usually follow a well-reasoned decision of a sister court on the same statute to avoid conflicting interpretations across India, unless they are convinced it is wrong.

The Privy Council. Before the Constitution the Privy Council sat at the apex of the Indian judicial system and its decisions bound Indian courts. Its jurisdiction ended with the coming of the Supreme Court. In State of Bihar v Abdul Majid (1954) the Supreme Court held that it was not bound by decisions of the Privy Council, and allowed a dismissed government servant to sue the State for arrears of salary. Privy Council decisions are now persuasive, though often of great weight.

Foreign courts. English, American and Commonwealth decisions are freely cited but never bind; Golak Nath borrowed prospective overruling from the American case Sunburst Oil (1932). The limit of persuasive authority was shown in M.C. Mehta v Union of India (1987), where the Court declined to be bound by the exceptions of English law and fashioned a stricter rule of absolute liability suited to Indian conditions (Note 86).

Obiter and dissents. In England all obiter is persuasive. In India, considered obiter of the Supreme Court binds the High Courts (Note 92), but the obiter of a High Court is persuasive. A dissenting judgment is persuasive only, yet may later become law, as Khanna J's dissent in ADM Jabalpur (1976) was vindicated in K.S. Puttaswamy (2017).

5. When a Binding Precedent Ceases to Bind

6. Prospective Overruling

Overruling ordinarily reaches backwards, because on the declaratory theory the overruled decision was never the law. Prospective overruling limits that effect, declaring the old rule wrong while leaving past transactions under it undisturbed.

7. The English Contrast

English law reached a similar position by a different route. In London Street Tramways v London County Council (1898) the House of Lords held itself bound by its own decisions; only Parliament could correct its errors. By the Practice Statement of 1966 the Lords announced that they would normally treat their former decisions as binding but would depart from them when it appears right to do so, bearing in mind the special need for certainty in criminal law and the danger of disturbing settled arrangements. The UK Supreme Court, which replaced the House of Lords in 2009, follows the same practice. The Court of Appeal remains bound by its own decisions in civil cases subject to the three exceptions in Young v Bristol Aeroplane Co (1944): it must choose between two conflicting decisions of its own; it must not follow its own decision that cannot stand with a later House of Lords decision; and it need not follow its own decision given per incuriam.

8. The Two Compared

9. Evaluation

Binding precedent gives the law certainty and equality: litigants can predict outcomes, and like cases are decided alike across the country. Its cost is rigidity, a wrong decision binding lower courts until a higher court corrects it. Indian law softens that cost through the Supreme Court's freedom to depart from its own decisions, the bench-strength rules, the per incuriam and sub silentio exceptions and prospective overruling. Persuasive precedent keeps the law open to good ideas from elsewhere, as Golak Nath shows, without surrendering independence. The Indian system's distinctive feature is that one court's declarations, including its considered obiter, bind every other court in a country of this size, which makes the quality and consistency of Supreme Court decisions a matter of national importance.

10. Frequently Asked Questions

Q. What is the difference between binding and persuasive precedent?
A. A binding precedent must be followed by the later court even if it thinks the decision wrong, because of its place in the judicial hierarchy. A persuasive precedent may be followed if its reasoning convinces, but the court is free to decline it.

Q. Is the Supreme Court bound by its own decisions?
A. Not absolutely. Art. 141 binds all courts other than the Supreme Court (Bengal Immunity, 1955). But within the Court a larger or coordinate bench binds a smaller or equal one, and a bench that doubts an earlier decision must refer it to a larger bench (Dawoodi Bohra, 2005; Pranay Sethi, 2017).

Q. Are decisions of one High Court binding on another High Court?
A. No. They are persuasive only, though courts generally follow a well-reasoned decision of a sister High Court on an all-India statute. A High Court's decision binds only the courts and tribunals subordinate to it.

See also: Note 24 (judicial precedent), Note 92 (ratio decidendi versus obiter dicta), Note 22 (sources of law), Note 43 (legal reasoning), Note 86 (strict versus absolute liability).