Are Precedents Purely Constitutive and NOT Abrogative? : A Critical Fact-Check
Updated: Feb 3
By Aneesa Firdaus and Ishan Shahi
Judicial precedents possess a binding authority in almost all of the democratically elected countries. Books, articles, and many research works define the nature of precedent as ‘constitutive’. It is of common acceptance that precedents cannot and should not be ‘abrogative’ in nature. If that is so, how do cases of judicial review, in which laws are mostly struck down, set precedents which courts follow in their future judgments? Therefore, this article explores whether the nature of precedent is ‘purely constitutive’ and not ‘abrogative’? Much has not been done in this field which makes this topic worthy of in-depth research.
Judicial Review: Striking Down Laws as Unconstitutional
Judiciary has the power to declare a law as illegal, unconstitutional, or invalid if it is found to be ultra-vires to the constitution. This power is called the power of Judicial Review, conferred on judiciary to keep a check on the other two organs of the state so that they do not abuse their powers, as suggested by Montesquieu (Pandey, 2019).
When closely examined, judicial review is actually the power given to judges to "abrogate" the laws set by legislature. The whole debate about "do judges make laws?" revolves around a straightforward logic: the legislature represents the will of people, thus, the responsibility of making the laws is conferred on it. While one side of the debate says that judges merely declare laws, the other side argues that judges, in fact, make laws. Those who believe that judges merely declare laws argue that law-making is simply legislature's job, and the judiciary cannot and should not do it. Similar are the arguments of the advocates of judicial restraint, who believe that judges should not enter legislature's arena because the legislature is democratically elected by the citizens of a nation. Thus, it expresses the will of the nation's people, even if it is expressed "imperfectly" (Katju, 2012).
Given this line of argument, if the courts are not equipped enough to make laws because law-making requires the support of the nation's people, then why have the courts been given the power to strike down the same laws that the legislature has made?
Judicial Review confers a power on the court to abrogate unconstitutional laws. Nevertheless, sometimes, even unconstitutional laws are settled laws and are, after all, made by the legislature. If the nature of precedent is purely constitutive and not abrogative, what kind of precedents would be set in the cases where judicial review is done and where a specific law has been annulled by the court of law? Are these ‘abrogative precedents’ not good in the eyes of the law? If yes, is following them against judicial discipline?
Are abrogative precedents not binding?
According to the doctrine of stare decisis, it is mandatory for the lower courts to follow the precedents set up by the higher courts. However, some precedents are not binding on the lower courts because their authority is reduced due to certain factors. These factors include affirmation of a different ground or reversal on appeal, abrogated decision, inconsistency with earlier court decisions, ignorance of statutes, erroneous decision, and a few more. Nonetheless, the list of factors reducing the binding authority of precedents does not include abrogative nature of those precedents.
However, a conclusion that the abrogative nature of precedent does not reduce its binding authority would be too quick to make. The reason, as clearly stated by V. D Mahajan, is that a precedent cannot be abrogative in nature at all, and that it has to be purely constitutive. Does that mean that judgments that strike down laws or nullify them cannot be precedents at all? Theoretically, the answer should be yes, but practically it is not.
There are several judgments pronounced in the history of Indian courts where the courts have struck down laws, and the same judgments have been cited in future cases where they have been followed as precedents. Since the list is too long, only a few shall be discussed below:
Mithu v. State of Punjab, (1983) 2 SCC 277, was a case in which the Supreme Court held S. 303 of the Indian Penal Code, 1860, ultra vires and struck it down. The section said that if a life-convict committed murder, he should be punished with death. The Supreme Court followed the judgment in Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, and Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737. It was also cited and followed in the landmark case of Shayara Bano v. Union of India, (2017) 9 SCC 1, in which the judiciary struck down S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 (Rahman, 2017), to the extent that it recognized and enforced instant triple talaq. Thus, an abrogative precedent was followed to create another abrogative precedent.
The Shayara Bano Case, (2017) 9 SCC 1, itself was relied on as a precedent in other judgments in which again abrogative precedents were created. These judgments include Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, in which the Supreme Court partly struck down S. 377 of the Indian Penal Code which criminalized consensual sexual intercourse between people of same sex, and Joseph Shine v. Union of India, (2019) 3 SCC 39, in which S.497 of the Indian Penal Code, was struck down by the Supreme Court, thus decriminalizing adultery.
Another such example is Shreya Singhal v. Union of India, (2015) 5 SCC 1, in which the court called S.66A of the Information Technology Act, 2000 which dealt with an information-related crime as "draconian" and struck it down. It was explained and followed in Devika Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1, and was also applied in Rini Johar v. State of M.P., (2016) 11 SCC 703.
In all the above cases, the judgments were abrogative and were still cited as precedents. Furthermore, they were also relied upon, and new judgments were given based on them.
There are plenty of judgments to show that abrogative precedents are regularly cited in the courts of India. They are even binding in some instances. For instance, recently, a petition was filed by PUCL which claimed that S.66A of the Information and Technology Act, 2000, is still being used to book people, although it was struck down in the Shreya Singhal Case, (2015) 5 SCC 1. The bench which heard the petition said that it was shocked to hear that the provision is still in use and strict action would be taken if the claim was valid (The Hindu, 2019). This shows the binding nature of abrogative precedent.
Has the nature of precedents changed overtime?
There was a time when the King was considered sovereign it was clear that no one could abrogate or deny what the King purports. Laws made by the authorities were absolute, and the judiciary was supposed to follow them. It was unconditionally clear that in no case judiciary has the power to abrogate laws. "Where there is a settled rule of law, it is the duty of the judges to follow them". Thus, the answer to the question- “whether judges can abrogate an existing law, and if they did, would it qualify to be a binding precedent?”- remained undisputedly negative. Therefore, the nature of precedent remained undoubtedly constitutive, and in no case was it considered to be abrogative.
However, Jurists were divided upon whether judges can make laws (Bacon, Dicey, Gray, etc.) or judges cannot make law (Coke, Blackstone, Esher, etc.) (Mahajan, 2020). Though, in cases of legislative vacuum judges made laws, but where a law had already been made on the particular issue, the case remained that no judge could deny it.
The framers of the constitution (especially of the USA and India) were very much inspired by Montesquieu and William Blackstone, and the theory of checks and balances and saw it as a measure to protect the liberty of the people. Thus, with the evolution of constitutional framework over time, the view that judges can't alter a law is loosening its hold as today judges have the power not only to declare a law arbitrary or unreasonable but also to strike down or make it unconstitutional. To restrain the abuse of rights of people by the legislature, judges are free to strike down any law. This mechanism is the force behind the theory of checks and balances. Different branches of government, i.e., legislature, executive, and judiciary, hold a responsibility to restrain each other from holding an extreme stand.
One argument would be that Judges abrogate or strike down a law by exercising power bestowed upon them by the law of the land itself, i.e., the Constitution. So, it would be contended that judges do not impose or follow their private opinions while abrogating a law; instead, they do it because of the provision of the constitution. Thus, it would be justified that to protect the supreme law of the land (constitution), other laws (made by the legislature) can be abrogated. However, this is not the case because we have seen how the judiciary is abrogating laws that were within the ambit of the constitution. In Supreme Court Advocates on Record Association v. Union of India (2016) 5 SCC 1, the Supreme Court declared Article 124A to be unconstitutional and struck down the Constitution (99th Amendment) Act, 2014. NJAC was made to replace the existing collegium system. It was ratified by 16 state legislatures and assented by the president. The NJAC Act and the Constitutional Amendment Act came into force on April 13, 2015. However, later on, it was challenged in the highest court of the country and declared unconstitutional.
This proves that the judiciary even abrogates articles of the constitution. It is true, however, that the judiciary cannot and does not do it merely for substituting their opinions in place of the established law. Instead, a law can be struck down or abrogated only when it is inconsistent with the constitution's basic structure.
Therefore the precedent should be called abrogative, and it would also be binding. One cannot say that there is no such thing as an abrogative precedent, especially when judicial review is itself a basic structure of the constitution.
Suggestions and Conclusion: A way forward-
The nature, definition, and scope of the precedent should be updated from time to time as a society and the governments' organs keep evolving. For a long time, the nature of precedent has been defined as constitutive and not abrogative. The present works on jurisprudence do not accept that abrogative precedents could be binding. In this article, we have argued that it would be very unreasonable to claim that precedent cannot be abrogative. In today's constitutional framework, the judiciary is both active and independent. Furthermore, it has many constitutional responsibilities that should be discharged while at the same time sticking to the constitutional values is also essential. In many instances, the judiciary has cleared its stand against the unconstitutional laws discussed briefly in this article.
Thus, sometimes judicial actions, in order to protect the basic structure of the constitution, declare a law as invalid. In jurisprudential aspects, those judgments are abrogative and do not have any enforceable character. However, in practice, this theory does not exist, and it has been observed that abrogative precedents play an influential role in the decisions of many cases.
However, it cannot be argued that the judges must not set abrogative precedents at all, because judicial review is a tool of the judiciary. Its very essence is declaring those laws as null and void, which are ultra vires to the constitution. The judiciary's action cannot be asked to be changed due to the lack of some theoretical updates. Instead, the theory of law should be updated according to the practice of the courts. Therefore, the nature of precedent should be updated to both abrogative and constitutive.
Aneesa and Ishan are students at the Faculty of Law, Jamia Millia Islamia, New Delhi
Katju M., (2012). The Philosophy of Judicial Restraint. JusticeKatju.BlogSpot.Com. Retrieved 31 December 2021, from http://justicekatju.blogspot.com/2012/07/philosophy-of-judicial-restraint.html.
Mahajan, V.D., (2020). Jurisprudence and Legal Theory. Delhi. EBC. 5th ed.
Pandey, J.N., (2019). Constitutional Law of India. Allahabad. Central Law Agency, 56th ed.
Rahman, A.F., (2017). To Clear the Path Ahead. The Hindu. (2017). Retrieved 31 December 2021, from https://www.thehindu.com/opinion/lead/to-clear-the-path-ahead/article19604604.ece.
‘Shocked’ that Section 66A is still being used, SC seeks Centre’s response. The Hindu. (2019). Retrieved 31 December 2021, from https://www.thehindu.com/news/national/shocked-that-section-66a-is-still-being-used-sc-seeks-centres-response/article25931913.ece.