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| Can SC judgment be a precedent even if it itself says it is not? |
| Sukumar Mukhopadhyay / Sep 13, 2010, 00:33 IST |
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A very recent judgment of the Calcutta High Court has stirred up a very interesting issue namely whether a Supreme Court judgment can be treated as a precedent when the Supreme Court itself said that it was given only on the basis of the special facts of the case and should not be treated as a precedent. The question that arises is whether it can be treated as a precedent if the facts are just similar.
This is what happened in the case of CC, Calcutta vs B Arun Kumar & Co. — 2010(256)ELT 34(Cal.). In this case the Tribunal referred to the decision of the Supreme Court in a particular case and found that the facts of the case are similar in the case before the Tribunal. The Tribunal, therefore, took the decision of the Supreme Court in that case as a precedent and decided accordingly. This is in spite of the fact that the Supreme Court has made it clear in the judgment itself that it would not be a binding precedent. When the Department appealed, the Calcutta High Court held that the Tribunal judgment is legally flawed because it ignores the Supreme Court's wishes.
There is, however, a contrary judgment of the Bombay High Court in the case of D. Navinchandra & Co vs UOI-1989(43)ELT266(Bom). There were two parties with similar facts of the case who were punished by the Customs. One went to the Supreme Court and got relief. The order of the Supreme Court was thus:
“We would like to emphasise that since we have decided the matter in view of the special facts and circumsta-nces available in these cases, this order will not be treated as a precedent.”
The other party went to the Bombay High Court which ordered that the aforesaid observation of the Supreme Court (that its order is not a precedent) cannot come in the way of granting the relief prayed for as the facts and circumstances governing the case of the petitioner are identical to the facts which were before the Supreme Court. Here the High Court has, in fact, held the Supreme Court’s order as a precedent even if the Supreme Court says it is not.
When judgments of High Court differ, it is quite difficult to find out what the correct precedent is. There is a principle that majority judgments can be chosen over the minority judgments but when there are only two judgments on either side, they will be binding only in their respective jurisdictions. However this creates a fiscal disparity in different States. The need for uniformity in fiscal matters has been emphasised by the Gujarat High Court in the case of J.D. Patel vs. UOI-1978(2)ELT(J540)(Guj.). The Court held that it is not possible for an all-India Tribunal to separately follow all different High Court judgments. It can follow only the one where the facts are more similar. There are other High Court judgments also which support the view of the Gujarat High Court.
We may independently judge here whether a Supreme Court judgment on the facts of a particular case can be a precedent in another case if the facts are similar. In several judgments the Supreme Court had held that a decision of the Supreme Court must be understood in the factual matrix involved therein. The most recent one is in the case of Commissioner of Cus.(Port), Chennai vs. Toyota Kirloskar Motor P. Ltd. - 2007(213)ELT4(SC).
So the conclusion is the following: The Supreme Court itself has held several times that the precedent value is based on the 'factual matrix' of a case. So it logically follows that if the facts are same then the same precedent should apply. The Supreme Court's observation that its own judgment should not be taken as a precedent is not quite consistent with its other judgments to the effect that precedent is on the basis of what it decides on facts. Therefore, the Bombay High Court Judgment in Navinchandra's case reflects the view which any ordinary citizen would take. And I, for one, am one of those.
Email: smukher2000@yahoo.com
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