Case Laws, approach as to citing

1. Case laws are very important tools to strengthen and establish our case in the court of law.

2. The judges whilst confronting with the factual backdrop of a case, if so necessitated, whilst applying the principles of interpretation of law, interpret and gather the letter and spirit of the concerned applicable laws, and then having been ascertained, (a) the factual position of the case and (b) the position of law. decide the issue / case before it, one way or the other. Perhaps, this is how precedents of law take birth.

3. Every provision of law guides / mandates / directs the courts of law to adopt certain or set of course of actions which must or preferably be taken in a specific situation.

4. The observations of Apex Court in a case before it are very useful in this respect. Sudevanand versus State through CBI [(2012) 3 SCC 387]

Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.

28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.

28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.

5. In my limited exposures to court of law, I have observed that judgments cited before the Court are summarily rejected, with a standard rejection argument, “the facts are different in the present case, and therefore the judgment cited doesn’t help the party advancing it. However, this doesn’t happen all the time.

6. The earlier decided judgments of High Courts and Apex Court are so critical in our daily fight to justice, I have decided to find out the simplest manner in which the judgments may be cited and explained before the court.

7. The purpose of relying upon a case law (judgment), is to tell the Judge, look, there is a judgment of High Court / Apex Court, which had dealt with the provision of law / proposition of law, to which we are concerned in the instant case also;. The said High Court / Apex Court had interpreted the law / proposition of law, and have held that ……

8. Therefore, in any judgment relied upon, it is imperative for us to find out the discussion and explanation of law / proposition of law set out therein in the judgment, and this needs to be pointed out to the court, as, the law or the proposition of law being laid down in the said judgment.

9. With further argument that the case at hand also confronts a situation having clear applicability of the aforesaid law or the proposition of law;

10. And if so required, it may further be explained to the court the factual backdrop in which the High Court / Apex Court had laid down the law / proposition of law.

11. It is well settled that it is not everything said by a judge while giving judgment, constitutes a precedent. The enunciation of the reason or principle on which a question before the court has been decided, is alone binding as a precedent. Every judgment to qualify to be a precedent should invariably answer an issue of law; and a decision is available as a precedent only if it decides a question of law.

Thank you.

Sandeep Jalan

Advocate

Mumbai