Column | The stare decisis flip-flop: Flexibility vs judicial chaos

India has the world’s largest electorate, making it the world’s largest democracy. The Department of Justice reported that, as of March 2026, there were almost 25,843 sanctioned posts in the subordinate courts, 1,122 across 25 High Courts, and recently the sanctioned strength of the Supreme Court was expanded to 38 judges. This also makes India’s judiciary one of the world’s most extensive and complex legal systems.

Working with these scales, the Supreme Court’s constitutional duty under Article 141 to adhere to the doctrine of stare decisis, captured in the Latin legal maxim Stare decisis et non quieta movere, i.e., stand by things decided and not disturb settled matters, is heavy. Yet we find the Supreme Court is muddying still waters by flip-flopping on its rulings, a trend that is increasingly becoming more noticeable.

Certainty of law is foundational to the Rule of Law. Political thinkers going as far back as Aristotle, Locke and Montesquieu have emphasised this. Lon L. Fuller, the American natural law theorist, discusses eight principles in his book “The Morality of Law” (1964) that are crucial to maintaining the “inner morality of law”. Significantly, the seventh principle prescribes consistency and stability of laws.

Recently, former Supreme Court Justice, Mr Rohinton F Nariman, a scholar in his own right, lamented in the keynote address at the Gujarat High Court’s Arbitration Week that the recent arbitration judgements have created grave uncertainty by reopening settled questions, and he cited five Constitution bench judgements to make good his point.

The heat of overturning an earlier well-settled interpretation is being severely felt in the Right to Fair Compensation Act cases.  In September 2013, the then government notified the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, replacing the old land acquisition law that had been in force since British times.

The new enactment envisaged alleviating and transforming the social impact of land acquisitions. In the first phase, from the Pune Municipal Corporation (2014) onwards, benches of the Supreme Court gave beneficial interpretation, giving effect to the letter and spirit of the legislation. Previous acquisitions which were never fully completed due to inaction of the State were weeded out.

Story continues below this ad

In May 2014, however, the Supreme Court also swayed in the direction of maximising State acquisitions. The stringent procedural safeguards to protect landowners were watered down substantially by the court in the Constitution Bench judgment of Indore Development Authority (2020). It is a popular perception that the previously correct view was overshadowed by the later presiding judge advancing his personal philosophy of protecting deficiencies of the State. This fire is still burning, and only a re-examination of the ruling in Indore Development Authority can cool it down. The ball is now in the court of a larger bench to undo the havoc played by Indore Development Authority.

Dissenting views enrich decision-making

The question that looms large thus is whether the Supreme Court must be fully restricted by previous opinions, or whether there is real value in being polyvocal. Experience has shown that dissenting judgments enrich decision-making. Justice H.R. Khanna’s dissent in ADM Jabalpur (1976), which was the darkest hour in the Supreme Court’s history, is still the starkest example. Forty decades later, nine judges in K.S. Puttaswamy (2017) expressly repudiated ADM Jabalpur, thereby remedying a grave and long-standing doctrinal wrong.

In its nascent years, seven judges of the Supreme Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar (1955), wrestled with the tension between respecting precedent and correcting constitutional errors by drawing heavily from a wealth of foreign judgments. The justices quoted Frankfurter J of the US Supreme Court from Graves v New York (1924) that “(j)udicial exegesis is unavoidable with reference to an organic act like our Constitution…. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”

While the Court needs elasticity to ensure that a previous mistake is not perpetuated infinitely, it is justifiable only based on an in-built internal discipline. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2004), a Constitution Bench set out the inviolable rule that if a smaller or coordinate bench genuinely doubted a decision, the proper course would be to refer it to a larger Bench.

Story continues below this ad

I asked ChatGPT

Out of curiosity, I asked ChatGPT the decade-wise frequency with which settled law in major cases was overturned. The data showed an increasing trend, starting with a single case in 1950-60, 8 cases in the 2010s, and in the present decade (with four years still to go) it threw up a count of 7 overturns. I am not accepting this as accurately verifiable data, but it certainly is indicative of the increasing trend of rapid flip-flop.

With this factual data, I decided to delve deeper and analyse whether the Supreme Court had actually thrown the doctrine of stare decisis to the winds and had assumed a whimsical approach guided by personal philosophies of the judges without following an inbuilt discipline.

Currently, the court is vexed with a profoundly serious issue of personal liberty. Justices are conflicted about granting bail to undertrials who are accused of grave and serious offences, especially under UAPA, NDPS, and other national security laws, despite the basic constitutional guarantee that an undertrial should not be incarcerated for long periods, especially when the trials move at a snail’s pace.

In the 2020 anti-CAA riots bail cases, a two-judge bench in the case of Gulfisha Fatima v. State, Government of NCT of Delhi (January 2026) circumvented a previous ruling of a larger three-judge bench in the case of KA Najeeb (2021), holding that long incarceration of an undertrial was not the primary ground to grant bail, but the gravity of the offence would take primacy.

Story continues below this ad

Close on its heels, a different two-judge Bench voiced serious reservations about the Gulfisha Fatima decision in the case of Syed Iftikhar Andrabi v. National Investigation Agency (May 2026), stressing that K.A. Najeeb, being a three-judge decision, was binding on two judges, and that a quiet departure was unacceptable. Fortunately, in view of the serious conflict, the very judge who passed the judgment in Gulfisha Fatima has now referred it to a larger bench.

The Constituent Assembly was also aware that our Constitution was a living document. The Founding Fathers were thus certain that the Supreme Court must clearly be able to declare law for all courts of the country but must also have the flexibility to correct its own mistakes.

During the Constituent Assembly debates in May 1949, Dr B R Ambedkar agreed with Mr HV Kamath’s nuance of the words “all courts” in Article 141 to mean “all other courts”, i.e., the courts subordinate to it. He reiterated that it was never intended that the Supreme Court be bound by its own decisions “like the House of Lords”, and that it would stay free to change its mind.

This is precisely why the doctrine of stare decisis does not demand that a judicial wrong stay wrong, but it does demand that when the answer is wrong or changes, it changes through a process that leaves the country in no doubt about what now governs. The constitutional duty of the Supreme Court is to balance the freedom to rethink the law with the discipline to speak with one authoritative voice.

Story continues below this ad

That is what lets the Court hold disagreement and continuity together, without one swallowing the other.

Vibha Datta Makhija is a Senior Advocate, Supreme Court of India

Written by eminent law professionals, the Legal Minds Column aims to break down complex statutory frameworks into insights, both for members of the fraternity and the general public.

For feedback and pitches, write to us at expresslegal@indianexpress.com