“I agree with you but I am bound by the actions of my predecessor”. This is a phrase that most of my colleagues would have heard in their careers from various authorities. With any forum be it judicial or administrative the weight of a precedent is enormous. The importance of precedent as a part of judicial discipline is well understood. The question is whether a precedent is a support or a millstone around your neck. Must the weight of a precedent force you to drown and then be rescued by a lifeline, or can one attempt to get rid of it and swim ashore? The doctrine of precedent is often misapplied either deliberately or through ignorance. One understands that in certain areas one must follow the decisions of a concurrent jurisdiction, for not to do so will result in anarchy. However, this principle cannot be used as a fortress to withstand the attack on the correctness of the decision of a predecessor.
Like precedents, we all swear by the principle of consistency. Undoubtedly, one must be consistent but such consistency must not be of mistake or inaction. The reason why precedent and consistency are treated as sacrosanct is that we tend to judge and evaluate the action of any person not on the touchstone of whether he acted diligently, correctly or reasonably, but whether he followed the past. Any departure from the past is looked upon with suspicion, with regard to the integrity of the person who takes a different decision. This results in an attempt by senior officers to fix responsibility on a junior official or pass the buck upward.
If an officer comes to a conclusion that his predecessor has made an error, he must not only be entitled to do what is required to rectify that error, but also be duty bound to not compound the mistake by repeating it. Such a departure should be evaluated based on the merit of the decision and it should not affect the careers of both these officers if they have acted bonafide. A system has to be evolved, whereby this can be achieved. Not only should one officer be required to rectify past erroneous action, the same officer should also be required to make a different decision from the one he made in the past, if he truly believes that it was erroneous and he must not be hounded for this if it satisfies the acid test of bonafide action.
Another aspect which needs reconsideration is the law of limitation qua certain events, actions obligations and claims. A striking example of this is that, for a citizen the period of limitation to claim a debt is three years while the State can raise a claim for taxes pertaining to a period from which 30 years have elapsed. Must we therefore accept that the government can function with only one tenth of the efficiency of a citizen? I am conscious that what I said sounds simplistic but the attempt is only to illustrate the stark contrast. If the State makes a claim which is three decades old, it must establish beyond doubt that the claim is valid and subsisting, and not shift this onus on the hapless citizen. Like the law of limitation for making a claim there must be a timeframe within which action, whether civil or criminal, ought be initiated. Further, there must be a limitation of time from an event, within which investigation must commence. No purpose will be achieved by investigating an event of 1984 and 1992 and utilise precious national resources in that activity. So much water has flown under the bridge that many of the perpetrators of the alleged crime as well as the victims have receded into oblivion. Investigation into events older beyond a certain period should not be started, for it is unlikely to unearth anything worthwhile. If an investigation for an event beyond the decided period of limitation has not reached a particular stage, it should be abandoned. Many would be critical of this suggestion as it will mean that certain criminals and fraudsters will go scot-free and unpunished. But for a nation with scarce resources, I believe, that the priority should be preventing crime rather than attempting to bring to book someone for an event which has faded from national memory.
We are a nation with a glorious past, living in a turbulent present. If we are to have a great future, for which we have the requisite potential, the principles, precedent consistency and limitation to which I made a reference, need a serious rethink.
