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Article 141 of the Indian Constitution

&
Role of Precedent

Project submitted to
Dr. Azim Pathan

Project submitted by
Ayushi Dwivedi
(Roll no.-47)
(Section-A, sem-I)
Submitted on- 26-10-2013




HIDAYATULLAH NATIONAL LAW UNIVERSITY
RAIPUR, C.G.
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Declaration

I hereby declare that the project work entitled ARTICLE 141 OF THE INDIAN
CONSTITUTION AND ROLE OF PRECEDENT submitted in HNLU, Raipur, is record of an
original work done by me under the able guidance of the faculty of legal method, HNLU, Raipur.








AYUSHI DWIVEDI
ROLL NO: 47
BA.LL.B. 1
ST
SEM; BATCH: XIII
DATE: - 26/10/2013
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ACKNOWLEDGEMENTS

The successful completion of any task would be, but incomplete, without the mention of people
who made it possible and whose constant guidance and encouragement crowned my effort with
success.
I would like to thank my course teacher Dr. Azim Pathan Sir for providing me the topic of my
interest.
Secondly, I would like to thank our Vice Chancellor for providing the best possible facilities of
I.T. and library in the university.
I would also like to extend my warm and sincere thanks to all my colleagues, who contributed in
innumerable ways in the accomplishment of this project.



Ayushi Dwivedi
Semester I







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Table of Contents

1. Declaration__________________________________________2
2. Acknowledgements___________________________________3
3. List of Abbreviations__________________________________5
4. Table of Cases_______________________________________6
5. Objectives of Study___________________________________7
6. Research Methodology________________________________7
7. Introduction_________________________________________9
8. Article 141 of Indian Constitution_______________________10-17
9. Precedent and other sources of law______________________18-20
10. Nature and Scope of Precedent_________________________21-24
11. History of Precedent__________________________________25
12. Doctrine of Precedent in India___________________________26-27
13. Role of Precedent_____________________________________28-30
14. References___________________________________________31







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List of Abbreviation

1. & - And.
2. e.g. - For Example.
3. etc. - Etcetera.
4. i.e. - That is.
5. Edn. - Edition.
6. SC - Supreme Court.
7. AIR - All India Reporter

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Table of Cases

A-One Granites Vs. State of U.P________________________________14
Bachan Singh v State of Punjab_________________________________8
Bengal Iron Corporation v Commercial Tax Officer_________________13
Dalbir Singh Vs. State of Punjab________________________________13
Dasharatha Rama Rao v State of Andhra Pradesh__________________10
Gerard Vs. Worth of Paris Ltd_________________________________14
Govinda Naik Vs. West Patent Press_____________________________17
Pandurang Kalu v State of Maharashtra__________________________13
Premnath Sharma Vs. State of U.P______________________________14
Rudrayya Vs. Gangawwa_____________________________________16
Sajjan Singh v State of Rajasthan_______________________________17
Scruttons Ltd. V.Midland Silicones Ltd__________________________15
State of U.P. Vs. Synthesis & Chemicals Ltd______________________14


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Objectives

To have an idea about Article 141 of the Indian Constitution and define its ambit.
To study the concept of Precedent as a source of law.
To understand the historical significance of Precedent.
To explain the role of precedent in providing justice.


Research Methodology

This research paper is descriptive and doctrinal in approach. It is largely based on
secondary and electronic sources. Other reference as guided by faculty of LEGAL METHOD is
primarily helpful for the completion of this project.


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Chapter-I
Introduction
It is very difficult, if not impossible, to give a precise definition of Law. Often quoted,
although not widely believed, definition of Law is of that given by Austin according to which
Law is the command of the Sovereign.
And law comes from its different sources like legal, historical, formal and non formal
sources, legislation, custom, precedents, etc. As a matter of degree, the Courts tend to attach
greater weight to their own previous decisions than to the views of text writers. A judicial
precedent speaks with authority. It is an evidence of law and source of it. The authority of
precedents is great because of power, skill and professional reputation of judges who make them.
Judicial precedent means the process whereby judges follow previously decided cases where the
facts are of sufficient similarity. Sources of law may be classified into Legal and Historical
sources. Legal sources are those which are recognized as such by law itself. Historical sources
are those sources lacking formal recognition by law. The legal sources of law are authoritative
and are allowed by the law courts as of right. The historical sources of law are unauthoritative.
They influence more or less extensively the course of legal development, but they speak with no
authority. All rules of law have historical sources but not all of them have legal sources.
Here, in this project I will specifically deal with Article 141 of the Indian Constitution and role
of precedent as a source of law. It is today the prevailing opinion that a decision of a court of
law, particularly a court of high authority, which explicitly or implicitly lays down a legal
proposition constitutes a general and formal source of law. It is the reason or legal principle of
the case, which is known as the ratio decidendi applied by the Doctrine of stare decisis, which
forms the law for the future. A decision is not binding because of its conclusion, but in regard to
its ratio and the principles laid down therein which is declared in the case Bachan Singh v State
of Punjab
1
.


1
AIR(1980) 2 SCJ 475
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CHAPTER II
ARICLE 141 OF THE INDIAN CONSTITUTION
Law declared by Supreme Court to be binding on all courts. The law declared by the Supreme
Court shall be binding on all courts within the territory of India.
1. Conceptual aspects :
At the outset, important conceptual aspects may be critically re-viewed.
1.1 Supreme Court makes law :
In terms of Article 141 of the Constitution, the Supreme Court is enjoined to declare law. The
term declared is wider than the term found or made. To declare means to announce opinion.
Indeed, the term made involves a process, while the term declared expresses result. The law
declared by the Supreme Court is the law of the land. It is a precedent for itself and for all the
Courts/Tribunals and authorities in India. To deny this power to the Supreme Court on the
footing that it only finds law but does not make it, is to make ineffective the powerful
instrument of justice placed in the hands of the highest judiciary.
While the position of the Supreme Court is subordinate to the Legislature, it must be recognised
that in the Supreme Courts efforts to achieve its purpose of declaring the law, creativity is
involved. A statute is binding; but it is the statute, as interpreted by the Supreme Court that is
binding on all the other Courts. The Supreme Court is not a mere interpreter of the existing law.
As a wing of the State, it is a source of the law.
1.2 Purposive interpretation preferred to literal interpretation :
In the aforesaid background, rising above the doctrine of literal interpretation, judicial activism
has been pleaded in the matter of interpretation of statutes. Having consistently followed such
approach, the doctrines of purposive and progressive interpretation have come to prevail in the
matter of statutory as well as constitutional interpretation. This, however, is subject to the
limitation that the Court cannot rewrite the law in the guise of interpretation.
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1.2.1 While interpreting law, the Supreme Court may alter it :
Article 141 empowers the Supreme Court to declare the law and not enact it. Hence,
observations of the Supreme Court should not be read as statutory enactments. At the same time,
this Article recognises the role of the Supreme Court to alter the law in the course of its function
to interpret a legislation so as to bring the law in harmony with social changes.
1.3 Constitutionality :
1.3.1 Where a High Court allows several writ petitions declaring a Statute as unconstitutional :
In such a case, if the State appeals to the Supreme Court only in one of the petitions and in that
appeal, the Supreme Court upholds the validity of the Act (setting aside the judgement of the
High Court), the law declared by the Supreme Court would, in terms of Article 141, be binding
on all the petitioners before the High Court and not merely the particular petitioner against whom
the State had preferred appeal.
1.3.2 Where a State Government is a party duly represented before the Supreme Court :
In such a case, the decision of the Court declaring a State Act as ultra vires shall be binding on
that State Government, even where no notice, as required by the Code of Civil Procedure, was
served upon the Advocate-General.
1.4 Retrospectivity :
Where the Supreme Court has expressly made its ratio prospective, the High Court cannot give it
retrospective effect. By implication, all contrary actions taken prior to such declaration stand
validated.
The doctrine of prospective over-ruling is applicable to matters arising under the Constitution as
well as the statute. Applicability of the doctrine is left to the discretion of the court to be
moulded in accordance with justice of the cause and matter before it. If the Supreme Court does
not exercise its discretion to hold that the law declared by it would operate only pros-pectively,
the High Court cannot of its own hold so. When the Supreme Court interprets an existing law
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overruling the interpretation given to it earlier and does not lay down any new law, declaration of
law by it relates back to the law itself.
2. What is binding under Article 141 ? :
What is binding is the ratio of the decision and not any finding on facts, or the opinion of the
Court on any question which was not required to be decided in a particular case.
The law that will be binding under Article 141 would extend only to the observations on the
points raised and decided by the Court in a case. Therefore, as a matter of practice, the Court
does not make any pronouncement, particularly in Constitutional matters, on the points not
directly raised for its decision.
General principle of law laid down by the Supreme Court is applicable to every person including
those who are not a party to that order.
In other words, it is the principle underlying a decision that is binding. While applying the
decision in a later case, therefore, the later Court should try to ascertain the true principle laid
down by the previous decision, in the context of the questions involved in that case from which
the decision takes its colour.
2.1 Decisions of the House of Lords and Privy Council :
All Courts in India are bound to follow the decisions of the Supreme Court even though the same
are contrary to the decisions of the House of Lords or of the Privy Council.
2.2 To ascertain its binding nature J udgement to be read as a whole :
A judgement must be read as a whole and the observations from the judgement have to be
considered in the light of the question before the Court. It is the principle found upon reading the
judgement as a whole in the light of the questions before the Court that is relevant and not
particular words or sentences.
2.3 Precedent value of thedecision only on question of law :
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A decision is available as a precedent only if it decides a question of law.
2.4 Majority view binding Not minority view :
When the Court is divided, it is the judgement of the majority which constitutes the law
declared by the Supreme Court and not the view or observations of the judges in minority.
It is immaterial that the conclusion of the majority was arrived at by several judges on different
grounds or different processes of reasoning.
2.5 Ex-parte decision, too, binding :
To determine whether a decision is declared law, it is im-material whether the Supreme Court
gave the decision ex-parte or after a hearing.
2.6 Procedural irregularity I mmaterial :
The binding force of a judgement as a precedent is not affected by any procedural irregularity in
hearing the case.
2.7 Special leave petition :
In a Special Leave Petition, there is a law declared if the Court gives reasons for dismissing the
Petition. However, there is no law declared where the Court gives no reasons for dismissal.
3. What is not binding ?
3.1 Certain decisions Not binding :
The following kinds of decisions cannot be deemed to be a law declared to have a binding effect
as is contemplated by Article 141 :
The decision that is not express
The decision not founded on reasons
The decision that does not proceed on consideration of the issue.
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The later Court would not be bound by those reasons or propositions which were not necessary
for deciding the previous case. Conversely, the later Court cannot unnecessarily expand the
scope and authority of the precedent. In other words, a judgement cannot be construed as an Act
of Parliament. It must be read in the context of the questions that arose for consideration in the
case and not as embracing all aspects of every question relating to the subject or laying down
principles of universal application. In the absence of parity of situation or circum-stances, the
reasoning of one decision cannot be applied in another case.
3.2 Obiter dicta Not binding :
Only ratio decidendi is binding; obiter dicta, that is, the general observations have no binding
force. Since an obiter is not binding as the law declared under Article 141, it cannot be relied
upon solely to hold certain statutory rules as invalid.
An obiter dictum is an observation made by a Court on a legal question suggested by a case
before it, but not arising in such manner as to require the Courts decision. It is not binding as a
precedent, because the observation was unnecessary for the decision given by the Court.
An obiter of the Supreme Court though not binding as precedent, is worthy of respect and
consider-able weight.
While the decision of the Supreme Court cannot be assailed on the ground that certain aspects
were not considered or the relevant provisions were not brought to the notice of the Court, the
position is different as regards obiter.
3.3 Decisions per incuriam and sub-silentio Not binding :
These two doctrines constitute exceptions to the rule of pre-cedents. The expression per
incuriam means resulting from ignorance of. If a decision is rendered per incuriama statute or
binding authority, the same may be ignored.
Another exception to the rule of precedents is the rule of sub-silentio. A decision is sub-
silentio when the point of law involved in the decision is not perceived by the Court or not
present to its mind. A decision not expressed, not accompanied by reasons and not proceeding on
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a conscious consideration of an issue cannot be deemed to be a law declared to have a binding
effect as is contemplated by Article 141. That which has escaped in the judgement is not
the ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point
of law was not consciously deter-mined.
3.4 Later decision Not binding if the earlier decision is by a larger bench :
If the later decision is that of a larger Bench, the previous decision will be deemed to have been
overruled1. Thus, the judgement of a 3-Judge Bench is binding on a Bench of 2 Judges.
However, where there is a conflict between two decisions of the Supreme Court, it is the later
decision that will be bind-ing on the lower Courts, unless the earlier decision was by a larger
Bench.
3.5 Supreme Courts observations on facts Not binding :
Statements on matters other than law, e.g., facts, have no binding force, for the facts of two
cases are generally not similar. On this principle, decision on a question of sentence cannot be
regarded as law declared. A reference may, however, be made to the under-noted Bombay
High Court decision51 in which it was held that if the facts were the same, the Supreme Court
decision was a binding precedent.
3.6 Decision based on concession Not binding :
No law is laid down when a point is disposed of on concession. If the Court proceeds on the
basis of concession made by a party, the decision cannot, by any stretch of imagination, be
termed a binding precedent and cannot have the sanctity and solemnity of a binding precedent.
4. High Court and lower Courts Bound by Supreme Court decisions :
4.1 Lower Courts duty-bound to follow :
When some principle has been laid down by the Supreme Court or some practice is deprecated, it
is the duty of the High Court or lower Court to follow the decision of the Supreme Court, even
though it may not have the approval of the Judge of the High Court or lower Court where the
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Supreme Court decision is cited. The Central Admini-strative Tribunal, too, is bound to follow
the Supreme Court decisions.
4.2 Not to follow is contempt :
A judgement of the High Court that refuses to follow the directions of the Supreme Court or
seeks to revive a decision of the High Court which was set aside by the Supreme Court, is a
nullity. The Supreme Court may treat it as contempt even where its order was couched in the
language of a request.
4.3 Remand by the Supreme Court :
Where, however, in a subsequent petition under Article 32, the Supreme Court directs the
petitioner to go before the High Court and directs the High Court to reconsider the matter, the
High Court would not be fettered by its own previous judgement.
4.4 Lower Courts Not to seek clarification :
If a direction of the Supreme Court is clear, a party cannot approach the Court for clarification
for assisting the High Court, since the same would tantamount to nullifying the Supreme Court
order or notification.
4.5 Non-consideration of a particular argument No ground to assail the decision :
The binding force of a Supreme Court decision cannot be as-sailed on the ground that it did not
consider a particular argument provided the point to which the argument relates was actually
decided therein.
5. Supreme Court How far bound by its own decisions ?
The words all courts in Article 141 do not include the Supreme Court. In overruling its earlier
decision, the Supreme Court should remember that while the decisions of other Courts are
binding only upon the litigants, a decision of the Supreme Court is something more : it is
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declaratory for the nation. Accordingly, the Supreme Court is free to depart from its earlier
decision in certain cases.

















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Chapter-III
Precedent And other Sources Of Law
In the ordinary sense Source of law means the origin, beginning or the spring rise
to the stream of the rule of law. Generally, the Sources of Law can be understood only after
going through the writings and theories of various theorists and jurists. The laws derive its force,
spirit and validity from the sources of law. Law comes into existence only when it is constructed
on the valid sources. Without valid sources, any set of rules, governing human conduct cannot be
treated as laws. Thus, sources will occupy the most important place in the study of law. Once we
know what the sources of law are; then it is very easy to know what law is
2
. Actually the term
source of law is used in different senses According to Austin . The source of law is the
authority from which the law derives its force or validity. In this sense, the source of law is the
Sovereign or State.
There are many sources of law one of them is precedent but before moving further we should
understand what the term source of law means. It generally means the sources from where the
law has been obtained. Sources of law can be classified as either legal or historical. The former
are those sources which are recognized as such by the law itself. The latter are those sources
lacking formal recognition by the law. The legal sources of law are authoritative, the historical
are unauthoritative. The former are allowed by the law courts as of right; the latter have no such
claim; they influence more or less extensively the course of legal development, but they speak
with no authority. No rule of law demands their recognition.
3
The legal sources are the only
gates through which new principles can find entrance into the law. Historical sources operate
only mediately and indirectly.
4
All rules of law have historical sources. As a matter of fact and
history they have their origin somewhere.
3.1 Legislation
Legislation has become the commonest source of new laws or of law reforms today. It is the
source of law which consists in the declaration of acts legal rules enforceable by a competent

2
Hijam NK. Singh, jurisprudence explained, 1999, p.132
3
P.J. Fitzgerald, Salmond On Jurisprudence, 2008 p. 109-110
4
Id p. 110
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authority. To legislate is to make new laws in any fashion. Legislation includes every expression
of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature
does not confine its action to the making of rules, yet all its functions are included in the term
legislation.
3.2 Custom
Custom is frequently the embodiment of those principles which have commended themselves to
the national conscience as principles of justice and public utility.
5
Custom has an important place
as a source of law. It is the most important non-formal source of law. Custom exists as law in
every country, though it everywhere tends to lose its importance relatively to other kinds of law.
Usage, or rather the spontaneous evolution by the popular mind of rules of existence and general
acceptance of which is proved by their customary observance, is no doubt the oldest form of law
making. It marks the transition between morality and law.
The term law includes custom and usages having the force of law. In Dasharatha
Rama Rao v State of Andhra Pradesh
6
, Das, J., said Even if there was a custom which has been
recognized by law.that custom must yield to a fundamental right. But personal laws, such as
Hindu Law, Mohammedan Law, are not included within the expression which has been
expounded by the courts.
3.3 Precedent
A Precedent is a statement of law found in the decision of a superior court, which decision has to
be followed by that court and courts inferior to it. A decision is cited as a precedent to be
followed in other cases if it is based on some principle of law. Decisions on questions of fact
may not be cited as precedents. The line between law and fact may be difficult to draw. An
issue is one of fact where it turns on the reliability or credibility of direct evidence, or on
inferences from circumstantial evidence.
7


5
Salmond On Jurisprudence, 12
th
edition, by P.J. Fitzgerald, Universal Law Publishing Ltd., Delhi, 2008 p. 190
6
AIR 1961 SC 564
7
S.H. Bailey, Jane Ching, M.J.Gunn, Bailey and Gunn on The Modern English Legal System P. 479, Smith, by, (sweet
& Maxwell) London 2002
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The value of the doctrine of precedent has been much debated. Judges have been criticised on
the grounds that precedents give them the power to transform from law-implementors to law-
makers. However, it has also been argued in favour of Precedents that the practice is necessary to
secure the certainty of the law. At a time of commercial development and constitutional
jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents
keeping in mind future developments.
3.3A Characteristics of Precedent:-
Precedents has its source in judicial decisions.
Precedents are created by the courts themselves.
Precedents are recognition and application of new principles of law by courts in the
administration of justice.
A precedent comes into existence only after the case has arisen and taken for decision of
the court.
The scope of judicial precedent is limited to similar cases only.
Precedent is retrospective in nature.
Precedent carries judicial authority, as if any other law does.


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Chapter-IV
Nature and Scope of Precedent
4.1 Overview
As a matter of degree, the Courts tend to attach greater weight to their own previous
decisions than to the views of text writers. A judicial precedent speaks with authority. It is an
evidence of law and source of it. The authority of precedents is great because of power, skill and
professional reputation of judges who make them. Judicial precedent means the process whereby
judges follow previously decided cases where the facts are of sufficient similarity Precedents
carries judicial authority, as if any other law does. Many decisions have been brought out by the
courts in deciding cases on various subjects matters. These decisions will stand as the precedents
for the courts to decide future litigations.
8

Different jurists have defined precedent in different ways
According to Salmond Precedents are judicial decisions followed in subsequent cases.
According to Gray A precedent covers everything said or done, which furnishes a rule
for subsequent practice.
According to Keeton A judicial precedent is a judicial decision to which authority has
in some measure been attached.
4.2 Kinds of Precedents
Original and Declaratory
1. Original Precedents are those which creates or establish original or new rules of
law.
2. Declaratory Precedents are those which merely reiterates and apply already
existing rule of law.
Authoritative and Persuasive Authoritative precedent - The decisions of the Superior
Courts of Justice in England are authoritative precedents recognized by English Law. In
our country, Article 141 of the Constitution says that the law declared by the Supreme

8
jurisprudence explained by Hijam NK. Singh, capital law house, 1999, p.149, Delhi
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Court shall be binding on all courts within the territory of India. By this, it is made clear
that all courts in India are bound to follow the decisions of the Supreme Court even
though the said decisions are contrary to decisions of the House of Lords or of the Privy
Council. Privy Council decisions are binding on the High Court so long as the Supreme
Court does not overrule them. [PANDURANG KALU Vs. STATE OF
MAHARASHTRA
9
The Supreme Court under Article 141 of the Constitution is enjoined
to declare law. The law declared by the Supreme Court is the law of the land. It has been
held in the case reported in BENGAL IRON CORPORATION Vs. COMMERCIAL
TAX OFFICER
10
that no doubt a statute is binding, but it is the satute as interpreted by
the highest court which is binding on all other courts.
Persuasive precedent a persuasive precedent is one which a judge is under no
obligation to follow, but which they will take into consideration and to which they attach
such weight as it seems to them to deserve. Decisions of court of co-ordinate jurisdiction
are only persuasive.

4.3 Elements of Judgement
Ratio Decidendi - It means reasons for the decision. The Supreme Court has held in
Dalbir Singh Vs. State of Punjab
11
that every decision has three basic ingredients. 1) the
findings of material facts direct and inferential; 2) the principles of law applicable to the
legal problems disclosed by the facts, and 3) the judgment based on the combined effect
of 1 and 2. For the doctrine of precedents, ingredient 2 is the vital element. Only the
Ratio of a decision has binding force. Ratio means the principle found out on reading of
judgment in the light of the question before the Court
Obiter Dicta
The judge may go on to speculate what his decision would or might have been if the facts
of the case might have been different. This is an obiter dictum.

9
AIR (2003) SC 733
10
1994 (1) Supp. SCC 310
11
AIR (1979) SC 1384
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The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not
binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive authority in later cases.

4.4 Exceptions to the authority of Precedents

SUB-SILENTIO A decision passes sub-silentio, in the technical sense when the
particular point of law involved in it was not perceived by the Court or present to its
mind. The Court may consciously decide in favour of one party because of point A,
which it considers and pronounces upon. It may be shown, however, that logically that
the Court should not have decided in favour of the particular party unless its also decided
point B in his favour; but point B was not argued or considered by the Court. In such
circumstances, although point B was logically involved in the facts and although the case
had a specific outcome, the decision is not an authority on point B. Point B is said to pass
sub-silentio.
In Gerard Vs. Worth of Paris Ltd.
12
, It was held that the point raised did not deliberately
passed sub-silentio by counsel in order that the point of substance might be decided. Thus
we see that the rule that precedent sub-silentio is not authoritative has got a long history
behind it. In M/s. A-One Granites Vs. State of U.P.
13
, question arose regarding
applicability of R. 72 in case of re-grant of a mining lease which had not been referred to
nor considered by the Supreme Court in the earlier decision rendered in Premnath
Sharma Vs. State of U.P.
14
Precedent sub-silentio was held to be not binding.
Per-Incuriam
Incuria literally means carelessness. In practice per incuriam appears to mean per
ignoratium. English Courts have developed its principle in relaxation of the rule of stare
decisis. The Supreme Court has held, in the case reported in the State of U.P. Vs.
Synthesis & Chemicals Ltd.
15
, that the quotable in law is avoided and ignored if it is
rendered in ingoratium of a statute or other binding authority. A precedent is not

12
(1936) 2 AII.E.R. 905
13
AIR 2001 SCW 848
14
AIR 1997 SC 2252.
15
(1994) 4 SCC 139
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binding if it was rendered in ignorance of a statute or a rule having the force of statute
i.e., delegated legislation. This rule was laid down for the House of Lords by Lord
Halsbury in London Street Tramways Vs. London County Council (1898 AC 375). A
judgment which has not failed to notice either statutory provision in substance and effect
or binding precedent cannot be said to be per incuriam. [M/s. Fuerst Day Lawson Ltd.
Vs. Jindal Exports Ltd. (2001 AIR SCW 2087)]






















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Chapter-V
History of Precedent
Initially began in England, because medieval judges considered themselves charged
with the duty of ascertaining and declaring and enforcing contemporary customs and usages. By
the 18th century, it became an integral part of the common law system. Lord Mansfield had
consolidated and reaffirmed the doctrine of judicial consistency, and declared Law does not
consist of particular cases, but of general principles. By the 19th century, Lord Tenterden
C.J.said Decisions of our predecessors, the judges of former times, ought to be followed and
adopted unless we can see very clearly that they are erroneous, for otherwise there will be no
certainty in the administration of law. Prof. Holdsworth in the 20th century, A certain element
of conservation is needed, and the reservations with which the English system of case law is
received, enable the judges within fairly wide limits to apply to old precedents, a process of
selection and rejection which brings the law into conformity with modern conditions. This is
often expressed as the golden mean between too much flexibility and too much rigidity.
Hierarchy of authority of precedents in England;
House of Lords it was bound by its own decisions. Its decisions bind all courts below it.
Decision not bound when decision is made in ignorance of statute, or where the principle is
obscure, or where it is out of line with established principles and other authorities. Decided in
Scruttons Ltd. V.Midland Silicones Ltd.
16

Privy Council it was not bound by its own decisions, but great respect is paid.
Court of Civil Appeal It binds all inferior civil courts. It was bound by its own decisions.
High Court - Creates a binding precedent for all lower courts. In case of an earlier
decision of the same. Present High Courts not bound by decisions of old courts of co-
ordinate jurisdiction, although they have persuasive value.

16
(1962) AC 446 (HL)]
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CHAPTER-VI
Doctrine of Precedent in India
In the Indian context the expression sources of law is generally used in two senses. The
first sense, according to Hindu scriptures Duty is the foundation head of all law, while
according to modern jurisprudence, it is the sovereign from where the law emanates. In the
second sense, the expression means where one must resort to get at law. Thus the sources of
hindu law can be said to be the Sruti and Smriti. But here in India Precedent also have a
important place when we talk about sources of law.
Pre-Independence
According to S.212 of the Govt of India Act, 1935 - Law laid down by Federal Court and any
judgment of the Privy Council is binding on all courts of British India Privy Council was
supreme judicial authority AIR 1925 PC 272.
Post-Independence
SC became the supreme judicial authority streamlined system of courts established.
Supreme Court - Binding on all courts in India. Not bound by its own decisions, or decisions
of PC or Federal Court AIR 1991 SC 2176
High Courts - Binding on all courts within its own jurisdiction. Only persuasive value for
courts outside its own jurisdiction.
Lower courts - Bound to follow decisions of higher courts in its own state, in preference to
high courts of other states.
5.1 Conflicting views
It has been held by Karnataka High Court in Rudrayya Vs. Gangawwa
17
that even in cases where
a High Court finds conflict between the views of the larger and smaller Supreme Court Benches,
it may not disregard the views of the larger Bench. The proper course for the High Court would

17
(AIR 1976 Kar. 153)
LEGAL METHOD Page 27

be to try to find out and follow the opinion of the larger Benches in preference to the opinion of
the smaller benches.

A Full Bench of Karnataka High Court in the case reported in Govinda Naik Vs. West Patent
Press
18
has held if there is inconsistency between two Supreme Court decisions one by a Bench
of three Judges and the other of four Judges, the latter has to be followed.
When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it.
Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally
deprived of all authority, and becomes null and void and a new principle is authoritatively
substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision.
However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare
of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the case
Sajjan Singh v State of Rajasthan
19
. Where a precedent is merely not followed, the result is the
two stand side by side conflicting with each other.

Such a situation can be solved only when a
higher authority formally overrules one of the laws and sanctions the other. The Supreme Court
is not bound by its own decisions and may overrule its previous decisions. It may overrule them
either by expressly saying so, or impliedly by not following them in a subsequent case.
Judgments are not scriptural absolutes but relative reasoning.


18
AIR 1980 KAR. 92 (FB)
19
AIR 1965 SC 845
LEGAL METHOD Page 28

CHAPTER - VII
ROLE OF PRECEDENT
The use of precedent has been justified as providing predictability, stability, fairness, and
efficiency in the law. Reliance upon precedent contributes predictability to the law because it
provides notice of what a person's rights and obligations are in particular circumstances. A
person contemplating an action has the ability to know beforehand the legal outcome. It also
means that lawyers can give legal advice to clients based on settled RULES OF LAW.
The use of precedent also stabilizes the law. Society can expect the law, which organizes social
relationships in terms of rights and obligations, to remain relatively stable and coherent through
the use of precedent. The need is great in society to rely on legal rules, even if persons disagree
with particular ones. Justice LOUIS D. BRANDEIS emphasized the importance of this when he
wrote, "Stare decisis is usually the wise policy, because in most matters it is more important that
the applicable rule of law be settled than that it be settled right" (Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]).
Reliance upon precedent also promotes the expectation that the law is just. The idea that like
cases should be treated alike is anchored in the assumption that one person is the legal equal of
any other. Thus, persons in similar situations should not be treated differently except for legally
relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge's
ability to determine the outcome of a case in a way that he or she might choose if there were no
precedent. This function of precedent gives it its moral force.
Precedent also enhances efficiency. Reliance on the accumulation of legal rules helps guide
judges in their resolution of legal disputes. If judges had to begin the law anew in each case, they
would add more time to the adjudicative process and would duplicate their efforts.
The use of precedent has resulted in the publication of law reports that contain case decisions.
Lawyers and judges conduct legal research in these reports seeking precedents. They try to
determine whether the facts of the present case precisely match previous cases. If so, the
LEGAL METHOD Page 29

application of legal precedent may be clear. If, however, the facts are not exact, prior cases may
be distinguished and their precedents discounted.
Though the application of precedent may appear to be mechanical, a simple means of matching
facts and rules, it is a more subjective process. Legal rules, embodied in precedents, are
generalizations that accentuate the importance of certain facts and discount or ignore others. The
application of precedent relies on reasoning by analogy. Analogies can be neither correct nor
incorrect but only more or less persuasive. Reasonable persons may come to different yet
defensible conclusions about what rule should prevail.
The judicial system maintains great fidelity to the application of precedents. There are times,
however, when a court has no precedents to rely on. In these "cases of first impression," a court
may have to draw analogies to other areas of the law to justify its decision. Once decided, this
decision becomes precedential.
Appellate courts typically create precedent. The U.S. Supreme Court's main function is to settle
conflicts over legal rules and to issue decisions that either reaffirm or create precedent. Despite
the Supreme Court's reliance on precedent, it will depart from its prior decisions when either
historical conditions change or the philosophy of the court undergoes a major shift









LEGAL METHOD Page 30

CHAPTER-VIII
CONCLUSION
It is difficult to define law, but it is easy to define about law. Sources of law are an
important facet to law as it helps in giving a definition to law.
If a study is made of the legal systems in the world in modern times, it would be found
that most of the law is made by legislation. In some countries, especially in Common Law
countries, the decisions of the superior courts, or precedents, also form a source of law. Customs,
too, play a very important parting the framing of laws, and the rights and liabilities of individuals
are determined on the basis of customs, especially upon matters on which there are no pre-
existent legislation, and no precedent to cover the matter. Sometimes customs are abrogated by
the legislation, and at other times are confirmed by their decisions.
The judges, in passing their judgment, take help from numerous other sources of law to,
juristic or authoritative writings, foreign decisions, moral considerations and public opinion. The
law generally comes from these sources. Sources of law are the tools, methods an techniques that
are availed by the legal system in order to carry out its social goals and objectives, which is to
provide justice to the people, most effectively and adequately. Sources of law concerns itself
with the methodology, modes of reasoning and the interpretation of law, and not with the
problems, principles and rules of specified law The sources of Indian law are many and varied.
Many are a legacy of India being a former British colony. Nevertheless, the past is only one
aspect. Laws need constant modifications to suit changing economic, social and political
situations. At the end of the day, what counts is that the rule of law reigns and remains supreme.
In the ultimate analysis it must be said that the advantages of precedent far outweigh its
disadvantages and it has been accepted as one of the most important sources of law in most legal
systems, particularly in U.K., U.S.A., India and Afro-Asian countries. Professor Dias and
Hughes while accepting the importance of precedents as a source of law however, warned that it
should not be stretched too far.

LEGAL METHOD Page 31

References
Bibliography:
Hijam NK. Singh,jurisprudence explained, capital law house, 1999, p.132, Delhi
P.J. Fitzgerald, Salmond On Jurisprudence, 12
th
edition, , Universal Law Publishing
Ltd., Delhi, 2008
S.H. Bailey, Jane Ching, M.J.Gunn, Bailey and Gunn on The Modern English Legal
System, (sweet & Maxwell) London 2002
V.D. Mahajan, Jurisprudence & Legal Theory, Eastern Book Company, 2011, Lucknow

Webliography:
jurisonline.in/2010/03/sources-of-law visited on 3/9/2011 at 4:00 pm
www.aseanlawassociation.org/papers/Brunei_chp2.pd f visited on 11/9/2011 at 11:30 am
nuweb.northumbria.ac.uk/bedemo/Sources_of...Law/page_10.htm visited on 15/9/2011 at
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