jurisprudence and Legal Theory

According to Salmond, "Judicial

precedent means such
d e cision given by the court which
contains a principle of law. The
principle contained in precedent
which gives it an authority, is
called the base of decision".
In other words it may be held that the
judicial precedents
are such principles determined by the
court- which are applied
in the similar nature of cases before
the court in future.
According to Prof. Keeton, "A
judicial precedent is
judicial to which authority has in some
measure been attached".
According to Oxford Dictionary,
"Precedence is a
previous instance or case which is, or
may be taken as an example
of rule for subsequent cases, or by
which some similar act or
circumstances may be supported or
justified".
Blackstone stated that it is as an
established rule to abide
by the former precedents where the
some points come again in
litigation. They also keep the scale of
justice even and steady and
liable to be waved away with every
new judge's opinion.
Bentham has stated the judicial
precedent as 'Judge-
made rule' or `Judge-made law'. Austin
addressed it as 'Judiciary's
law'.
 Accordingly, the precedent is
such a direction which can
become base of future conduct. It can
also be said as such principle
which is applied in the similar nature of
case before the court in
future.
Kinds of Precedent
Mainly, there are two kinds of
precedent or the precedent
can be classified in two classes-
(i)Authoritative precedent;
and
(ii) Persuasive precedent.
( 0 A u t h o r i t a t i v e P re c e d e n t
An authoritative
precedent is one which has a binding
force and the judge must
follow it whether he approves it or not.
These are considered as
a source of law. Authoritative
precedents are the decisions of
superior court of justice which are
binding on sub ordinate courts.
In other words it may be stated that
authoritative precedent has
 binding effect and there is
no scope of discretion of
judge in
relation to it.
(ii) Persuasive Precedent

Persuasive precedent, on
the other hand, is one which
the judges are under no
obligation
to follow. Such precedents
while taking in consideration
may be
given proper importance. For
example, a decision of High
Court
is to be accepted or not by
 other High Court depends
upon
discretion. This is the
reason that Salmond
considered
persuasive precedent as a hist
Nrical source of law, not a
legal
source.
Salmond further classifies
authoritative precedent in two
parts
(a)Impartial
Authoritative
Precedont, and
(b)Conditional
Authoritative
 Precerent
Impartial authoritative
precedent is compulsorily
binding
upon courts. Even in case of
its unreasonablity, it cannot
be
disapproved by the court,
whereas conditional
authoritative
precedent can be denied in
cestain circumstances by the
court to
accept the same.
Salmond has also given two
other kinds of precedent
(a)Original
precedents, and
 (b)Declaratory
precedents
Original precedents means
such decision where in the
courts determine new rules.
The case of "Keshwanand
Bharti
Vs State of Kerala" (AIR
1973 SC1461) is a good example
of it
wherein this new
rule/principle has been
propounded by the
supreme court that the
parliament can alter any
provision of the
constitution except the basic
structure of constitution.
Whereas, on other side the
 declaratory precedent are
such
decisions where new law is not
created rather the rules of
existing
law are declared. Such
precedents are mostly based on
customs.
Doctrine of Stare Decisis
It is recognized principle of
English law. According to this
doctrine the precedents are
authoritative and binding and
it Is
essential to follow for the
courts. When a legal question is
clearly
.determined by many decisions
then the principle to follow
that
and not to revoke it is called
the doctrine of stare decisis.
According to Dias--Following
of decisions in binding force
and it gets itself the form of
law. The decisions of the
courts of
England in the cases having
similar facts are mandatory for
courts
there.
For following of
decisions, two facts
 are essential-
(0 Publication of
reporting, and
(ii) Existence of a
hierarchy of courts.
(i)Publication of
Reporting To follow

the judicial
precedents, publication of
reporting is essential. Successful
use of
them can only be possible on
their publication. This is the
reason
that it has been said by Dias
that "The history of
following
precedents is the history of
law decision magazines and
law
reports".
To develop the doctrine of
following decision, in
England,
credit goes to "Annual law
Decision" magazine. Later on,
many
magazines, Journals,
documents, reports related
to law were
published. Moore, India
appeals are better examples of
it.
These law magazines,
Journals, documents,
reports
commenced to publish also in
 India. I.L.R.; A.I.R; A.L.J;
M.L.J.;
W.L.R.; R.L.W.; R.L.T.;
Judgment today, S.C.C.,
K.L.T.B.L.J.;
M.P.L.J. etc publications
motivated the principle of
following
decisions.
It is also appropriate,
because without availability
of
judicial precedents in codified
form, to follow them is not
possible.
(ii)Existence of
Hierarchy of
courts For

applicability of the doctrine of
stare decisis, existence of
hierarchy
of courts is also essential;
because in absence of such a
hierarchy,
the courts who are to follow
it, cannot be assumed under
the
doctrine of stare decisis, the
decision of a court are to be
followed
by the sub-ordinate courts,
hence a hierarchy of such
courts is
essential. This tradition exists
in England and America
from
beginning.
A hierarchy of courts also
exists in India and according
to that the doctrine of stare
decisis is followed.
 according to article 141
of the constitution, all
courts are
absolutely bound by the
decisions of the Supreme court.
However,'
the Supreme Court is not
bound by its own earlier
decision.
The Supreme Court in
Maktul vs Manbhari
AIR 1958
SC 918, held that if the
correctness of a decision has
been
challenged time and again, the
rule of Stare decisis need not
be
applied.
In Sarwan Singh
Lamba Vs Union of
India AIR 1995
SC 1729 the Apex Court ruled
that even obiter dicta of
Supreme
Court is expected to be
followed by other courts.
State of Madhya
Pradesh Vs Balbir
Singh (A.I.R.
2001 M.P. 268)It was said
that in case of different decision
by
two co-equal benches of
Supreme Court on a single
matter, that
decision should be followed
which is in accordance to the
scheme
of act and is reasonable.
A similar view was
expressed in 'New
India Insurance
Co. Ltd. V/s Smt. Tara
Sundri Fauzdaar (A.I.R.
2004
Calcutta). Calcutta High Court
held that where there are
different
decision on a matter, by two co-
equal benches of Supreme
Court,
there the High Court shall
follow that decision which gives
correct
 and clear interpretation of law.
Pandurang Kalu Path V/s
State of Maharashtra
(A.I.R.
2002 S.C. 733)A question
arosed that whether the
decision of
Privy Council is binding over
High Courts? Supreme Court
said
that it is binding provided that
it has not been overruled by the
Supreme Court. The intention
is that the decision of Supreme
Court are binding over High
Court, but
(i)a decision of one High
Court is not binding
 over another
High Court, rather
are persuasive, and
(ii)If there are different
decisions in a matter by
different
benches, then that decision
shall be followed which is
reasonable and
according to law.
Unwelcome authorities can
easily be avoided by the
courts. The courts are not
bounded to accept such
judgments
which are given or decided
sub-silentio. In this context
the case
of 'Sun and Sand Hotel
Limited Versus Messrs
V.V.
 Kam'ual (AIR 2oo3
Mumbai i68) is a good
example, wherein it
has been determined by the
Mumbai High Court that
Judgment
sub-silentio is not
acceptable.
There may be following
grounds for avoiding the
undesirable foundation of
the doctrine of stare
decisis-
(i)When a precedent
has been repudiated
by a legal Act.
(ii)When a decision
has been given on the
grounds other
then the basis of
decision of sub-
ordinate court.
(iii)When a decision
has been given due
to ignorance of
any statute.
(iv)When a decision
is not in consonance
with earlier
decision.
(v)When a decision
is given sub-
silentio.
(vi)When a
decision is having
an error.
 (vii)When a
decision is based on
incorrect
reporting.
Ratio DecidendiSuch
Judicial principles making
a
precedent authoritative are
called Ratio decidendi, which
are
made applicable by the
Judges in the similar cases
in future.
Ratio decidendi is obligatory
for sub-ordinate courts. No
court can deny following
them, whether he is agreed
with it or
 not.
It has been well commented
by the Supreme Court in the
case of 'Director of
Settlement, Andhra
Pradesh Versus
M.R. Appa Rao (AIR 2002
SC 1598). It has been said
by the
Supreme Court that Ratio
decidendi has binding force.
Ratio means
the principle found out on
reading of judgment in light of
question
before the court.
According to Salmond, "The
 legal principle contained in
the precedent- which gives
the decision an authoritative
force,
that principle is called Ratio
decidendi.
According to Keeton, "The
Ratio decidendi is actually
such a principle of law which
becomes a base for a decision
in a
case".
According to Patton,
"The Ratio decidendi is
a
propounded principle as a
base of the decision by a
Judge".
 In the words of Roopert
Cross, "The Ratio &xi' di i s
a rule of recognized law in
express way or impliedly &
necessary
step to reach at a decision by
the Judge.
According to Goodhart, "A
conclusion drawn by the
Judge s in a c ase on t he basi s
of i ts facts is called the
Ratio
decidendi".
In this way, the ratio
decidendi is
(i)Such a judicial
principle which gives an
 authoritative
status to precedent.
(ii)Binding on all
courts.
(iii)Applied to
similar cases arise in
future.
(iv)Helping the court
i n d r a wi n g a
conclusion.
Obiter Dicta
O b i t e r d i c t a i s d i f f e ren t
f ro m t h e r a t i o d e c i d e n d i .
Pronouncements of law, which
are not part of the ratio
decidendi,
are called as obiter dicta. They
are not authoritative or
binding
on sub-ordinate courts. They
have a persuasive effect.
According to Patton, "The
obiter dicta are such thoughts
about the law expressed by the
judge in his decision which are
not necessary to solve the
question arose from the
decision".
According to Black, "The
obiter dicta are such a logical
statement of law expressed by
the court which is unnecessary
for
drawing a conclusion.
It has been said by the
Supreme Court in the case
 of
"Director of Settlement
.Andhra Pradesh Versus
M.R.
Appa Rao" (AIR 2002 SC
1598), that obiter dictum has no
binding
force but has considerable
weight.
In the case of 'Arun Kumar
Agrawal Versus State of
Madhya Pradesh' (AIR 2311
SC ;3o56), it has been said by
the
Supreme Court that obiter
dictum is a mere observation of
remark
made by the court by way of
aid while deciding the actual
issue
before it.
Distinction There are
following differences in ratio
decidendi and obiter
dictum.
(i)Ratio decidendi is
necessary for
awarding a decision
in a case, whereas
obiter dictum is
not necessary for
a decision.
(ii ) Ra ti o dec i de ndi i s
a wel l considered
statement in
reference to
matched facts in a
case whereas
obiter
dictum is a
statement about
the immaterial
facts.
(iii)Ratio decidendi
originated the
principle of judicial
mentioned before.
Whereas the
obiter dictum
does
n o t b ec o m e p a r t
a n d p a rce l o f t he
p r i n ci p l e o f
precedent.
( iv ) R a ti o de ci d en di
ha s bi nd i ng fo rce
w he rea s o bi te r
dictum has
persuasive effect.
Courts are not bound
to follow decisions
which have been
delivered sub-silentio. In this
respect, there is a good case
'Sun
and Sand Hotel V/s Mr.
V.V. Kamal (A.I.R. 2003
Bombay
i68)The Bombay High Court
held that Judgement Sub-
silentio
is not acceptable.
OBIT
ER
DICT
A
All that is said by the
court by the way of
the statements
of law which go beyond the
requirements of the
particular case
and which lay down a rule
that is irrelevant or
unnecessary for
the purpose in hand are called
as obiter dicta. The dicta have
the
force of persuasive precedents
only. The judges are not
bound to
follow them but they can take
advantages of them.
Obiter help in the growth
of law. These sometimes
help
the cause of the reform of law.
The defects in the legal system
can
be pointed out in the obiter
dicta. The public should be
grateful
to them for their labour of
law.
Sarla Mudgal Vs Union
of India 1996 case is an
example.
Dicta To prepare a

uniform civil code for all

citizens a
constitutional directive under
Article 44
Ratio Decidendi
According to Salmond--
A precedent is a judicial
decision which contains itself a
principle. The underlying
principle
Merits
(1)Precedents enable
the judge to re-
shape law
according
to the social needs. It
provides useful guidance
for
the deciding-
judge in
disposing of the
cases.
(2)The precedent
helps people to
know the intricate
principles of law
 to a considerable
extent.
(3)Precedents provide
useful guidelines for
the judges in
deciding cases
before them.
(4)Citing of
Precedent and case-
law helps the
members
of the Bar to substantiate
their argument without
waste of unnecessary time
and energy. Much of time
of the judges and advocates
is saved in searching the
 relevant law from
the books.
(5)Precedents provide
flexibility to law to
adapt itself to
new situations
and social
conditions.
(6)Precedents being
the result of
concrete problems
which actually arose in the
case, gives rise to practical
8( perfect law.
Demerits
In the cam' ( f Itajendra

P r a s a d Ve r s u s U n i o n
of
Indi a' (AIR 1979 SC 916), it
has been said by the Supreme
Court
that if the judicial precedents
are used in an appropriate way
then
they have to importance a
legal logic.
precedents are
(1) J u d i c i a l
published in la-reports
which are in such a large
number that it becomes
practically difficult to find out
a particular case from
such a voluminous legal
literature.
 It often oerlooks the
fundamental rule of
natural
justice that law must be
known before it is
actually
enforced.
At times erroneous decision of
superior courts create
practical problems for the
subordinate judges as they
are bound to follow these
decisions howsoever wrong
or defecti% e.
(4) One of the greatest set-
back of precedent is that the
 development of law
through case-law more or
less
depends on chance. If there
has been no litigation on
an important legal issue,
the court shall never have
opportunity to create
precedent on that point and
no
case-law would be
available on that
issue.
(5) Bentham holds that
judicial precedent is
arbitrary in
 character. Unlike
legislature the judges are
not
responsible to anyone
hence they are likely to be
arbitrary in using
their discretion.
(6) One practical difficulty
in judicial precedents is
that
what should be test for
determining the validity of
law made by case
law.
Importance of Precedents
Judicial Precedents had the
importance in creation of
 law
and judicial adjudication
from the beginning. The
common law
legal system is identified by
the binding of its precedents.
The decisions of Supreme
Court are guidelines to
subordinate courts in matter
of similar nature and
simplifier their
duty of judicial
adjudication. The codified
Judicial decision in
various law books and
journals also assist the
Advocates.
 Few Precedents are of
binding nature which are
required
to be followed by the
subordinate courts.
I l l u s tr a ti o n Ho u s e o f
L o r ds i n E ng l a n d a n d t h e
Supreme Court in India have
binding effect over all other
courts,
although they themselves are
not bound to it. On other
hand, few
precedents are of
persuasive nature, which
the court are not
bound to follow; but still
they could be used by court
to reach
any correct conclusion.
Although Dicey & Allen
have criticized the judicial
precedents by saying that
-looking to the increased
number of
judicial decisions, it is very
difficult to find out them
and there
are more possibilities of
wrongful reporting in law
magazines/
reports.
After all, looking to merits
of judicial precedent, the
importance of them in
creating law cannot be
denied.