PRECEDENT

Judicial Precedent is an important source of law. In fact, doctrine of precedent is a unique

feature of English law as also of the Common law countries. In England, judge played a
significant role in developing the English law. During the middle ages when the Parliament
had not assumed the status of a sovereign law making body, it was left to the judges to define
law and to lay down legal principles. Thus, adjudication in England made a great contribution
towards the formulation and development of English law. This principle which was so
common in England is not unknown in countries like USA, India, Australia, and Canada and
in many other common law countries where the doctrine of precedent has been followed.

MEANING OF DOCTRINE OF PRECEDENT:

A precedent means a previous instance or case which is or may be taken as an example or

rule for subsequent cases. In common parlance it means something said or done that may
serve to authorise or justify further acts of the same or a similar kind.

According to Salmond, the doctrine of precedent has two meanings, namely:

 In a loose sense, precedent includes merely reported case-law which may be cited and
followed by the courts.
 In a strict sense, precedent means that case law which not only has a great binding
authority but must also be followed.

According to Keeton, judicial precedent is a judicial decision to which authority has, in some
measure, been attached. Similarly, Gray said, a precedent covers everything said or done
which furnished a rule for subsequent practice.

According to Jenks, a judicial precedent, is a decision by a competent court of justice upon a

disputed point of law, becomes not merely a guide but an authority to be followed by all
courts of inferior jurisdiction until it has been overruled by superior court of justice or by a
statute.

Therefore, precedent means the guidance or authority of past decisions for future cases.
However, whether or not a particular decision i.e. precedent become binding depends on two
main factors:
  It must have been pronounced by a court which is sufficiently senior.
 It is only the reasoning behind the decision which is binding.

IMPORTANCE OF DOCTRINE OF PRECEDENT:

 It is based on practical experience. Allen pointed out that the judge is the interpreter
of social mind and he can easily adapt the law to the changing wants of those amongst
whom the law is administered.
 It is based on convenience in the sense that it provides settled law and thus saved the
labour of judges.
 It prevents error of judgment by individual judges.
 It prevents partiality on the part of the judges.
 It helps the lawyers to take a cautious view of the development of law on the basis of
past judicial experience.

KINDS OF PRECEDENT:

 AUTHORITATIVE AND PERSUASIVE PRECEDENT: An authoritative

precedent is one which has a binding force and the judge must follow it whether he
approves of it or not. Authoritative precedents are the decisions of superior court of
justice which are binding on subordinate courts.
Persuasive precedent on the other hand is one which the judges are under no
obligation to follow but which they may take into consideration. Persuasive
precedents include foreign judgments and judicial obiter dicta.

 DECLARATORY AND ORIGINAL PRECEDENT: According to Salmond, a

declaratory precedent is one which is merely the application of an already existing
rule of law. An original precedent is one which creates and applies a new rule.
POSITION OF PRCEDENT IN INDIA:

Before 1950:

In the 19th century because of the popularity of the publication of reports of decided cases, the
doctrine of precedent acquired a more significant place. It was, however, in the twentieth
century that the doctrine of precedent got statutory recognition.

Section 212 of the Government of India Act, 1935 made the laws declared by federal court
and Privy Council to be binding on all courts in British India.

After 1950: At present the hierarchy of court in India is as follows:

Magistrate
Court (in case
of criminal
Supreme Court High Courts District Courts cases) and
Munsif Court
(in case of civil
cases)

Supreme Court: Article 141 of the Constitution of India provides that the law declared by
the Supreme Court shall be binding on all courts within the territory of India.

The Supreme Court is the apex court and its decision is binding on all the courts. But the
question is whether all courts include Supreme Court i.e. whether Supreme Court is bound by
its decision or not.

In Bengal Immunity Co. v State of Bihar, it was observed that there is nothing in Indian
Constitution which prevents the Supreme Court from departing from its previous decision if
it is convinced of its error and its baneful effect on the general interest of the public.
Similarly, in Maganlal Chagganlal v Municipal Corporation of Greater Bombay, it was
observed that if the previous decision is erroneous and has given rise to public inconvenience
and hardship, there is no harm in overruling such decision. In Union of India v Raghubir
Singh, it was observed that a question is not whether SC is bound by its own decision but the
real question is that under what circumstances and under what limits and in what manner
should the highest court overrule its own pronouncements.

Therefore, position is that Supreme Court is not bound by its own previous decisions and can
overrule its previous decision, particularly on constitutional matters but what is the limit on
such overruling power is still not answered.

High Court:

 The High Courts in India are bound by the law declared by the Supreme Court.
Decisions of the Supreme Court are binding only so long as they have not been
overruled by the Supreme Court.
 The decisions of a High Court are binding on all the courts below it within its
jurisdiction.
 The judgment of a particular High Court is not binding on other High Courts. The
decision of one High Court is only of persuasive value for other High Courts.
 The decisions of a larger bench are binding on a smaller bench. Example: A single
judge is bound by the decision of a division bench (two judge bench).
 A bench is not bound by the decisions of another bench of equal authority. Example: a
division bench is not bound by the decision of another division bench.

Lastly, all district courts, magistrate courts and munsif courts are bound by the decisions of
Supreme Court and High Courts (within its jurisdiction). Again, Munsif courts and
Magistrate courts are bound by the decision of district courts (within its jurisdiction).

CIRCUMSTANCES WHICH DESTROY THE BINDING FORCE OF JUDICIAL

PRECEDENTS:

 Ignorance of Statute: A precedent is not binding if it be rendered in ignorance of any

statute or any other rule having the force of statute.
 Inconsistency between earlier decision of higher court: A precedent loses its
binding force completely if it is inconsistent with the decision of a higher court.
  Inconsistency between earlier decision of the court of same rank: A court is not
bound by its own earlier decisions which are conflicting with each other.
 Precedent sub-silento: A decision is said to be sub silent when the point of law
involved in it is not fully argued or perceived by the court. Therefore, when the point
not argued come before the court in a subsequent case, the court will not be bound by
the previous decision
 Decision of equally divided court: There may be cases where the judges are equally
divided. In such a case practice is to dismiss the case and hold that the decision
appealed against is correctly decided. But this problem does not arise now-a-days
because benches are always constituted with uneven number of judges. In India,
where the division bench is divided, the practice is to refer the case to a larger bench.
 Erroneous decisions: The decisions which are founded on misconceived principles
or in conflict with the fundamental principles of law lose their binding force totally.
 Abrogated decisions: A decision ceases to be binding if statute inconsistent with it is
subsequently enacted.
 Affirmation and reversal on a different ground: When a higher court either affirms
or reverses the judgment of the lower court on a ground different from that on which
the judgment rests, the original judgment is not deprived of all the authority but the
subsequent court may take a view that a particular point which the higher court did
not touch, is rightly decided.

MERITS AND DEMERITS OF DOCTRINE OF PRECEDENT:

MERITS:

 Case-law being an outcome of continuous judicial process, it is more in keeping with

the needs of the society.
 Precedent being based on vast experience and maturity of the judges, provide useful
guidance.
 Precedent being the result of concrete problems which actually arose in the case gives
rise to practical and perfect law.
 The law contained in case law is certain and easy to understand.
 Precedent provides flexibility to law to adapt itself to new situations and social
conditions.
  As a matter of great convenience it is necessary that a question once decided should
be settled and should not be subject to re-argument in every case in which it arises.
 Precedents guide judges and consequently, they are prevented from committing errors
which they have committed in the absence of precedents.

DEMERITS:

 There is always a possibility of overlooking authorities. The vastly increasing number

of the cases has an overwhelming effect on the judge and the lawyer. It is very
difficult to trace out all the relevant authorities on every point.
 The development of law depends on the incidents of litigation and sometimes, most
important points may remain unadjudicated because nobody brought action upon
them.
 Sometimes, the conflicting decisions of a superior tribunal throw the judge of a lower
court in dilemma.
 Sometimes, an extremely erroneous decision is established as law due to not being
brought before a superior court.

DOCTRINE OF STARE DECISIS:

The fundamental principle on which the doctrine of precedent is based is known as stare
decisis which mean that let the decision stand. Any previous decision of a higher court is
binding on judges in lower courts, unless there are reasonable grounds for distinguishing the
case on its facts.
The phrase ‘stare decisis’ is itself an abbreviation of the Latin phrase ‘stare decisis et non
quieta movere’ which translates as ‘to stand by decisions and not to disturb settled matters’.
Cardozo stated that:
“If a group of cases involves the same point, the parties expect the same decision. It would be
a gross injustice to decide alternate cases on opposite principles. Adherence to precedent
,must then be the rule rather than exception if litigants are to have faith in the even handed
administration of justice in the courts.”
There was no doctrine of stare decisis as there was no reporting of the decisions of the courts,
It was in the 17th century that the decisions of the courts came to be reported in England and
were given a binding force. After this the need for recognising the binding force of
precedents was reiterated time and again.

The operation of the doctrine of stare decisis presupposes the existence of a hierarchy of
courts. The doctrine of stare decisis has been recognised by the Constitution of India under
Article 141 which provides that the law declared by the Supreme Court of India shall be
binding on all courts in India.

The general principles on which the doctrine of stare decisis is based in India may be stated
as follows:
 Each court is absolutely bound by the decisions of the court above it.
 The Supreme Court is not bound by its own earlier decision.
 The decision of one High Court is not binding on any other High Court and it has only
a persuasive value.
 A Single judge bench is bound by the decision of a division bench.

In Maktul v. Manbhari, it was observed that if the correctness of a decision has been
challenged time and again, the rule of stare decisis need not be applied.

In Supreme Court Advocates on Record Association v Union of India, it was observed that
the doctrine of stare decisis is not an inflexible rule and it has little relevance in constitutional
cases. The court observed that there is no doubt that the rule of stare decisis brings about
consistency and uniformity but at the same time in exercising its inherent power the Supreme
court should ask itself whether in the interest of public good or any other valid reason, it is
necessary that its earlier decision should be revised.

Advantages:
 Certainty.
 Uniformity.
 Consistency.
 Helps in keeping pace with the society.
 Flexibility.
 Easy to understand.
  Curtails the judicial discretion to some extent and thereby curbs the arbitrariness of
the judges.
 Facilitate effective and speedy administration of justice.
 Related to justice and fairness.

Disadvantages:

 Conflict with the concept of living law.

 Conflict with individualized justice.