Jurisprudence – Precedents A Source of Law (Notes prepared by Law Expert Dr. Rekha Khandelwal)
In jurisprudence, precedent refers to the legal concept that past court decisions or rulings can be used as a source of law and should be followed as a guide in similar future cases. This concept, also known as stare decisis,
Definition of Precedents
According to Bentham, precedents are judge made laws’
According to Austin, precedent is “judiciary’s law”.
According to Blackstone :- The scales of justice remain balanced and stable by the use of precedents.
According to Salmond : -Precedent is, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’
‘In a strict sense, that case law which not only has a great binding authority but must also be followed.’
According to Grey: – Judicial precedent covers everything said or done which furnished a rule for subsequent practice.
According to Oxford dictionary ‘precedent ‘ means ” 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).
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 inferior jurisdiction administering the same system until it has been overruled by superior court of justice or by a statute.”
In short, we can say precedent means the guidance or authority of past decisions for future cases.
Doctrine of Stare decisis (Precedent Doctrine)
According to it, precedents are authoritative and binding, and other courts must follow them.
The concept is known as “the doctrine of stare decisis,” which means “to stand by things decided.” It emphasizes that a judicial decision should be allowed to stand in its appropriate place. When judicial judgement establishes a new principle, it is binding on the subordinate courts.
The general concepts underlying the theory of “stare decisis” are as follows:-
- Every court must obey the rulings of the higher courts.
- The Indian Supreme Court is not bound by its own decisions.
- A smaller bench, on the other hand, is bound by the decision of a larger bench.
The Precedent Doctrine in the Supreme Court
(1). The Supreme Court is not bound by its own precedents. A smaller bench, on the other hand, is bound by the decision of a larger bench.
(2). The decisions of the Privy Council and the Federal Court of India are not binding on the Supreme Court. They are only persuasive in the Supreme Court. However, they are held in high regard by the Supreme Court.
(3). The Supreme Court is not bound by the decisions of foreign courts, such as the Supreme Courts of the United States or the United Kingdom.
Land mark Cases –
- Bengal Immunity co ltd VS state of Bihar,AIR 1955 SC
- Sajjan Singh VS State of Raj, AIR 1965,SC.
- Golak Nath VS State of Punj, AIR 1967 SC
- Kesavananda Bharati VS State of Kerala 1973, 4 SCC
The Precedent Doctrine in the High Court
(1) The rulings of the Supreme Court of India are binding on all high courts.
(2) Subordinate courts within a high court’s jurisdiction are bound by its rulings. For example, all district courts in Punjab, Haryana, and Chandigarh are bound by the rulings of the Punjab and Haryana high court.
(3) The rulings of one high court are only persuasive before other high courts and subordinate courts under the authority of other high courts.
(4) The rulings of a division bench (2 judge bench) and a full bench (3 judge bench) of the same high court are binding on a single judge bench of the high court.
(5) The rulings of foreign courts are not binding on the Indian high court.
The Precedent Doctrine in Subordinate Court: –
The rulings of the supreme court are binding on subordinate courts like district and session court, magistrate’s court, civil court, etc. at state level in India.
Form of Precedents: –
- Ratio Decidendi
- Obiter Dicta
- Ratio Decidendi – The term “ratio decidendi” literally means “reasons for the decision.” The basis for a court decision is the rule of law. In the other words, It is the essence of a judgement. Salmond defines ratio decidendi as the rule that the court uses to decide a specific case. These rule of law has binding authority.
- Obiter Dicta – The term “Obiter Dicta” literally means “something said by the judge by the way” Obiter dicta are the judge’s supplementary observations, opinion, and viewpoints on other issues. These frequently provide the court’s reasoning for its decision and have persuasive value only.
Types of Precedent
Authoritative Precedent – Authoritative Precedents are also known as binding precedents. These precedents must be followed by a lower court or other similar court once a judgement has been issued, whether they approve it or not.
- Absolutely Authoritative Precedent – courts are bound to follow the judicial ruling of the precedent in a question of law even the judge believes the precedent is incorrect. For example, because of the hierarchy, every court in India is totally bound by the rulings of superior courts to itself.
- Conditional Authoritative Precedent – A conditionally authoritative precedent is one in which the precedent is normally absolute but can be discarded in certain rare circumstances, such as a Supreme Court judgement. The court may overturn the decision if it is incorrect or violates the law and logic.
Persuasive Precedent – Persuasive precedents are decisions made by a lower court that are not required to be followed by a higher court or any other court. It is a matter for the court to decide whether or not to consider it.
Original precedent – An original precedent occurs when the court has never made a ruling in a matter and must rely on its own judgement to make a verdict. It contributes to the development of new legislation. For example,
- Case – Golaknath vs. State of Punjab : Original Theory of prospective overruling
- Case – Keshawanand Bharti vs. State of Kerela : Theory of Basic Structur
Declaratory precedent – Declaratory precedent is a case-specific application of existing precedent. A declarative precedent includes announcing an existing law and bringing it into effect; thus, it does not aid in the creation of new law.
Theory of precedents –
- Declaratory theory of judicial precedents
- Judges make law
Declaratory theory of judicial precedents –
According to this theory, the main role of judges is just to declare the law, not to make the law. They only discover and declare the law.
The chief proponents of this theory are Blackstone, Coke.
Black Stone :-The role of judges is to declare the law, not to make it.
Coke :- Judicial decisions are not a source of law, but they are the best proof of law.
Judges make laws –
According to this theory, judges not only declare the law, but also make it.
Chief jurists of this theory are Lord Bacon, Grey, and Diecy.
Lord Bacon :- the points decided by judges in first-impression judgements provide a “distinctive contribution to the existing law.”
Grey :- judges alone are the makers of law.
Diecy :- Judges made the law.
Circumstances (Facts) which destroy the binding force of Precedent :
Any decision that is overruled by a future ruling loses all binding authority. However, there are several other circumstances which also destroy the binding force or precedent. These are as follows:
- Ignorance of statute
- Inconsistency between earlier decision of higher court
- Inconsistency between earlier decisions of the same court
- Precedent sub silentio
- Dissenting judgements
- Erroneous Decisions
- Abrogated decisions
- Affirmation or reversal on a different ground
Ignorance of statute – A precedent is not binding if it is made in ignorance of any statute and being aware of existence of any statute but failed to recognise its significance in the case at hand due to negligence or ignorance.
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 or there is inconsistency between earlier decision of higher court.
Inconsistency between earlier decisions of the same court – A court is not bound by its own earlier decisions that are contradictory to one another.
Precedent sub silentio – When the issue of law involved in a judgement is not fully contested or comprehended by the court, it is said to be sub silentio. As a result, when this very question was contested in a future case before the court of appeals, the court decided that it was not bound by earlier decisions because the point was sub silentio in the previous decisions.
Dissenting judgements – The majority of judicial decisions are consensus. However, few judges will write or even note a dissent in a case where they disagree with the majority. While judges are entitled to disagree on judicial matters and legal interpretations in a case, the majority always makes an attempt to minimise or even remove dissent.
Erroneous Decisions – Decisions that are based on erroneous foundations or are in disagreement with fundamental legal principles lose all binding force.
Abrogated decisions -If a decision is erroneous or unreasonable, it may be overturned by a subsequent enactment or judgement of a higher court.(This is phrased in Latin as “cessante ratione legis cessat ipsa lex”). If a statute that contradicts the judgement is later enacted, the decision is no longer binding.
Affirmation or reversal on a different ground – When a higher court either affirms or reverses a lower court’s judgement on a ground other than the one on which the judgement is based, the original judgement does not lose all authority, but the subsequent court may conclude that a particular point that the higher court did not address is correctly decided.
Advantages of Precedents –
Efficiency :- Utilising precedent can save time and money by eliminating the need to start from scratch each time a new case arises. Instead, the court can use precedent to inform its decision-making.
Predictability :- Precedent-based law helps make the legal system predictable, which is beneficial for people. They can better comprehend how the law applies to their situation and make wise decisions by considering previous judgements.
Judicial effectiveness: Relying on precedent can assist courts in avoiding having to re-litigate previously determined matters. This could help the justice system run more smoothly and efficiently.
Consistently :- Precedent assists in ensuring that similar situations are decided consistently. This means that, regardless of the court or judge hearing the case, similar cases will be decided in the same manner.
Fairness :- everyone must be treated equally and fairly. It aids in stopping judges from making arbitrary judgements based on prejudice or opinion.
Disadvantages of Precedents
Inflexibility : – Precedents can occasionally be rigid and prohibit the law from changing to take into account new situations or societal changes. This may lead to out-of-date or unfair outcomes.
Uncertainty : – Since precedent is built on earlier rulings, it’s possible to be unsure about what the law is in reality.
Limitation & Judicial discretion : – Precedent can restrict a judge’s capacity to utilise their own discretion while making a decision in a case. Even if a judge feels that departing from a rigorous rule established by a previous ruling will produce a more equitable result, they might not be able to do so.
Unjust consequences :- If a prior judgement was made using incorrect or prejudiced logic, precedent may also lead to unjust outcomes. In certain situations, depending on precedent may actually make injustices worse rather than better.
Creativity-stifling: Relying too much on precedent can occasionally stifle creativity and original legal thought.
MCQs
- Which statement is true about a binding precedent?
- (a) A precedent that should be followed by lower courts.
- (b) A precedent that should be followed by lower courts.
- (c) A precedent that is not influential in future cases.
- (d) A precedent that contradicts statutory law.
Answer: (a) A precedent that should be followed by lower courts.
2. As per the ‘declaratory theory of Precedents, the judges only declare the existing law and don’t make any law. Who were the supporters of this theory?
- (a) Bacon and Dicey
- (b) Gray and Salmond
- (c) Coke and Blackstone
- (d) Duguit and Pound
Answer: (c) Coke and Blackstone
3. Which Latin term is often used to refer to the principle of precedent?
- (a) Stare decisis
- (b) Habeas corpus
- (c) Res ipsa loquitur
- (d) Pro bono
Answer: (a) Stare decisis
4. Which term is used for a precedent that is not binding but can be considered persuasive by a court?
- (a) Mandatory precedent
- (b) Obiter dicta
- (c) Ratio decidendi
- (d) Persuasive precedent
Answer: (b) Obiter dicta
FAQs
- What is the difference between binding and persuasive precedents?
Answer – Binding Precedents are also known as Authoritative precedents. These precedents must be followed by a lower court or other similar court while persuasive precedents are not binding but may be considered by a court when making a decision.
2. Explain the Theories of Precedents.
Answer – Declaratory theory of judicial precedents and Judges make laws –
Declaratory theory of judicial precedents –
According to this theory, the main role of judges is just to declare the law, not to make the law. They only discover and declare the law. The chief proponents of this theory are Blackstone, Coke.
Black Stone :-The role of judges is to declare the law, not to make it.
Coke :- Judicial decisions are not a source of law, but they are the best proof of law.
Judges make laws –
According to this theory, judges not only declare the law, but also make it. Chief jurists of this theory are Lord Bacon, Grey, and Diecy.
Lord Bacon :- the points decided by judges in first-impression judgements provide a “distinctive contribution to the existing law.”
Grey :- judges alone are the makers of law.
Diecy :- Judges made the law.
What are the types of Jurisprudence?
Answer: Authoritative Precedent – Authoritative Precedents are also known as binding precedents. These precedents must be followed by a lower court or other similar court once a judgement has been issued, whether they approve it or not.
- Absolutely Authoritative Precedent – courts are bound to follow the judicial ruling of the precedent in a question of law even the judge believes the precedent is incorrect. For example, because of the hierarchy, every court in India is totally bound by the rulings of superior courts to itself.
- Conditional Authoritative Precedent – A conditionally authoritative precedent is one in which the precedent is normally absolute but can be discarded in certain rare circumstances, such as a Supreme Court judgement. The court may overturn the decision if it is incorrect or violates the law and logic.
Persuasive Precedent – Persuasive precedents are decisions made by a lower court that are not required to be followed by a higher court or any other court. It is a matter for the court to decide whether or not to consider it.
Original precedent – An original precedent occurs when the court has never made a ruling in a matter and must rely on its own judgement to make a verdict. It contributes to the development of new legislation. For example,
- Case – Golaknath vs. State of Punjab : Original Theory of prospective overruling
- Case – Keshawanand Bharti vs. State of Kerela : Theory of Basic Structur
Declaratory precedent – Declaratory precedent is a case-specific application of existing precedent. A declarative precedent includes announcing an existing law and bringing it into effect; thus, it does not aid in the creation of new law.