October 28, 2021

What are Precedents and Precedents as a Source of Law

law

Introduction

A precedent is the assertion of law that is discovered in the decision made by the Supreme Court, whereby the decision must be followed by itself as well as all the lower courts. The judges must follow the past decisions cautiously in the cases before them and use it as a manual for all present or future decisions. Thus, judicial precedents act as a source for future decision-making.

Doctrine of Precedent

According to Keeton, “a judicial precedent is judicial to which authority has in some measure been attached.”[1]

According to Salmond“In a loose sense, it includes merely reported case law which may be cited and followed by courts.  In a strict sense, that case law not only has great binding authority but must also be followed.  In all precedents is the authority of past decisions for future cases. It must be reported, cited, and followed by courts”

The primary object of the doctrine of precedent is that the laid down laws ought to be clear, certain, and reliable so that the Courts shall follow them decisively.

Moreover, R. S. Pathak, C. J. in Union of India v. Prithpal Singh[2]stated that:

 “The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides assuring the individual as to the consequence of transactions forming part of 4 daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”

In-State of U.P. v. Synthetics & Chemicals Ltd[3], the Court held that:

“any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be a declaration of law or authority of a general nature binding as precedent…. A conclusion without reference to the relevant provision of law is weaker than even casual observation”.

Stare decisis: When the Court settles an issue, a contention, or a dispute between parties, it turns into the law on those issues and disputes. Such a decision is termed to be a precedent. A precedent is an assertion of law found in rulings of the prevalent court. The cases dependent on comparable facts decided by a court may emerge in any future case. Following past rulings in present or future cases, the court may save time and uniformity in decisions, carrying consistency to law. The court settles a question of law or fact, it is ideal to remain by that decision while deciding alike cases later on. Before deciding a case, the Judges investigate into precedents if any. They then apply the precedent on current issues or cases before them.

The reason behind the decision is an important factor. The explanation and standards on which a court gives its ruling in a case structure a precedent.

In the case of Commissioner of Income Tax V. Sun Engineering Works Private Limited[4]   the Court held that “while applying the decision to a later case, the court must carefully try to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the Judgment divorced from the context of a question under consideration by the court to support their reasoning.”

Precedent as a source of law

Judicial Precedents are an important source of law. They have enjoyed high authority at all times and in all countries. Judicial precedents are an important source of law, especially when it comes to the common law system. It needs to be noted that the common law system evolved and evolves due to judicial precedents.

According to Salmond: “The great weightage of the unwritten law is almost entirely the product of outside cases, collected in an enormous series of reports extending backward, if it’s not in theory, the common law of England has been created by the decisions of English judges.
Blackstone writes“For it is an established rule to respect the former precedents, where the same points come again in litigation, as to keep the rule of justice even and different and not liable to with every judge’s opinion, as also because the law, in that case, being perfectly declared, what before was uncertain has now become the permanent rule, subsequent judge to alter according to private opinions.”

This principle isn’t just the evidence of laws but also the source of law. It is a way to persuade the judges. Cases decided by the court with no thought on rule of law, cannot be treated as precedent[5]

But according to some authors such as Stobbes and Savigny, Precedents are not sources of law but are mere evidence of customary law.

According to Stobbes “Judicial Precedent is a practice and hence a in practice itself cannot be considered as a source of law.”

 It is a settled position that precedents are purely constitutive and in no degree propagative, that is a Judicial decision can make a law but not alter it.

Binding effect of Precedent

Article 141 of the Constitution states that: “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.”[6]

This article institutes that the law announced by the Supreme Court will be restricting “all courts” in the region of India. The term “law declared” infers the law-making function of the court. The expression ‘all courts’ means the lower courts. The decision of the Supreme Court is restricting on the High Courts and they can’t overlook it on the ground that pertinent rules were not considered by the Supreme Court while the decision was made and therefore its decision is not binding[7]. The judges must follow the past decisions cautiously in the cases before them and use it as a manual for all present or future decisions [8]. The law pronounced by the Supreme Court is restricting on the State and its officials, and they will undoubtedly follow it whether the respondents in a specific case were parties or not to the petition[9]. Even the orders released by the court in a ruling are considered to be a binding law under Article 141. The Supreme Court has the power to overrule its prior decisions[10] by either explicitly overruling it or implicitly by not following it in future cases. They have the power to reverse their decisions on constitutional matters if they think it is flawed.

In Sajjan Singh v. the State of Rajasthan[11], the Supreme Court said:

“Indeed, the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decisions of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of the general welfare.”

Even so, the general instruction that judgments given by the Supreme Court would be binding, ought not to be disregarded and unless factors of significant and persuasive appeal make it necessary to do so, the Supreme Court would be delayed to question the rightness of past choices or to withdraw from them. However, the Supreme Court will audit its previous ruling even though the ruling has held the field for an extensively significant time-frame, on the off chance that it is satisfied with its mistake or the pernicious impact which a decision would have on the overall interest of the general public, or if it is “inconsistent” with the philosophy of our Constitution[12]. If there is an obvious struggle between decisions of the Supreme Court, the opinion presented by bigger Benches of the Supreme Court should be continued in inclination to those of smaller Benches, except if the former can be recognized by giving reasons. Regardless of whether out of oversight or in any case a Constitution Bench ruling of at least five judges has not been followed by smaller Benches in subsequent cases, the Constitution Bench decision should be followed when it is brought to light in the court. The ruling of smaller Benches in cases like this shall be termed as per incuriam[13].

The precedential value of a decision like this has been explained by the court in State of M.P V. Narmada Bachao Andolan[14]

“the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed because one additional or different fact may make a world of difference between conclusions in two cases”

The Supreme Court may likewise audit its prior decision if some patent parts of the case stayed unseen, or if the consideration of the court was not attracted to any important and material legal provisions, or if any past rulings of the court similar to the fact of the matter were not seen, or if the decision was wrong[15] .

Kinds of precedents

Authoritative precedents

Authoritative precedents are final and binding on all lower courts. The approval of the lower courts is irrelevant. As indicated by Salmond, Authoritative Precedent is a source of law. It builds up law in the acquirement of a definite rule of law which gives upon them that impact.

There are 2 types of Authoritative Precedents:


Absolute:

With respect to Absolutely authoritative Precedents, they Judges must abide by it regardless of whether they support them or not. They are qualified for implied compliance.

Conditional

In the case of conditional authoritative Precedents, the Court can ignore them under particular conditions. Generally, it is mandatory however under extraordinary state of affairs, it can be dismissed.

Persuasive Precedents

A persuasive Precedent is one that the Judges though not under any obligation to follow, and will take into consideration while making a decision. It acts as a guiding force and helps the Judge to reach a conclusion. They don’t have any legal power or impact on themselves. The Persuasive Precedents is used as a reference and it depends on the Judge solely whether to follow them or not.


Original Precedents

Original Precedents makes the law. These precedents are for the most part created when no previous reference is existing for a specific source of law. The adjudicators go to a relation when they need to shape unique points of reference.


Declaratory Precedents

As per Salmond, a declaratory precedent is simply the utilization of an already prevailing law. Similar to an original Precedent, a declaratory Precedent is a good source of law.

Conclusion

Precedents work like a beacon to all courts. Precedents bring conviction in law. It assists lower court judges in applying the law accurately. A few times the judges may defend their decisions with the assistance of the Precedents. While statutes made by the legislature set out the overall standards to be applied in the settling of disputes, the final interpretation of those principles is done by the courts. The principle of Precedents formulates on the rulings of courts, normally binding on the subordinate courts in cases where the facts and issues are similar or indistinguishable. Though the major advantage of precedents is that it is binding, which might block the advancement of law which is vital with changes in the society the court needs to keep the harmony between the need for conviction and progression and the wish for development and improvement of the law.

For more notes on Jurisprudence, click here.


[1] The Elementary Principles of Jurisprudence

[2] AIR 1988 MP 191

[3] (1991) 4 SCC 139

[4] AIR 1993, SC 43

[5] Satish Kumar Gupta v. State of Haryana, AIR 2017 SC 2072

[6] Constitution of India, 1950

[7] Ballabhadas Mathurdas Lakhani v. Municipal committee, Malkapur (1970) 2 SCC 267

[8] A.S Gauraya V. S.N Thakur, (1986) 2 SCC 709

[9] Thiru K.N. Rajgopal v. Thiru M. Karunanidhi, (1972) 4 SCC 733

[10] Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., AIR 1954 SC 119

[11] AIR 1965 SC 845, 855

[12] Sambhu Nath Sarkar v. State of W.B., (1973) 1 SCC 856

[13] Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, 740-43

[14] (2011) 7 SCC 639, 679

[15] Pillani Investment Corpn. Ltd. v. ITO, (1972) 1 SCC 122


Author- Abhilasha Agarwal (PES University)

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