Precedent and the doctrine of stare decisis

Legal methods Assignment

Submitted b:- Submitted to:-

Sahil Varshney & Dr. Shabana Shabnam

Akash Chandrayan

B.A.LL.B. (Hons.) S/F, 3rd Semester

F/O of Law, Jamia Millia Islamia.

2019-20
 Acknowledgement

It is not possible to prepare a project report without the assistance and encouragement of other
people. This one is certainly no exception. On the very outset of this project we would like to
extend our sincere and heartful obligation towards all the personages who helped us in this
endeavor. We would like to express our special thanks of gratitude to Dr. Shabana Shabnam who
gave us the golden opportunity to this wonderful project ‘Custom and Legislation as the sources
of law’. It helped us in doing a lot of research through which we came to know about so many
new and important things.

We would also like to thank our parents for their moral and financial support for this project.
 Content

1) ............................ Introduction

2) …............................. Kinds of Precedents

3) ................................ Ratio decidendi and Obiter dicta

4) ................................ Stare decisis

5) ................................ The mechanisms of precedential effect

6) ................................ Conclusion
 Introduction

Judicial precedents are among one of the important sources of law. According to Salmond: “The
great body of the unwritten law is almost entirely the product of outside cases, accumulated in an
immense series of reports extending backward with scarcely a break to the reign of Edward the
First at the close of the 13th century...In practice.”1 Precedent in law, a judgment or decision of a
court that is cited in a subsequent dispute as an example or analogy to justify deciding a similar
case or point of law in the same manner. Common law and equity, as found in English and
American legal systems, rely strongly on the body of established precedents, although in the
original development of equity the court theoretically had freedom from precedent. At the end of
the 19th century, the principle of “stare decisis”, a Latin term meaning, “let the decision stand”
became rigidly accepted in England. In the United States the principle of precedent is strong,
though higher courts particularly the Supreme Court of the United States may review and
overturn earlier precedents.2 However, there are some writers who are of the view that judicial
precedent is not a source of law. It is merely evidence of customary law. Savigny belongs to this
school of thought.

Every developed legal system possesses a judicial organ. The main function of the judicial organ
is to adjudicate the rights and obligations of the citizens. In the beginning, in this adjudication,
the courts are guided by customs and their own sense of justice. As society progresses,
legislation becomes the main source of law and the judges decide cases according to it. Even at
this stage, the judges perform some creative function. In the cases of the first impression, in the
matters of interpretation, or in filling up any lacuna in the law made by legislation the judges, to
some extent, depend on their sense of right and wrong and in doing so, they adopt the law to the
changed conditions.

Kinds of Precedents:-

(1) Authoritative and Persuasive:

According to Salmond, an authoritative precedent is one which judges must follow whether they
approve of it or not. A persuasive precedent is one which the judges are under no obligation to
follow but which they will take into consideration and to which they will attach great weight as it
seems to them to deserve. Authoritative precedents are the legal sources of law and persuasive
precedents are merely historical. Authoritative precedents establish law in pursuance of definite
rule of law which confers upon them that effect. If persuasive precedents succeed in establishing

1
V.D Mahajan, Jurisprudence & Legal Theory 191 (Eastern Book Company, Lucknow, 5th Edn. 2018)
2
Precedent, available at :https//www.Britannica.com/Topic/Precedent (Last visited on April 11, 2018)
law at all, they do so indirectly by serving as the historical ground of some later authoritative
precedent. They do not have any legal force or effect in themselves. The authoritative precedents
must be followed by the judges whether they approve of them or not. The persuasive precedents
can merely persuade the judge but it is up to the judge to follow them or not.

The authoritative precedents in England are the decisions of the superior courts of justice.
Examples of persuasive precedents are the foreign judgments, especially those of American
courts, Canadian courts, Australian courts, Irish courts, etc., the decisions of superior courts in
other parts of the British Empire, the judgments of the Privy Council and the judicial dicta. To
quote the Court of Appeal: "We are not bound by its authority, but we need hardly say that we
should treat any decision of that tribunal with the greatest respect and rejoice if we quite agree
with it."

In Attorney General v. Dean and Canons of Windsor, Lord Campbell observed: "Observations
made by members of the House beyond the ratio decidendi which is propounded and acted upon
in giving judgment, although they may be entitled to respect, are only to be followed insofar as
they may be considered agreeable to sound reason and to prior authorities."

(2) Absolute and Conditional Precedents:

Authoritative precedents are of two kinds, absolute and conditional. In the case of absolutely
authoritative precedents, they have to be followed by the judges even if they do not approve of
them. They are entitled to implicit obedience. In the case of authoritative precedents having a
conditional authority, the courts can disregard them under certain circumstances. Ordinarily, they
are binding but under special circumstances, they can be disregarded. The court is entitled to do
so if the decision is a wrong one. The decision must be contrary to law and reason. It is contrary
to law when there is already in existence an established rule of law on the point and the decision
does not follow it. When a law on a point is already settled, the only duty of the judge is to
declare it and apply it. However, when the law is not settled, the judge can make law for the
occasion. But while doing so, it is his duty to follow reason. Unreasonableness is one of the vices
of a precedent. While overruling conditional authoritative precedents, the courts must not run the
risk of making the law uncertain. Certainty of law is as important as justice itself.

According to Lord Eltom: "It is better that the law should be certain than that every judge
speculate upon importance of it."A conditional precedent can be disregarded either by dissenting
or by overruling. In the case of overruling, the precedent overruled is authoritatively pronounced
to be wrong so that it cannot be followed by courts in the future. In this connection, Warrington,
L.J. observes: "The conclusion I draw is that in order that a case may be treated as overruled one
must find either a decision of a superior court inconsistent with that arrived at in the case in
question, or an expression of opinion on the part of that court as a whole that such case was
wrongly decided on its own facts and not merely that it ought not to be treated as an authority in
a case arising out of different facts." By dissenting, a court declines to follow the precedent and
lays down the law in a different sense. The conflict thus created can be resolved only by a
superior tribunal when an occasion arises. Till that is done, the law remains in a state of
uncertainty. In India, the decision of a single judge of a High Court is only conditionally
authoritative and may be dissented from by another single judge or it may be overruled by a
division bench. If one division bench dissents from another division bench, the procedure to be
adopted is as follows: "While a judge of a High Court sitting alone is not bound on a question of
law by the decision of another judge sitting alone, this principle goes on further. The division
bench is the final court of appeal in an Indian High Court unless the case is referred to a full
bench, and one division bench should regard itself bound by the decision of another division
bench on a question of law. In England where there is the Court of Appeal, the divisional courts
follow the decisions of other divisional courts on the ground of judicial comity. If a division
bench does not accept as correct the decision on a question of law of another division bench, the
only right and proper course to adopt is to refer the matter to a full bench for which the rules of
this court provide. If this course is not adopted the courts subordinate to the court are left without
guidance."3

(3) Declaratory and Original Precedents:

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.
In the case of a declaratory precedent, the rule is applied because it is already law. In the case of
an original precedent, it is law for the future because it is now applied. In the case of advanced
countries, declaratory precedents are more numerous. The number of original precedents is small
but their importance is very great. They alone develop the law of the country. They serve as good
evidence of law for the future. A declaratory precedent is as good a source of law as an original
precedent. The legal authority of both is exactly the same. An original precedent is an authority
and source of new law but both original and declaratory precedents have their own value.

Ratio Decidendi and Obiter Dicta:-

The ratio decidendi can be understood as those statements of law which are based on the facts as
found and upon which the decision is based. Only these are binding, all other statements are
considered superfluous, and referred to as obiter dicta i.e. something said by the way. This does
not form part of the binding precedent, and in theory the obiter may have only persuasive
authority. Obiter dictum, Latin phrase meaning “that which is said in passing,” an incidental
statement. 4Specifically, in law, it refers to a passage in a judicial opinion which is not necessary
for the decision of the case before the court. Such statements lack the force of precedent but may
nevertheless be significant. There are two steps involved in the ascertainment of ratio decidendi.

3
Seshamma v. Venkata Narasimha Rao, (1940) I MLJ 400 (FB)
4
Obiter Dictum, available at :https//www.Britannica.com/topic/ObiterDictum (Last visited on March 05, 2018)
First, it is necessary to determine the facts of the case as seen by the judge; secondly, it is
necessary to discover which of those facts were treated as material by the judge.

When the highest Court of judicature in a country makes a rule, while deciding a case basing on
that rule, that case is accepted as a valid Precedent. The apex court furnishes the various reasons
on which the decision was given in that particular case. Such rule or ruling is called 'ratio
decidendi'. In other words, ratio decidendi is a principal of law made by the judge to decide the
problem. Obiter dicta are observations made by the Judge, which are not essential for reaching
the decision. when a decision is said to have binding force in subsequent cases, it does not mean
to say that the whole decision is binding. Those statements, in previous decision, which
constitute the ratio decidendi are binding. While obiter dicta has no binding force. Other meaning
of ratio decidendi is 'the rule of law which others regard as being of binding authority. Obiter
dicta, on the other hand are 'dictums' given by the way, and binding only on the parties, and do
not amount to law and hence not binding on future generations. However, there are exceptions to
this rule that even 'obiter dicta' of the Supreme Court are having binding force as law.

For the purpose of application of 'Ratio decidendi', the facts of both cases previous and present,
must be identical, material and relevant. Otherwise, ratio decidendi is not applicable in the
subsequent case.

Stare decisis:-

It means to stand by things decided. In other words stare decisis means to abide by the former
precedents where the same points come again in litigation, as well as to keep the scale of justice
even and steady and not liable to waver with every judge's opinion, as also, because the law in
that case being solemnly declared and determined, what before was uncertain and perhaps
indifferent is now a permanent rule which is not in the breast of any subsequent judge to alter or
swerve according to his private sentiments. This is because he in India is to uphold the
Constitution and in England he is to decide according to the known laws and customs of the land.
He in England is not to pronounce a new law but to maintain and expound the old one. This is
known as the principle of stare decisis or the binding force of precedent. The principle enables a
judge to utilise the wisdom of his predecessors, it sustains uniformity of application of law of
similar cases and it makes the law predictable. However, it makes the law inflexible and rigid
which only the principles of equity can soften. The House of Lords has since 1966 asserted that
in exceptional cases it will refuse to follow its own precedents. In India, in Bengal Immunity Co.
Ltd. v. State of Bihar5 an important preliminary question arising for the first time came before
the court whether the court was bound by its previous decision or was free to depart from it. The
court viewed judgment of English, American and of the High Court of Australia and came to the

5
AIR 1955 SC 661: (1955) 2 SCR 603
conclusion that there is nothing in the Constitution which prevents the Supreme Court from
departing from a previous decision if the court is convinced of its error and its baneful effect. But
frequent exercise of this power would tend to make the law uncertain and introduce confusion.
For this reason if to do so is in the interest of the public or for public good or there are any other
valid and compelling reasons, the court would not hesitate to exercise this power." Supreme
Court of India in 1980 through Bhagwati J in Minerva Mills Ltd. 6 reiterated that "the doctrine of
stare decisis should not be regarded as a rigid and inevitable doctrine which must be applied at
the cost of justice.

There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity". This
view finds support in D.S. Nakara7 case wherein Mineral Mills case and Randhir Singh case8
were relied on by the Supreme Court. The court observed: Every new norm of socioeconomic
justice, every new measure of social justice is commenced for the first time at some point of
history. If at that time it is rejected as being without a precedent, the law as an instrument of
social engineering would have long since been dead and no tears would have been shed. To be
origin to ethical and moral code. Is there any doubt that they have become the integral and
inseparable parts of rule of law of which any civilised society is proud? Can anyone be bold
enough to assert that ethics and morality are outside the field of legal formulations?
Socioeconomic justice stems from concept of social morality coupled with abhorrence for
economic exploitation. And the advancing society converts in course of time moral and ethical
code into enforceable legal formulations. Overemphasis on precedent furnishes an
insurmountable road block to the onward march towards promised millennium. An overdose of
precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied.
Therefore, the absence of a precedent on this point need not deter us at all. We are all the more
happy for the chance of scribbling on a clean slate.pragmatic is not to be unconstitutional. In its
onward march, law as an institution ushers in social economic justice. In fact, social security in
old age commenced itself in earlier stages as a moral concept but in course of time it acquired
legal connotation. The rules of natural justice owed their

The Mechanisms of Precedential Effect:-

Precedent might affect Supreme Court decision making in a number of ways. For this discussion
we concentrate on two possible mechanisms of precedential effect. The first conception, sees
precedent as the major explanation of judicial decisions; the second requires us to make
modifications in this conventional conception, for it regards precedent as a constraint on justices
acting on their personal preferences. The first mechanism is that precedent provides the primary
reason why justices make the decisions that they do. On this account justices use the rules that
are established by previous court cases as the basis for their subsequent judicial decisions. There

6
(1980) 3 SCC 625, 681
7
AIR 1983 SC 130
8
(1982) 1 SCC 618
are two possible interpretations of this mechanism. On one interpretation precedent actually
determines the preferences of the justices. If precedent has such an effect, we would anticipate
finding the following patterns of behaviour: (1) if justices' preferences in the precedent-setting
case matched the majority opinion of the Court, justices in subsequent cases will continue to
follow the precedent because of its status as a precedent or (2) if, in the original case, justices'
preferences conflicted with the majority opinion on the case, then, in subsequent cases, justices
will adopt the precedent as their own preference and adjust their decisions accordingly. On the
second interpretation of this mechanism, precedent does not actually determine justices'
preferences, but it overrides such preferences when the two diverge. That is, if justices'
preferences dictate that they vote one way, but precedent dictates that they vote the other way,
justices who believe in the importance of precedent should follow precedent and not their
preference. They are correct in noting that this is a problem of behavioural equivalence: because
both the legal model and the attitudinal approach would predict the same behaviour in these sorts
of cases, they have no empirical test for distinguishing between the two approaches. Given the
equivalence of the predictions, there is no reason to reject the legal model in favour of the
attitudinal model for the cases. What they do test is the effect of precedent on justices whose
preferences in the original cases do not match the precedent established in those cases. And this
is an important area of analysis: if precedent matters, then it ought to affect the subsequent
decisions of members of the Court. By law we refer to the substantive rules of behaviour that are
created by courts through their holdings and justificatory arguments. If legal rules become the
primary focus for analysing the effect of precedent on judicial decision making, then the
possibilities for such effects expand beyond the determination of judicial preferences. And such
effects cannot be adequately tested through a narrow focus on the disposition of cases.9

Conclusion:-

The rule of precedent is a fundamentally important legal institution, if judgments are a source of
law, judges are a source of power and authority. The rule of precedent is the instrument through
which that power is exercised in common law countries. It is thus not just of legal, but also of
political importance. Accordingly it comes as no surprise that the mysteries of judicial law-
making, and of the rule of precedent in particular, continue to attract attention and much intense
reflection from prominent judges, academic lawyers and legal philosophers. The jurisprudential
debate about the nature of the judicial process may one day tell us all there is to know about the
rule of precedent, but, in the meantime, we must seek to advance our understanding of the
doctrine at a technical level. The fruits of such efforts will, perhaps, assist legal philosophers in
their endeavours. Also, it is often noted that doctrine of precedent makes judicial process more
efficient, because it lets judges not to reconsider all over again questions of law which have

9
Lee Epstein & Jack Knight, The norm of stare decisis, 40 APJS (1996)
already been decided. The doctrine of precedent can be seen as a restraint on the development of
law due to its strict application. However, of using precedent provides certainty in the law. As
cases with sufficiently similar material facts are bound by past decisions, it provides an idea of
how the case will be decided.
 Bibliography

 V.D Mahajan, Jurisprudence & Legal Theory (Eastern Book Company, Lucknow, 5th
Edn. 2018)
 Sumeet Malik, Indian Legal & Constitutional History (Eastern Book Company,
Lucknow, 11th Edn. 2017)
 B.N. Mani Tripathi, Jurisprudence The legal theory (Allahabad Law Agency, Faridabad,
19th Edn. 2017)
 Precedent, available at :https//www.Britannica.com
 Lee Epstein & Jack Knight, The Norm of Stare decisis, 40 AJPS (1996)