Arsh Kaul

SEC C

SEM XVIII

I.D. NO- 1820181975

Answer 1 :

These days, precedent serves as the major source of law; it tends to reinforce the country's
laws and judicial system, as well as assist us in improving the country's legal system and
tailoring it to the needs of the times. However, the main issue with its execution is the lack of
sufficient records for its successful implementation, which may be improved to improve the
situation and make the system more adaptable.

History of Priority

Because of the lengthy era of British colonial dominance under the British raj, Indian law is
substantially based on English common law. Only under the British reign in India did
precedents become a source of law. The Government of India Act of 1935 established a
federal court and a Privy Council whose judgements were binding on all other courts in the
country, and this was the beginning of precedents being used in determining decisions. As
time passed, precedents became increasingly important.

The definition of precedent is an occurrence or activity that occurred previously and serves as
a reference for comparable situations. Precedents, according to Bentham, are laws created
by judges. Any precedent creates a concept or norm to be followed when making comparable
judgments in the future.

Definition:
The black's legal dictionary says:

A rule of law is a set of rules established by a court for the first time in a certain type of case
and then applied to similar instances.

According to Keeton's assertions:

A judicial precedent is one to which authority has been attached in some way.

The theory of legal precedent is referred to as stare decisis in Latin. The term stare decisis
refers to courts using previous or prior instances as a reference to make future decisions; it
literally means "to stand by what has been determined." This notion is referenced in the
constitution's article 141. It's employed in every court and in every legal situation.

Article 141 of the Constitution reads as follows:

Article 141 of the Indian Constitution of 1950 specifically incorporates the notion of
precedent. Article 141 states that the Supreme Court's judgements are binding on all courts
within India's borders. Despite the lack of an express rule, the decisions of a High Court are
binding on all lower courts within the High Court's geographical authority. A higher Bench's
ruling is also binding on the lower Bench. All courts refer to all other courts in the article,
with the exception of the Supreme Court, which is not bound by its rulings.

Precedents of several kinds

 Binding precedents, often known as authoritative precedents, are precedents that are
legally binding. These precedents must be followed by a lower court or other comparable
court after a decision is rendered, whether they agree with it or not.

 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 up to the court to determine whether or
not to consider it.

 When the court has never made a ruling in a matter and must rely on its own discretion to
make a result, an original precedent develops. It aids in the creation of new legislation.

 Declaratory precedents: In a specific instance, a declaratory precedent is the application

of existing precedent. A declarative precedent entails announcing and putting into
operation an existing law; it does not assist in the creation of new legislation.

Factors that undermine precedent's power include:

If a future legislation or statutory rule contradicts the precedent, or if it is reversed or

overruled by a higher court, the precedent is no longer binding.

An authoritative decision can overturn previous decisions:

a) If the previous judgment was made in the absence of legal knowledge;

b) If the precedent decision conflicts with the higher court's ruling;

c) If the previous decision is irrational.

Various aspects of a choice

RATIO DECENDI

The term "ratio decidendi" comes from a Latin phrase that means "reasons for decision." It
covers any rule or concept that has been formed and expressed by a judgment. The concept
applies to all future judgements involving comparable facts, and ratio decidendi is obligatory
on all of the country's inferior courts. The ratio, or reasoning for making a judgment, is
derived from the facts of the case and then applied to all subsequent instances; it serves as the
foundation for adopting a specific decision as precedent.

OBITER DICTUM

Obiter dictum is a judge's opinion or statement that does not have to be included in the court's
judgement.

Obiter dicta is a Latin phrase that refers to anything stated on the spur of the moment. Obiter
dicta refers to the judge's thoughts, ideas, examples, utterances, observations, and so on when
making judgements. These opinions are only persuasive in nature and are not binding on all
other courts.
Judicial precedent has a number of advantages.

There is equity and fairness of justice in that everyone dealing with a comparable situation is
dealt in the same way.

It serves as a roadmap for deciding future cases. Precedents save time and make things easier
because once a matter is determined, it is settled, and it saves judges and attorneys time and
effort.

Precedents aid in the preparation of new statutory laws and their adaptation to changing
societal situations.Cases that make them more useful.A binding precedent establishes a rule
that aids in the preservation of stability.

Precedent's disadvantages

A precedent binds a lower court to follow it, forcing it to issue judgements that are less or
more severe than necessary .It is difficult to reverse a precedent that has already been
established. There are a lot of precedents for a lot of instances, which makes it difficult to
apply the proper precedent to the right case. It is not necessary to follow a precedent when a
case is distinct.

Opinions of many kinds

Dissenting Viewpoint
A dissenting opinion is one authored by a justice who did not vote in favor of the majority.
The dissenting opinion explains why the dissenting justice disagrees with the majority's
decision and reasoning. The argument in the dissenting opinion is not binding precedent
because it reflects the minority perspective. The dissenting opinion, on the other hand,
provides vital insight into the thinking process behind a case and articulates reasons that may
be revisited in future court decisions.

Opinions that are in agreement

A concurring opinion agrees with the majority opinion's conclusion but not necessarily with
the majority opinion's rationale. A concurring justice might use a concurring opinion to
elaborate on a case's legal rationale or to present a whole new legal justification for the result.

In the United States, precedent is used.

The common law system is used in state courts and to a lesser extent in lower courts in the
United States. The necessity that courts respect the decisions of higher level courts within the
same jurisdiction is the fundamental concept of common law. This tradition of stare decisis
has resulted in a body of law that is fairly predictable and consistent. The judicial system's
hierarchy is well-defined. The federal court system is divided into three levels, with the
United States District Courts serving as trial courts, the United States Court of Appeals
serving as the first level of appeal, and the United States Supreme Court serving as the last
arbitrator of the law. Both the judge and the jury, as well as their separate functions, are part
of the system.
Judge-made laws, also known as case laws, are referred to as common law. These case laws
might be based on constitutional provisions, legislative provisions, or pure decisional case
laws. As a result, case laws are fully documented and accessible to even the most
inexperienced researcher. The precedent system is also quite flexible, since the United States
Supreme Court has overturned several of its decisions. For example, about 130 of its
decisions were overturned between 1946 and 1992. As a result, the system ensures that the
common law is effectively implemented through the concept of stare decisis and a flexible
framework.

As examples of precedents, consider the following:

State of Rajasthan vs. Vishakha and others (air 1997 sc 3011)

It is considered as a watershed moment in Indian history since it was the first of its kind to
ensure women's safety at work. The lawsuit stems from the terrible gang rape of Miss
Bhanwari Devi, a social worker who opposed child marriage and was savagely gang raped by
upper-class males. Despite filing a lawsuit, she was unable to obtain justice. Bhanwari Devi's
determination prompted a group of women and non-governmental organizations (NGOs) to
launch a public interest lawsuit (PIL) under the Vishakha platform for infringement of
articles 14, 15, 19, 1(g), and 21. The vishakha guidelines to protect women against sexual
harassment at work were laid down by the bench of J.S Verma, Sujata Manohar, and B.N
Kripal in their judgment, which was later transformed into the sexual harassment of women
at workplace act, 2013, which enabled one of the most significant victories for women.

Right to Food: Peoples Union for Civil Liberties vs. Union of India, 2001:

As a result of this lawsuit, India became the first country to enshrine the right to food in its
constitution. The case is about using an effective PDS system to provide food to a starving
populace. Outside of Jaipur, the Food Corporation of India (FCI) gowdowns were
overflowing and rotten, and villagers nearby were eating food on a rotational basis. The
government also had 40 million tonnes of excess buffer stock, prompting the PUCL of
Rajasthan to file a case, and the judgment introduced various acts such as midday meals,
integrated child development system, annapurna scheme, and many more to protect the poor
and provide food to them.

Conclusion

From the foregoing, it can be deduced that precedents serve a critical role in filling in the
gaps in the law and numerous statutes, as well as increasing trust in the court and making
laws ethically acceptable. They also provide clarity to the law.

Precedents are a very effective source of law because they are time efficient and ensure equal
justice; however, a good system must be developed with an efficient and clear hierarchy of
courts that properly defines the courts in various levels; India has adopted this system from
common law but lacks in its implementation due to many subordinate courts and a large
number of cases registered; thus, the hierarchy must be more clear and proper record of all
cases. We must organize the many courts that are available into specific categories, clarify
who's judgment is binding on whom, and keep track of all precedent-setting rulings.

This approach aids in the interpretation of the law and the implementation of flexible
adjustments in response to necessity and changing requirements.
Answer 2

Both the phrases law and morality are excessively ambiguous. Many jurists and philosophers
from ancient Greece to the present day have attempted to define these concepts. These two
phrases cover a large area. The lack of a precise meaning for these phrases might be due to
the fact that they are both dynamic in nature, with the meaning and value of these terms
shifting with time, context, and location.

What is the legal framework? In its most literal sense, law is an order issued by a sovereign
authority that specifies what sort of behavior is required of individuals, as well as what they
should and should not do. Law assists a state in establishing adequate order in society as well
as protecting individuals' rights. In a civilized community, the law may be defined as a
system of rules and regulations that govern human behavior. Law is a tool for enforcing the
rule of law. Law was once thought to be a divinely inspired system of principles that
governed human behavior.

Law has been defined in numerous ways by modern jurists. According to Salmond, law is
"the collection of principles recognized and used by the state for the administration of
justice."

"Legal is classified not as an aim but as a prescribed means, as an instrument of coercion to

which no political or ethical value adheres as such, law machinery whose worth derives
rather from some end which transcends the law," Kelson wrote.
All of the definitions have components in common, such as a law-making authority, a set of
rules and regulations, an instrument of justice, citizen rights protection, a social organization
technique, and the core principle of law is that what you do should be approved by the social
group you belong to.

What exactly is morality? Morality, to put it simply, is the distinction between what is
wrong and what is right. Morality is a notion that distinguishes between good and wrong.
And morality is a broad concept; various people might have different moral principles by
which they assess behavior. Morality may be influenced by a variety of factors, including
your religion, culture, society, community, and family values. As a result, morality is
subjective in nature, with differing moral standards held by different people. Female genital
mutilation, for example, may go against the moral principles of some groups while yet being
in accordance with the moral values of others. As a result, morality does not have the same
status as the law. Morality is a personal belief held by an individual in line with the social
group to which he belongs. Because man is a social animal who cannot live in isolation, this
can be said to be the reason for the foundation of moral principles, because if you live in a
social group, your behavior should be accepted, so this is where morality comes into play;
however, if you live in isolation, you are not required to check your conduct against morality
parameters.

The relationship between morality and the law.

Both law and morality can overlap at times; they cannot be mutually exclusive. For example,
something can be against the law yet moral, or something against morals can be legal.

For example, if a starving desperate person took a piece of bread, stealing is against the law,
but if we look at the case from a moral standpoint, it is acceptable since the person was
attempting to meet his essential need to keep his soul body together.

Another example is when a government refuses to allow refugees to take asylum in that
country in order to defend its inhabitants' rights and passes a legislation to that effect. This is
against morality because we should aid the poor, but it is legal.
The law may also be used to enforce moral ideals and principles. For example, every person
should pay a tax to help the state thrive, but if there is no legislation in place, there will be
fewer taxpayers.

For example, when driving on the road, we should follow traffic laws to safeguard those who
are also traveling with us; nevertheless, if there is no penalty, no one will follow these rules
only because of moral ideals.

Two theories, law positivism theory and natural law theory, can explain the relationship
between law and morality.

Natural law philosophy holds that law and morality are inextricably linked. Human law,
according to natural law theorists, is founded on the moral principle rather than any human-
made principles.

Natural law is a word used to describe a set of rules that apply to Under natural theory, the
status of law is determined not only by deeds, but also by religion, custom, and ethics. This
theory discusses what should be. Natural law is self-evident and does not necessitate the
imposition of any authority.

Positivism legal theory: according to this idea, a sovereign authority's law is common. A
command of human beings for other human beings in which the previous one is more
powerful and strong than the other and enjoys the power status and authority of the lawmaker
is unquestionable, and it will decide what is right and wrong according to the matter of law,
and if one does not follow the law, there will be a punishment. According to Jeremy
Bentham, the first positivist, legislation should be founded on human experiences. Positive
legislation may provide a norm for what activities are needed and what behaviors are banned.

The battle between law and morality may be traced back in history.

R vs. Stephens and Dudley

[Law and morals - the law does not recognize necessity as a defense]

Three sailors and a cabin boy were shipwrecked and stranded 1600 miles from land on an
open boat. After eight days without food and six days without water, DD concluded that the
only way for them to survive was to murder and devour the cabin kid, which they did. They
were apprehended by a passing ship four days later and convicted of murder when they
returned to England.

Held: Necessity can never be used as a justification for murder. Their death sentence was
eventually reduced to six months in jail.

Oppenheimer v Cattermole (guilty) [law and morals- an unjust law should take precedence
over morality]

Mr. Oppenheimer was a German national who worked as a teacher in his own country. He
was held at the Dachau concentration camp for a brief period. He then moved to Britain and
became a British subject. German authorities were adamant about compensating Jewish
religious community personnel. Mr. Oppenheimer received that pension as well as a second
pension when he reached the age of 65.

The question now is whether he is required to pay tax on his benefits to the British
government.

If he is the sole British citizen, he must pay; but, if he is also a German citizen, he may be
free from this obligation. The case was initially decided by the Special Commissioners for
Income Tax in the United Kingdom.

And he lost his German citizenship and was obligated to pay taxes, according to German
legislation from 1913, "when there were no complexities of the nations being at war, which
specified that a German lost their German nationality if they gained a foreign nationality
without authorization."

Laws are often founded on a society's moral beliefs. The following are some points of
differentiation to consider:

(a) Laws govern exterior human behavior, but morality governs only interior behavior.

(b) While laws are universal, morality is not.

(c) Laws are clear and exact, but morality is fluid.

(d) Laws are enforced by the state's coercive authority; morality is merely supported by
public opinion or individual conscience.

(e) Laws are studied under the heading of Jurisprudence, whereas morals is studied under the
heading of Ethics.

Law and liberty

Human freedom is implied by both law and morality. Clearly, morality cannot exist without
freedom. But the same may be said of law: if it were enforced mechanically rather than
voluntarily, mankind would be nothing more than robots. It is an exhortation to free humans
about what they are expected to do if they seek to live freely and responsibly in society; and it
typically brings with it a consequence or punishment to be inflicted on whoever is found to
have behaved against prescribed standards of behavior, such as the law of physics. A well
understood just law appeals to liberty.

Nonetheless, one of the most widely held liberal beliefs is that law is inherently hostile to
liberty. According to Servais Pinckaers, Catholic moralists have been influenced by this
attitude for many centuries, which has led to the anti-law perspective of most current moral
theology as a reaction. Law and liberty were viewed as mutually exclusive in this perspective
"Two opposing poles, law pressing itself on freedom with the force of duty and law imposing
itself on freedom with the consequence of limitation. As two proprietors in a struggle over the
area of human acts, freedom and law confronted one other. "Law controls this act, freedom
rules that one," moralists used to say. Moralists were originally the moral law's advocates,
and their purpose was to explain conscience how to apply it in a specific situation, in a "case
of conscience." Today, there is a significant inclination to flip the roles; moralists
increasingly see themselves as protectors of human freedom and conscience "[as if it were
against the law]

Justice and the rule of law

Morality, not law, can control the purely internal world of personal behaviour. External
activities are linked to human or civil law precisely because they infringe on the rights or
legitimate conduct of others. As a result, law and justice must be linked. The primary concept
of fairness must be applied to the management of interpersonal relations: "to everyone his
due." As a result, the fundamental question of what each person is owed emerges, as does the
subsequent topic of human rights.

To each their own. Each of us owes something to the other. This is what it means to be equal
before the law. "The honor of law and of jurists is the ability to give their due not only to a
relative, friend, citizen, or fellow believer, but also to every human being just because he is a
person, simply because justice requires it. If there is an expression of the human race's unity
and equality among all human beings, it is appropriately offered by the law, which cannot
exclude anybody from its scope without jeopardizing its unique identity "..

Even for those who believe that law and liberty are diametrically opposed, the notion of law
is fundamentally linked to the concept of justice. So many current protests in the name of
freedom are based on the old precept lex iniusta non est lex (an unjust law is not a law).
"Because this law is discriminatory, it is unjust." However, because justice is a moral notion,
these protests highlight the inherent relationship between law and morality: "There is another
fundamental link between the virtues and law, for understanding how to implement the law is
only feasible for someone who possesses the virtue of justice."
'The law must adapt to "life situations,"' says the author. Very nice, but not in the sense that
the condition must be accepted as the norm. Justice must remain the rule, and the law must
occasionally reclaim territory for justice.

Morality's Influence on Law

Law and morality interact, respond, and shape each other. Morals have infiltrated the fabric
of law in the guise of "justice," "equity," "good faith," and "conscience." Moral concerns play
a significant part in judicial lawmaking, the interpretation of legal precepts, and the exercise
of judicial discretion (as in the awarding of punishment). Morals act as a check on the
legislature's authority since it is impossible for the legislature to pass a legislation that is
wholly contrary to society's morals. Second, legislation alone cannot rule and govern all
human behavior and social connections. Morality governs a significant portion of them.
Several actions and relationships in the community's existence go quite efficiently without
the participation of the law. Morals ensure that they follow the rules. When it comes to legal
regulations, it is not just the legal punishment that ensures their observance; morality also
play a role. Morals, in this way, make the law better. 'In marriage, there is no need for law to
govern the connections of the husband and wife as long as love exists - but the solicitor walks
in through the door as love fades.'

Morality is becoming increasingly important.

The sociological method is now having an influence on the current era. This perspective is
more concerned with the goals that legislation must achieve. As a result, acknowledged
values, or morals (of course, modern-day morals), have become an extremely significant area
of study for successful lawmaking. Morals have a significant role in international law as well.
People have returned to morality as a result of the brutalities and immoral deeds committed
during World Wars, and attempts are being made to set norms and ideals that all nations must
adhere to. Perhaps no other justification for the Nuremberg Trials is as powerful as morality.
If the law is to stay effective and related to the people's lives, morality must be taken into
account.

The law and morals, as well as the contemporary situation

Even though we are in the twenty-first century, there are still certain instances where law and
morality are at odds, with law sometimes triumphing over morality and morality sometimes
triumphing over law.

1.Indian criminal code, section 377, and morals

Homosexuality is dealt with under Section 377 of the Indian criminal code of 1860. This
section makes all sexual acts that are not in accordance with nature a punishable offence with
a prescribed punishment. These acts include all nonvaginal or nonproductive sexual acts. As
a result of this section, members of the LGBT (lesbian, gay, bisexual, and transgender)
community face social discrimination because of their sexual orientation that differs from
what is commonly accepted. From a moral standpoint, every human being should be allowed
the same rights to choose how they wish to meet their needs. Law, on the other hand, speaks
in a different way; here, the notion of moral principle takes precedence.

Female genital mutilation (FGM) is a kind of female genital mutilation

Genital mutilation is practiced in India by the Dwoodi Bohra community, a Shia Muslim
minority that originated in Yemen and arrived in India in the 16th century.

The major motivation for this practice is to adhere to shariat.

This is a violation of moral standards. This technique is extremely risky, and it is always
carried out by an unskilled individual who lacks any medical knowledge; as a result of these
circumstances, the victims of this practice must endure bodily and emotional suffering.

The IPC and the pocso act make it illegal to touch female genital regions for any reason other
than medical. Something that is illegal cannot be a necessary practice; it is an affront to
women's dignity and privacy. This method is still practiced in India.

3.Halal nikah and morals

Halala is a phrase derived from the word "halal," which refers to something that is lawful and
legal. The Muslim community's personal law includes nikah halala. In this practice, if a
husband divorces his wife and then wishes to marry her again, he must first divorce her prior
spouse in order to be eligible to remarry her. After marrying another man and consummating
her marriage, the lady might marry her prior spouse after getting divorced from that
individual.

This type of behavior always favors male members of a society, and it should be challenged
for validity checks, as it goes against the basic moral standard.

4. Morality and refuges

It is a moral responsibility or according to moral standards to assist a poor person. Today,

certain nations in the world have more resources than others, while others have insufficient
resources. As a result, morality dictates that countries assist one another in such a crisis. But,
at the moment, a new image is emerging, with governments implementing laws prohibiting
refugees from entering the country. The argument provided is a threat to national security,
resource depletion, and so forth. For example, the United States government has prohibited
refuse from seven Islamic nations from entering the country.

5.National registration of citizens (NRC) and morality: In Assam, lakhs of Indians' names
have been removed from the NRC list. If these individuals are members of the declared
foreign (DF) category, they may lose their rightful citizenship as Indian nationals. On May 2,
2018, the NRC's State Coordinator issued a directive to all Deputy Commissioners of
Assam's separate districts, requesting that the names of Declared Foreigners (DFsiblings, )'s
sisters, and other family members be kept pending. In other words, if a person is proclaimed a
foreigner by a foreign tribunal, the names of his siblings and other family members will be
removed off the NRC list. Around one lakh (1,00,000) persons have been proclaimed aliens
since 1985. Approximately 20,000 Tribunal orders (mainly ex parte, or without hearing both
parties) have been overturned by various legal venues. However, there are still 80,000 people
classified as "foreigners." Assume that a so-called "foreigner" has four siblings on average.
That brings the total number of siblings to three lakh twenty thousand (3,20,000). This brings
the total number of persons to four lakh (4,00,000), including the proclaimed "foreigners."
Children and grandkids would be among the 4 lakh people's family members. On average,
each individual has at least six family members (a highly generous estimate given the greater
fertility rate among impoverished and uneducated people who have been labeled
"foreigners"), totaling nearly two million people! What will happen to the families of citizens
who have lived in their country for a long time and are suddenly labeled outsiders and
illegitimate? It is not acceptable to ask someone to leave a nation or their home after they
have settled successfully in their life and contributed to the growth of the country, but the law
views it differently, and it is illegitimate.

Conclusion

Human behavior is guided by moral principles or man-made legislation in any case. They
should be progressive in character and possess the ability to distinguish between good and
evil. Individuals' basic needs should not be impacted by any sort of legislation. The law is a
tool for efficiently enforcing moral standards. The moral is an internal phenomena, but the
law is outward; if someone does not follow morality in his action, there will be no
consequences; nevertheless, if someone disobeys the law, there will be consequences.