History of Precedent

Indian law is largely based on English common law because of the long period of British
colony influence during the British raj. Precedents became a source of law only during the
British rule in India. The government of India act 1935 established a federal court and Privy
Council whose decisions were binding on all the other courts in the country and this was the
beginning of using precedents in making judgments, soon with passage of time precedents
acquired a lot of importance.

Meaning of precedent: a precedent is an event or an action that has occurred earlier and
acts as a guide for similar situations. According to Bentham precedents are judge made
laws. Any particular precedent establishes a principle or a rule that is followed while taking
similar decisions.

Definition:
According to black's law dictionary:
Rule of law established for the first time by a court for a particular type of case and there
after referred to deciding similar cases.[1]

According to Keeton:

A judicial precedent is judicial to which authority has in some measure been attached.[2]

Introduction
There are many sources from which we derive what we know to be as law.
Law in layman terms is nothing but a set of rules and regulations that we as
a society agree to follow so that we do not infringe on the rights of others
and can safeguard our own rights. The right to exercise one’s right stops
when it infringes upon the right of another. The insecurity that is felt among
people once the concept of property and ownership came in was done away
with the help of law that placed three organs; the legislature to make law,
the executive to implement it and the judiciary to adjudicate on matters.
These organs function in tandem and are required to not interfere in the
fields that are carved for another organ. While interference can be natural to
hold checks and balances, such interference cannot be done with any
malafide intention.

Judicial precedents
A precedent is a principle or a rule that was declared or laid down in a
previous legal case. It is binding or advisory on tribunals and courts when a
similar case with similar facts arises before it. These are nothing but previous
legal decisions that have been taken by judges in similar cases in these
courts that provide an outline as to what must be held in similar cases that
arise before the court or similar cases that arise in lower courts or similar
cases that arise before a lesser bench. A lesser bench is when the number of
judges is lesser than those that decided the case that the new bench will be
basing their decision on. In the 18th century, the Government of India Act,
1935, held that decisions made in Federal courts and in the Privy Councils
would be binding on the courts during the reign of the British. Since the 18th
century, precedents have been a legal characteristic of the Indian legal
system and have helped many judges form decisions and reverse decisions
that later on were found to be arbitrary or mindless.

Types of precedents
1. Declaratory and Original: In declaratory precedents, the mere
application of a rule in a previous legal case is used. Original
precedents result in the creation of new laws. Here new laws are
created and applied. An example can be where we considered that
the power to amend the constitution was not restricted till it was
decided that limits must be placed on the same and that all laws in
the Ninth Schedule henceforth must also be tested against the basic
structure.
2. Persuasive: Here the precedent is not necessarily needed to be
followed. The judge will rely heavily on this case and take it into
consideration. It is not directly considered as a source of law but is
seen as a form of historical precedents. This is usually seen in High
Courts, where the judgements in one High Court can be considered
as persuasive precedents in another. This can be seen when similar
cases arise in various High Courts the verdict can be made by
relying upon judgments from other High Courts. They will not be
binding but will be persuasive and will act in favour of the litigating
party in whose favour the previous verdicts have been made.
3. Absolutely authoritative: In these cases, the verdict that has
been earlier must mandatorily be followed by the judge. Even if the
judge thinks that it is a wrong judgement they are required to follow
that precedent because of sheer numbers. This is usually seen in
cases where the bench is smaller than the bench that decided upon
the precedent that the judge is relying on. This is also possible in
cases of hierarchy, where certain courts have to rely on decisions
made by superior courts.
4. Conditionally authoritative: In this case, the precedents by a
general rule are considered authoritative but can be disregarded in
cases of the parties appearing before the Supreme Court. The
 decision can also be overturned. An example can be where we
considered that the power to amend the constitution was complete
till it was decided that limits must be placed on the same and that
all laws in the Ninth Schedule, henceforth must also be tested
against the basic structure.

Nature of judicial precedents

 They must be purely constitutive and not abrogative in nature.
Hence, while a judicial decision can make a law it cannot alter it.
 When there is a settled rule of law, the judge must adhere to the
same.
 A judge cannot substitute their opinions for the established rule of
law and make decisions based on what they think should be
happening, should have happened or could have happened.
 The function of the precedent is limited to supplying the vacancies
of the legal systems by filling up with new law the gaps that exist.

Importance
The primary function of the Judiciary is the settlement of disputes. Initially,
while adjudicating, the courts are guided by customs and their own sense of
justice. Later on, legislations become the main source of law and the Rule of
Law is what judges base their decisions on.

1. Inductive method– A great amount of reliance is placed upon the

decisions of the judges in this method. The judges look into
previously decided cases in the same or superior courts before
giving a final judgement, of a similar nature that have already been
adjudicated upon before. They consider general rules and principles
from the previous case and apply them on the cases before them.
They then decide accordingly. This is known as the Inductive
method.
2. Deductive method– In this method, a great amount of reliance is
placed on legislatures and the enacted statutes. It can be seen as a
kind of positivist approach but most judges are now free to interpret
the law in any way they see fit to favour justice, equity and good
conscience. In such a system, the cases are decided on the basis of
the enacted legislation and statute that are codified and the judges
decide cases on the basis of these statutes. Here the judges do not
decide on the basis of previously decided cases.
The factors that destroy the authority of the precedent:

1. A precedent ceases to be binding if statute or statutory rule inconsistent with it is

subsequently enacted, or if it is reversed or overruled by a higher court.
2. An authoritative judgment can discard the earlier decisions:
a) If the precedent decision was given in ignorance of law;
b) If the precedent decision is inconsistent with the decision of the higher court;
c) If the earlier decision is contrary to reason (i.e. unreasonable)[4]

Parts of a decision
Ratio decidendi
Ratio decidendi is taken from a Latin term which means reasons for decision. It includes
the rule or principle established and formulated by means of decision. The principle is
applicable in all future judgments that compose similar facts; ratio decidendi is binding on
all the lower courts of the country. The ratio or reasons for taking a decision are deduced
from the facts of the case and later applied in all the other cases, it forms the basis for
accepting a particular decision as precedent.

Obiter dictum
Obiter dictum is an opinion or a remark made by a judge which does not form a necessary
part of the court's decision.[5] Obiter dicta is a Latin term which means things said by the
way. Obiter dicta refer to certain opinions, ideas, examples, statements, observations, etc
that are made by the judge while taking the decisions. These opinions are not binding on all
the other courts while they are only persuasive in nature.

Advantages of judicial precedent

 Everyone dealing with a similar case is treated in a similar manner there is equality
and fairness of justice.
 It acts as guidelines to decide future cases.
 Precedents saves time and increases convenience as a question once decided is
settled and it saves the time and labour of judges and lawyers.
 Precedents help to prepare new statutory laws and adjust according to the changing
conditions of the society.
 Cases which makes them more practical.
 Binding precedent establish a rule that helps to maintain stability.
Disadvantages of precedent

 A precedent makes a lower court bound to follow it which sometimes forces it to

take lesser or harsher decisions then actually required.
 It is rigid to change a precedent once followed.
 There are many precedents regarding many cases and hence it makes it difficult to
implement the right precedent in the right case.
 When a case is distinguished it is not mandatory to follow a precedent.
 Some situations are not recognized under precedent as they are not brought into
account.

Conclusion
From the above discussion it can be inferred that precedents play a very important role in
filling the lacunas in law and various statues, it also increases the faith in judiciary and make
laws morally acceptable, it also brings certainty to law.

precedents are a very effective source of law as they are time efficient and also ensure
equal justice, but a good system needs to be developed with efficient and clear hierarchy of
court that properly defines the courts in various levels, India has adopted this system from
common law but lacks in its implementation because of many subordinate courts and a
large no. of cases registered, hence the hierarchy has to be more clear and proper record of
all the cases. We have to categorize the different courts available under certain categories
and specify exactly whose decision is binding on whom and maintain record of all the
decisions that are declared as precedents.

This system helps to interpret law and make flexible changes according to necessity and
changing requirements.