SNDT WOMEN’S UNIVERSITY

LAW SCHOOL, SANTACRUZ

SUBJECT: JUDICIAL PROCESS

SEMINAR TOPIC- LAW OF PRECEDENT

ACADEMIC YEAR: - 2021-22

NAME: TRUPTI SHRIKRISHNA DABKE.

CLASS: FIRST YEAR, LLM.

ROLL NO: 16

SUBMITTED TO: PRO. HASMUKH SHAH.

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Introduction

 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.
 A Precedent is a Statement of law found in the decision of a superior court, which decision
has to be followed by that Court and by the Courts inferior to it.

 Precedent means judgment or decision of a court of law cited as an authority for the legal
principle embodied in it.

Meaning-
 According to Gray, "Precedent covers everything said or done, which furnishes a rule for
subsequent practice."
 According to Salmond, "In a loose sense, it includes merely reported case law which may
be cited and followed by courts."
 In general judicial sense, it means the guidance or authority of past decisions for future
cases. Only such decisions as lay down some new rule or principle are called judicial
precedents.

Application of the Doctrine in India-

 The doctrine of precedent is expressly incorporated in India by Article 141 of the
Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court
are binding on all courts within the territory of India.
 Although there is no express provision, but by convention the decisions of a High Court
are binding on all lower courts within the territorial jurisdiction of that High Court.
Similarly, a decision of a higher Bench is binding on the lower Bench.
 In the article “all courts” refer to all the other courts except Supreme Court, the Supreme
Court is not bound by its decisions.

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Object:
 The main object of doctrine of precedent is that the law of land should be clear, certain &
consistent so that the Courts shall follow it without any hesitation.
 In Union of India vs. Raghubir singh1- It has been held that “the doctrine of binding
precedent has the merit of promoting a certainty and consistency in judicial decisions,
and enables the organic development of law, besides providing assurance to the
individual as to the consequence of transaction forming part of daily affairs. And
therefore the need of clear and consistent enunciation of legal principle in the decision of
a court.”

Nature of Precedent-
 Precedent makes new law. It is the function of a judge to make precedent, which binds
not only the parties before him, but future ones also.
 The power of precedents to make law is purely constitutive and in no degree
abrogative.in other words, judicial decisions may make law, but they cannot alter it.
Where there is a settled rule of law on any point, the judges have no authority to
substitute for it a law of their own making.
 Their legislative power is strictly limited to supplying the vacancies of the legal system,
to filling up with new law, the gaps which exist in the old, thus supplementing the
imperfectly developed body of legal principles.

Types of precedents-
1. Binding precedents: binding precedents are also known as authoritative precedents. These
precedents are bound to be followed by a lower court or other equivalent court once a
judgment is made whether they approve it or not. for e.g.
In the case of Vishaka v. State of Rajasthan2, the accused was alleged of the offence of
the brutal gang rape of a social worker. The three-bench judge of the Supreme Court laid
down relevant guidelines and norms as there was no enacted law related to effective

1
AIR1989SC1933
2
(1997) 6 SCC 241

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 enforcement of the basic human rights gender equality and also guarantee against sexual
harassment. The court observed that norms and guidelines should be followed in
workplaces in accordance with Article 141 of the Constitution. Further, the court has
stated that the guidelines were declared under Article 141 of the Indian Constitution and
were binding and enforceable in law, and suitable legislation accordingly occupied the
field.
2. Persuasive precedent: persuasive precedents include decisions taken by an inferior court
that a higher court or any other court is not obliged to follow. It depends on the court to
decide whether to consider it or not.
3. Original precedent: An original precedent arises when the court has never taken a
decision in a case and it has to use its own discretion to reach a conclusion. It helps to
create new law.
4. Declaratory precedents: A declaratory precedent is application of existing precedent in a
particular case. A declaratory precedent involves declaring an existing law and putting
into practice, hence it does not help in creating new law.

Doctrine of “Stare Decisis”-

 The origin of the doctrine of Stare Decisis (binding force of precedents) can be traced to
the practice of law reporting, i.e. reporting and publishing decision of the Court.
 Commenting on the doctrine the Supreme Court in Minerva Mills ltd. Vs. The Union of
India3, observed as follows:
 “Certainty and continuity are essential ingredients of the rule of law. Certainty in the
applicability of law would be considerably eroded, and suffer a serious set-back, if the
highest court in the land were readily to overrule the view expressed by it in the field for a
number of years. The Court may, in an appropriate cases only, overrule a previous
decision taken by it, but that should be done only for substantial and compelling reasons.”

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(1980) 3 S.C.C. 625
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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, it forms the basis for accepting
a particular decision as precedent.
In the famous Privy Council case, Mohiri Bibi vs. Dharmodas Ghose4 , the court called
upon to decide whether a mortgage executed by a minor was a valid contract. The Privy
Council held that since a minor’s agreement is void- ab-initio, a mortgage executed by a
person under 18 years of age is void. Now, the immediate decision binding the parties was
that the mortgage in question was void. However, that is not the ratio decidendi of the
case. The ratio of the case is that a minor cannot enter into a valid contract under the
Indian Contract Act.
 Obiter dicta- Obiter dictum is an opinion or a remark made by a judge which does not
form a necessary part of the court's decision and not binding on all other courts. 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.

Application of Precedents in criminal cases-

 The Supreme Court in Parsaraja Manikyala Rao v. State of A.P.5, held that each criminal
case depends on its own facts. Thus one should avoid the temptation to decide cases by
matching the colour of one case against the colour of the other.
 To render speedy and effective justice, it is required to avoid the tendency to refer to and
rely upon precedents to arrive at findings of fact in criminal cases.

4
1903 A.C. 6
5
AIR 2004 SC 132
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Conclusion-

 Precedent form the primary source of Law. Precedents serve as a reminder and as a base
to build on cases. 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 the guidelines which must be followed by the lower courts to ensure the
real justice, consistency, uniformity in the judicial decisions and also provide
predictability to the individual rights.

References-

Bibliography-

 Jurisprudence and Legal Theory – Dr. V. D. Mahajan.

 The Elements of Jurisprudence – Noshirvan H. Jhabvala.

Wbliography-

 Precedents as a source of Law - http://www.legalserviceindia.com/

 Law of Precedent - http://mja.gov.in/
 Case laws - www.indiankannon.in