PRECEDENT AS SOURCE OF LAW

→ Judicial Precedent is considered to be the main source of law with respect to England. And it
enjoys high authority in all most all legal order.

→ But, some jurist like Savingy believed that precedent is not a source a of law, rather it is an
evidence of customary law.

→ A precedent is purely constitutive and in no degree abrogative. This means that a judicial
decision can make a law but can not alter it. In other words, judge can not substitute their opinion for the
established rule of law.

→ The function of a judge is limited to fill up the gaps that exist in the old laws and supplement the
imperfectly developed body of legal doctrine.

REASON FOR RECOGNITION OF PRECEDENT AS SOURCE

1. A judicial decision is presumed to be correct.

2. Following the precedent create confidence in the mind of the litigants.
3. Law become certain and known.
4. Judges are considered to be experts in the study of law.

→ There is two different stance on, “Do judges make law?”

DECLARATORY THEORY:
One section believed that Judges discover law on a particular point and declare it. Jurists such as Chief
Justice Coke, Sir Mathew Hale, Blackstone, C K Allen, etc belong to this section.

→ Judicial decisions are not source of law but the best proof of what the law is. ( CooK)
→ “There is in fact no such thing as judge made law, for the judge do not make the law though they
frequently have to apply the existing law to circumstances as to which it has not previously been
authoritatively laid down that such law is applicable. ( Lord Eshar )
→ J Hidayatulla (Rajeswar Prasad vrs WB 1965) “No doubt, the law declared by this court (SC)
binds courts in India, but it should always be remembered that this court does not enact.”

Criticism

→ Jurists like Bentham, Austin, Salmond, Munroe Smith severely criticized the “declaratory
theory”.
→ Bentham mentioned it as childish fiction. {His opinion is based on examination of English law,
since common law is a product of judges}

→ Judges not only interpret the law, but also expound new proposition of law.

JUDGES AS LAW MAKERS

→ Lord Bacon, Dicey, Prof Gray, F Pollock : Judges make law.

→ English law is judge made law – it consists of rules to be collected from the judgments of the
courts.

→ “ A fortiori, whoever hath an absolute authority not only to interpret the law, but to say what the
law is, is truly the law-giver.” {GRAY}

→ They (judges) are the final authority in USA while interpreting law. ( Roosvelt)

Criticism

→ there is limitation on the part of judge, since they can not alter the statute. Judges are there to
enforce the law prescribed in the statute.

→ Legislative power of the judge is restricted to the facts of the case before him. They have limited
legislative power. According to Cardozo, “the judge, even though he is free, is still not wholly free. He
is not innovative at pleasure……. He is to draw his inspiration from consecrated principles.

→ Any principles laid down by a judge which do not form the ground of his decision and which are
not applicable to the case under consideration are only obiter dicta and such obiter dicta have no binding
authority.

CONCLUSION

Both the stances represent partial truth. Though making and declaring law is not synonymous act, but
are complementary and not opposed to each other.

In common law countries, judges played a more creative role. But, countries where law is codified, the
role of judge is restricted.

Even if judges do not make law in the sense of promulgating it, it must be acknowledged that they
develop the law. In fact, some times application of law also requires certain degree of creativity.

The sociological school ( in 20th century)emphasizes the creative role of judges in society.

CIRCUMSTANCES WHICH WEAKEN THE BINDING FORCE OF LAW

I. ABROGATED DECISION: A decision ceases to be binding if a statute or statutory rule

inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.

Reversal : Decision is taken on appeal and is reversed by the appellate court

Overrule: The higher court declares in another case that precedent case was wrongly decided and
so it is not to be followed.

II. AFFIRMATION OR REVERSAL ON A DIFFERENT GROUND: A decision either affirmed

or reversed on another point is deprived of any absolute binding force which it might otherwise
have had, but it remains an authority which may followed by court that thinks the particular
point to have rightly decided.
 III. IGNORANCE OF STATUTE: A precedent is not binding when it is rendered in ignorance of
statute or a rule having force of a statute (e .i. delegated legislation). In such cases, even a lower
court can also refuse to follow a precedent.

IV. INCONSISTENT WITH EARLIER DECISION OF HIGHER COURT: A decision is called

“per incuriam”, when it is delivered overlooking the decision of the higher court or inconsistent
with the decision of the Higher court verdict. Such decisions lack the binding force.

V. INCONSISTENCY BETWEEN EARLIER DECISIONS OF THE SAME RANK:

A court is not bound by its previous decisions.

Where authorities of equal standing are irreconcilably in conflict, a lower court has the freedom to pick
and choose between them.

VI. PRECEDENT SUB SILENTIO OR NOT FULLY ARGUED: when a particular relevant
point is not noticed or not argued in a case and judgment is passed, such precedent is called
precedent sub silentio. Such judgment lacks the authority of judicial precedent.

In K Balakrishna Rao vrs Haji Abdulla Sait (1980), SC observed that the binding force of a
precedent does not dependent on the whether a particular argument was considered therein or not,
provided the point with reference to which an argument was subsequently decided by the SC.

VII. DECISIONS OF EQUALLY DIVIDED COURTS: Where an appellate court is evenly divided
in a case, the practice is to dismiss the appeal. As now, most of the matters in the appellate court
bench are comprised of judges of uneven number, the said situation does not arise.

VIII. ERRONEOUS DECISION: Erroneous decisions made on wrong principles or by conflicting

with the fundamental principles, it also lacks the binding force.

SC of India is not bound to its own earlier decision

In Bengal Immunity Co. Ltd. Vrs Bihar (1955): There is nothing in our constitution which
prevents the SC from departing from its earlier decision if it is convinced of its error and its
baneful effect on the general interests of the public.

CIRCUMSTANCES WHICH INCREASE THE BINDING FORCE OF LAW

→ Number of judges constituting the Bench

→ Eminence of lawyer who argued
→ Unanimity of the decision of the judges
→ When an Act passed is based on a precedent

Methods of Judicial Decisions

Deductive: the general legal rule is already fixed and certain and the same is applied in individual cases
by the judges.

Inductive : the judge has to start from a particular case and come to a general principle of law. the
process is from particular to general.
Kinds of Precedent

1. Authoritative and Persuasive

2. Absolute authoritative Precedent & Conditional Authoritative Precedent: Judges are
bound to follow absolute precedent, even though they may not approve it. Where court can
disregard certain kind of precedent in certain condition is called “ Conditional Authoritative
Precedent.” For instance, abrogated decision, erroneous decision, decision contrary to law,
etc.
3. Declaratory & Original: Declaratory precedent is one which is merely the application of an
already existing rule of law. Original precedent is one which creates and applies a new rule.

DOCTRINE OF STARE DECISIS: “ let the decision stand in its rightful place”

“ a principle of the law which has become settled by a series of decisions is generally binding on the
courts and should be followed in similar cases.”

→ This rule is based on the expediency and public policy.

The doctrine of stare decisis developed as a result of progress made in law reporting. The origin of law
reporting can be traced back to 17th century in England.

→ The operation of doctrine of stare decisis presupposes the existence of a hierarchy of courts.
There are two general principles on which the doctrine of stare decisis is based. __
A. Each court is absolutely bound by the decision of the courts above it.
B. To certain extent, higher courts are bound by their own decisions. SC of
India is not bound to its own decision..

→ It is an English common law doctrine. Principles of the said doctrine can be traced in the
provisions of Art. 141 of the Constitution.

Art. 141: Law declared by the SC of India shall be binding on all courts in India
The terms “court” does not includes SC. ( Bengal Immunity Co Lt. vrs Bihar 1955)

→ The rule of stare decisis is not so imperative or inflexible that it cannot be departed from but
its application must be determined in each case by the discretion of the court and previous decisions
should not be followed to the extent that error may be perpetuated and grievous wrong may result.

→ the rule of “star decisis” is only a useful servant and cannot be a allowed to turn into a tyrannous
master.

→ Blindly and mechanically following the rule of stare decisis may dwarf and stultify the growth of
law and affects its capacity to adjust itself to the changing needs of the society.
 RATIO DECIDENDI: “reason of the decision”

→ It is the general principle which is deduced in the case. It is the rule of law upon which decision
is founded. It is different from “res judicata” ( res judicata means decision given in a particular case and
which is conclusive between the parties)
→ Every decision contains three basic ingredients
(b) finding of material facts direct and inferential:
(c) statements of principles of law applicable to the legal problem disclosed by the
facts; and
(d) judgment based on the combined effect of (a) & (b).

For the purpose of doctrine of precedent ingredient no (b) is the vital elements in the decision.

→ Rupert Cross: It is a rule of law expressly or impliedly treated by the judges as a necessary step
in reaching his conclusion.

→ Salmond: A precedent is a judicial decision which contains in itself a principle. The underlying
principle which thus forms its authoritative element is often termed the ratio decidendi. The
concrete decision is binding between the parties to it but it is the abstract ratio decidendi which
alone has the force of law as regards the words at large.

→ Prof. Goodhart: Ratio decidendi is nothing more than the decision based on the material facts of
the case.

→ Prof Keeton: Ration decidendi is a principle of law which forms the basis of decision in a
particular case.

OBITER DICTUM: “ a saying by the way”

1st Law Commission Report(1956) (page 34)___

“It is necessary that the law should, as far as possible, be made certain and definite instead of leaving it
to courts to develop the law according to the view of the judges. The citizen must be in apposition to
know the law definitely.”

MERIT:
1. It is more keeping with the needs of the society. Judges shape their judgment as per the
requirement of the society.
2. It gives rise to practical and perfect law based on a actual situation. In contrast to it, enacted law
is based on assumption and imagination.
3. Law become certain and easy to understand.
4. Precedent provides useful guidelines for the judge in deciding cases before them.
5. it provides flexibility to the law to adopt to new situation.

DEMERITS:
1. It creates an atmosphere of uncertainty, because of huge bulk of cases.
2. Natural justice demands that the law should be known before it is enforced. But, in
precedent, only when decision is pronounced, law is laid down.
3. It is not easily accessible to common man. It is very difficult for a common man to trace the
ratio decidendi of a case, though he bound to such law. Law reports are not easily available
for the common men.