Precedent as a Source of Law

I. Introduction: In the general use, the term ‘Precedent’ means some set pattern guiding the
future conduct. In the judicial field, it means the guidance or authority of past decisions for
future cases. Only such decisions which lay down some new principles are called judicial
precedents. Judicial precedents is an important source of law , but it’s neither as modern as
legislation nor as it as old as custom. The chief merit of common law systems is that the
precedents are in certain circumstances binding, which means, that they have either to be
followed or distinguished. Precedent means, the judgment or decision of the decision of the
court cited as a right of implied legal principle. The doctrine of precedent, also known as
stare decisis, which means standing by judgment, is based on the principle that like cases
should be decided alike . Once a case has been decided by the judge to apply the principle,
when similar facts arising in the future should also be decided by applying the same principle.
This does not always save the time and labour of judges, but also maintains certainty,
predictability and uniformity in the applications of law.

II. Meaning and Definition:

Salmond: -Precedent is, ‘in a loose sense, it includes merely reported case law which may be
cited & followed by courts.’ In a strict sense, that case law which not only has a great binding
authority but must also be followed.

Grey: - Judicial precedent covers everything said or done which furnished a rule for
subsequent practice.

Bentham: -'precedents are judge made laws’.

Keeton: - Judicial precedent is a judicial decision to which authority has in some measure
been attached.

Austin: -precedent is “judiciary s law”.

III. Types of Precedents:

a. Original precedents: New law making decisions are called original precedents.
Original precedents are responsible for the creation of new laws.

b. Declaratory precedents: Where there is application of known and systematic principles

of law to particular facts of a case are called declaratory precedents. A declaratory
precedent is not a source of law but while original precedents are the core principle.

c. Authoritative precedent: These can be classified as two types:

i. Absolutely Authoritative Precedent: In an absolutely authoritative precedent, the

judges have to compulsorily follow the judicial decision of the precedent in a case of
law. In other words, even if the judge finds the precedent to be a wrong judgment, he
is legally bound to give the same judicial decision. For e.g. – Every court in India is
absolutely bound by decisions of courts superior to itself because of hierarchy.
 ii. Conditionally Authoritative Precedents: A conditionally authoritative precedent is
one where generally the precedent is absolutely authoritative but in certain special
circumstances, like a supreme court decision, it can be disregarded. The court can
disregard the decision if it is a wrong decision, or goes against the law and reason.

d. Persuasive precedent: A persuasive precedent is a type of precedent where the judge is

not required to follow the precedent in a legal matter but will take the precedent heavily
into consideration. So a persuasive precedent is not a direct source of law but is
considered a historical source of law. In India, the decisions of one high court can act as
persuasive precedents in other high courts. For example: A decision of the Delhi High
Court is only a persuasive precedent, as far as the Madras High Court is concerned, there
is no compulsion to follow it. Foreign decisions can also be considered persuasive.

IV. Use of precedent in US: United States uses the common law system in its state courts and to
a lesser extent in its lower courts. The defining principle of common law is the requirement
that courts follow decisions of higher courts within the same jurisdiction. It is from this
legacy of stare decisis that a somewhat predictable, consistent body of law has emerged. The
court hierarchy is clearly defined The federal court system is based on a three-tiered
structure, in which the United States District Courts are the trial-level courts; the United
States Court of Appeals is the first level court of appeal; and the United States Supreme Court
is the final arbiter of the law. The system consists of both the judge and the jury and their
respective roles. Common law refers to judge made laws which are otherwise called as case
laws, these case laws can be based on constitutional provisions, statutory provisions or it can
be pure decisional case laws. Thus case laws are properly recorded and are available even to
a common researcher. The system of precedent is also very flexible, as the US Supreme
Court overruled many of its judgments. For example: between 1946 and 1992 almost 130 of
its judgments were overruled. Hence the system provides for effective implementation of the
common law with the principle of stare decisis and a flexible structure.

V. Evolution of Precedent in UK: In the English legal system, precedents have got great
authority and the Doctrine of “Stare Decisis” is its singular feature. It means to stand by
things. A judicial decision must be allowed to stand in its rightful place. In other words, it is
the principle that judicial decisions have a binding character. Essential elements of the
doctrine are:

a. Every court is bound to follow the decisions of the superior courts.

b. Supreme court of India is not bound by its own decisions. However, a smaller
bench is bound by the decision delivered by a larger bench.

c. The decisions of one particular high court are not binding on any other high
court. They only have persuasive value in other high courts.
 Gradation of Courts in UK

VI. Evolution of Precedent in India: Law in India has evolved from religious prescription to the
current constitutional and legal system we have today, traversing through secular legal
systems and the common law. The doctrine of precedent has evolved from the English law
and is pari materia to India. Therefore it has the following importance in the legal system
such as:

a. Ancient Law: There was theory of precedent in India in ancient times, however, there
are no records of cases or any other reliable evidence upon which anything can be said
definitely. The courts were generally local which, decided most of the things orally. The
ancient courts were Kula, Sherni, Puga, and Shashan, tribal and local tribunals
respectively. The decided the cases falling within their respective jurisdiction.

b. Medieval Times: In the medieval period also, we find no traces of any theory of the
precedent. Though Muslim rulers established courts and had appointed Qazis to
administer justice, most of the disputes in villages were decided by panchayats. In the
absence of a well-organized judicial system, no doctrine of precedent developed in India
as it developed in England. It is after the establishment of the British rule that present
 theory of precedent stared developing and from that time onwards, we can trace gradual
development of the theory.

c. During the British Rule (The Government of India Act 1935): Precedent became a
source of law only during British rule in India. The Government of India Act 1935
established the Federal court and Privy council, by which the decision of the federal
court was binding on all courts below it. The decision of the Privy council was binding
on the federal courts and below it. Section 212 of the Act made the following provision:-
“the law declared by federal court and by any judgment of the Privy Council shall, so far
as applicable, be recognized as binding on and shall be followed by all the courts in
British India.”

Indian Constitution 1950: By the Indian Constitution, 1950, a Supreme Court was
established which became the final appellant tribunal. In states there are High Courts and
in districts there are District Courts. Article 141 of the Indian constitution,1950 provides
that “ The law declared by the Supreme Court shall be binding on all courts within the
territory of India”.

The doctrine of stare decisis works in accordance with hierarchy of courts, whereby
decisions of higher courts are binding on lower courts. The decision of a High court is
binding on all lower courts within the territorial jurisdiction of that High court.

Gradation of Courts in India

The Supreme Court

 Decisions binding on all courts
 Hears Appeals from High Courts
 Call a case from High/other courts

High Courts
 Highest Court in States
 Decisions binding on all lower courts
 Appeals from lower/other courts within state
 Enforce fundamental rights

Other/ Subordinate Courts

 Deals with Civil and Criminal Cases

Doctrine of Precedent and the Supreme Court: The Supreme Court has been
established by the Indian Constitution, 1950. It is the highest judicial tribunal of the
Indian Union. It has very wide appellant, writ, revisional and in some cases original
jurisdiction. As per Article 141, a law declared by it is binding on all the courts of the
country.

Supreme Court Not bound by its own decisions: the expression ‘all courts’, used in
Article 141 refers only to courts other than the Supreme Courts. Thus, the Supreme Court
is not bound by its own decisions, except to the extent that a smaller Bench is bound by
the decisions of a larger Bench and that of a Co-equal Bench. Further, the supreme court
is not bound by the decisions of foreign courts.

However, the Supreme Court has observed that the doctrine of stare decisis is a very
valuable principle of precedent which cannot be departed from unless there are
extraordinarily or special reasons to do. Thus the Supreme Court will not ordinarily
depart from its earlier decision. Any departure from this doctrine is allowed only in
extraordinary circumstances, when an earlier decision is found erroneous and is
detrimental to the general welfare of the public or for organic development of law.

In Bengal Immunity Company Ltd. v. State of Bihar, AIR 1955 SC 661 : There is
nothing in the Indian Constitution that prevents the Supreme Court from overruling the
previous decision if there is any errors and its beneficial effect on the general interest of
the public.”

In Sajjan Singh v. State of Rajasthan, 1965 “It is true that the constitution does not
place any restriction on our power to review our earlier decisions or even to depart from
them and there can be no doubt that in matters relating to the decisions of constitutional
points which have a significant impact on the fundamental rights of citizens, we would
be prepared to review our earlier decisions in the interest of the public good.”

Further, in Shanker Raju V. Union Of India, 2011 SCC 2 132, “The doctrine of stare
decisis is expressed in the maxim stare decisis et non quieta movere, which means “to
stand by decisions and not to disturb what is settled”. The underlying logic of this
doctrine is to maintain consistency and avoid uncertainty. The doctrine shall not be
disturbed only because another view is possible.

Recently, In Narinder Singh And Others V. State Of Punjab And Another, 2014
AIR SC 2065, it was held that The law declared by this Court in the form of judgments
becomes a binding precedent for the High Courts and the subordinate courts, to follow
under Article 141 of the Constitution of India. Stare decisis is the fundamental principle
of judicial decision-making which requires “certainty” too in law so that in a given set of
facts the course of action which law shall take is discernible and predictable. Unless that
is achieved, the very doctrine of stare decisis will lose its significance. The related
objective of the doctrine of stare decisis is to put a curb on the personal preferences and
priors of individual Judges.

Doctrine of Stare Decisis and the High Court: The decisions of the High Court create
binding precedents for the subordinate courts and the Magistrate’s Courts. One high
court judge is not bound by the decisions of another judge of the same high court. A
judge may refuse to follow his own decisions given earlier.

The decisions of the high court are binding on all the subordinate courts and
tribunal within its jurisdiction. The decisions of the High Court have only a persuasive
value in a court which is within the jurisdiction of another high court. But if such
decision is in conflict with any decisions of the high court within whose jurisdiction that
court is situated, it has no value and the decision of that high court is binding on the
court.
How far is the High Court bound by its own decisions? In High Courts, generally
appeals are heard by a single judge ( some appeals, such as murder special appeals, etc.
are heard by a two judges. Different high courts have their different rules in this respect).
When an appeal involves some important and complicated questions of law, it is referred
to a larger Bench. A single judge constitutes the smallest bench. A bench of two judges is
called Divisional Bench. Three or more judges constitute a Full Bench. The decisions of
bench are binding on a smaller or co-ordinate Bench. Thus, if a single judge or a division
bench disagrees with the decisions of Bench of coordinate jurisdiction it should refer the
matter to a larger Bench. To summarize, when a Bench of a high court gives a decision
on a question of law, it should, in general, be followed by other benches unless they have
reasons to differ from it, in which case the proper course to adopt would be to refer the
question for the decision of a full bench.

What is the authority of the High Court decisions in another High Court?
The High Court is the courts of co-ordinate jurisdiction. Therefore, the decision of one
high court is not binding on the other High Courts. However, in the practice, they are
cited in the other High Courts and they have persuasive value. The Full Bench decisions
of one High Court command great respect in other High Courts. The decisions of older
High Courts carry
more weight.

What is the authority of a Federal Court decision in the High Courts? The decisions
of the Federal Court were made binding by Section 212 of the Government of India
Act,1935 which has been cited earlier and they continue to be so even after 1950 by the
authority of the article 225 of the Indian Constitution, 1950 which shall be discussed
later on. However, they are binding only so long they have not been overruled by the
Supreme Court.

What is the authority of Privy Council decisions in High Courts?

Pre-constitution (1950) decisions of the Privy Council are binding on all the courts
unless they conflict with any decision of the Supreme Court. Article 395 of the Indian
Constitution, which saves the abolition of Privy Council Jurisdiction Act, 1949 makes
the decision of the Privy Council authoritative. Section 8 of the Act runs:- “Any order of
his Majesty in Council made on an Indian appeal or petition whether before, on or after
the appointed day, shall for all purposes have effects, not only as an order of Majesty in
Council, but also as if it were an order or decree made by the Federal Court in the
exercise of the jurisdiction conferred by this Act.”

Secondly, Article 225 of the Indian Constitution says- “subject to the provisions of this
Constitution and to the provision of any law of the appropriate legislature…..the law
administered in any existing High Court….shall be the same as immediately before the
commencement of this Constitution”. The expression “law administered” includes case
laws also.

Thus, according to these provisions, the decisions of the Privy Council given before 1949
shall be binding on High Courts unless they have been overruled by the Supreme Court.
If there if there is any conflict between a pre-constitution Privy Council decisions and
federal court decisions, it is decisions of the Privy Council that would prevail. The
Supreme Court can overrule any pre-constitution Privy Council decisions and in that case
it would lose its authority.
 What is the authority of Supreme Court decisions in High Courts? As observed earlier,
the Supreme Court is the highest judicial tribunal. Therefore decisions given by the
Supreme
Court are binding on all the tribunal of the country. This authority to the Supreme Court
decisions is given, in unequivocal words, by the constitution.

VII. Importance/ Reason for a Precedent as Valid source of Law:

a. Consistency and impartiality: Because of the presence of judicial precedents, the

lawyers become able to assist their clients regarding specific subject matter after
observing the precedents prevalent in such field. It provides guarantee that every case
will be treated and decided in a manner that is similar to past decisions. There is an
element of consistency and impartiality that everyone can rely upon it.

b. Flexibility: Precedents bring flexibility in the legal system. The Supreme Court of
India is not bound by its own decisions. The rules settled by the Supreme Court in a
particular subject matter remain in force unless they have not been overruled by the
Supreme Court. This system creates a series of checks and balances in the judiciary.
Judges may not write the laws, but it is their job to interpret the law as accurately as
possible in every situation. They mould the law according to changing conditions and
thus bring flexibility to the law.

c. Saves time of the courts: Judicial precedents provide great convenience as it reduces
the labour of judges and lawyers. Once the question regarding some specific matter is
resolved then it is not required to re-argue the same question in the future similar cases.
That means judges can spend less time in deliberation because they already have access
to the decision making processes of others.

d. Prevents error of judgement: Precedents guide judges and consequently, they are
prevented from committing errors which they would have committed in the absence
of precedents. There is lesser chance of mistakes when everyone stays on the same
page. By deciding cases on established principles, the confidence of the people on the
judiciary is strengthened.