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Precedents 3
Precedents 3
Meaning of Judicial Precedent: – Judicial precedent means the process whereby judges
follow previously decided cases where the facts are of sufficient similarity. In judicial
precedent, similar cases have been decided in the past. Judicial precedents based on the principle
of stare decisis are also a source of law as they offer a backbone or support to rely on, in cases
with similar facts. Judicial judgment is therefore based on the ‘doctrine of stare decisis’, namely
to “stand according to the decision already made”.
A Judicial precedent is a principle or a rule or judgement 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.
There is a term, called the ‘doctrine of stare decisis’, which states that the judgment of the
court is an example to be followed in future cases of a similar nature. The reason a precedent
is recognized is that the judiciary’s decision is considered correct. The use of precedent helps to
gain confidence in the litigation judicial system. The administration of judicial decisions is just
and fair.
What does Stare Decisis mean?
Meaning of Stare Decisis: – Stare decisis is a legal doctrine that obligates courts to follow
historical cases when making a ruling on a similar case. Stare decisis ensures that cases with
similar scenarios and facts be approached in the same way. Simply put, it binds courts to follow
legal precedents set byprevious decisions.
Stare decisis is the legal principle which requires judges to abide by and respect the precedents
laid down by similar prior decisions. The Latin maxim, Stare decisis et non quieta movere which
means, “to stand by decisions and not disturb the undisturbed” forms the basis of this legal
principle. In the legal context, judges interpret as meaning to not disturb already settled matters
to allow for continuity. If varying judges gave their opinion in different matters in different
courts, having similar facts would lead to chaos and many parties would feel like their rights
have been infringed and they would feel helpless and like justice has not been served to them.
This doctrine is basically a rule or a requirement that a Court must follow the rules established
by a superior court.
Definition of Precedent by various Jurists
In general, the term precedent means, ‘a previous instance or case which is, or may be taken as
an example of rule for subsequent cases, or by which some similar act or circumstances may be
supported or justified.’
According to Gray, ‘ precedent covers everything said or done, which furnishes a rule for
subsequent practice.’
According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure
been attached.’
According to Salmond, ‘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.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’
In general, in the judicial field, 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.
The application of such judicial decisions is governed by different principles in different legal
systems. These principles are called ‘Doctrine of Precedent’. For this case to be held, first such
precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the
precedent under certain circumstances must be followed.
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.
What are the parts of a decision?
The parts of a decision are as follows: –
1. Ratio Decidendi: – The ‘ratio decidendi’ is derived from a Latin word meaning reason for the
decision. It consists of a rule or principle established and formulated through judgment. The
principle applies in all future decisions that create the same facts; the fall in the ratio is
binding on all lower courts of the country.The ratio or cause of decision making is deducted
from the facts of the case and subsequently applied in all other cases, it forms the basis for
accepting a particular decision as precedent.
2. Obiter Dictum: – An obiter dictum is an opinion or comment made by a judge that does not
form an essential part of a court’s decision. Obiter dictum is a Latin word that means the way
things are done. The Obiter dictum mentions some opinions, examples, statements,
observations, etc., which are made by the judge while making the decision. These opinions are
not binding on all other courts, while they are only persuasive in nature.
What are the advantages of Judicial Precedent?
The advantages of Judicial Precedent are as follows: –
1. All people dealing with the same case are treated equally and there are equality and fairness of
justice.
2. It serves as guidelines to decide future cases.
3. For example, time is saved and convenience increases because the question once is already
settled and this saves the time and labor of judges and lawyers.
4. Precedents help formulate new statutory laws and adjust to the changing circumstances of
society.
5. Cases that make them more practical.
6. The binding precedent establishes a rule that helps maintain stability.
What are the disadvantages of Judicial Precedent?
The disadvantages of Judicial Precedent are as follows: –
1. A precedent bound a lower court to follow it which sometimes forces it to take less or harsher
decisions, which does not require in a case.
2. There are many examples of many cases and hence it becomes difficult to apply the right
example in the right case.
3. It is not mandatory to follow a precedent when a case is distinguished.
4. Some situations are not recognized under precedent because they are not taken into
consideration.
Types of Opinion
1. Dissenting Opinion: – Dissenting opinion, or disagreement, is the separate judicial opinion of
an appellate judge who disagreed with the majority’s decision explaining the disagreement.
2. Concurring Opinion: – A concurring opinion agrees with the outcome of the majority
opinion, but not necessarily the argument found in the majority opinion. The concurrent
opinion gives adjudicator an opportunity to clarify the legal logic of a case or to present a
completely different legal argument for adjudication.
Use of Precedent in the United States
The United States uses the common law system to some extent in its state courts and its lower
courts. The defined principle of common law requires that courts follow the decisions of higher-
level courts within the same jurisdiction.From this legacy of staring, it seems that according to
the law, somewhat predictable, consistent bodies have emerged.
The hierarchy of the court is clearly defined. The federal court system is based on a three-tier
structure, with United States district courts being trial-level courts; The United States Court of
Appeals is the first-level court of appeal, and the United States Supreme Court is the ultimate
arbiter of the law. The system includes both judge and jury and their respective roles.
Common law refers to judge-made laws otherwise referred to as case laws, these case laws
maybe based on constitutional provisions, statutory provisions or may be pure decisive case law.
Thus the case laws are properly recorded and also available to a common researcher.
The system of precedent is also very flexible, as the US Supreme Court rejected many of its
decisions. For example: Between 1946 and 1992, 130 of its decisions were dismissed. The
system, therefore, provides for the general rule of staring and effective implementation with a
flexible structure.
The determination of Bhanwari Devi attracted many women and a public interest petition
collectively under the forum of Visakha for violation of Articles 14,15,19 (1) (g) and 21.
The decision given by the bench of JS (PIL) induced to file. Varma, Sujata Manohar and BN
Kripal gave Vishaka guidelines to protect women from sexual harassment at the workplace, later
it was changed in 2013 to the Sexual Harassment of Women in Workplace Act, 2013, one of the
biggest victories of women enabled.