Lecture XIV

PRECEDENTS AS A SOURCE
INTERPRETATION OF

Synopsis
1. Precedent
2. Obiter dicta
3. The Doctrine of Stare decisis .....
1. PRECEDENT:
The decisions of the English judges have paved wayto.the
formation of the common law of England.1 A HigherCourt
Judgements has authority over the Lower Courts, and thelatter
they are bound to follow it? Black's Law Dictionary,9thedition
defines precedent as "a decided case that furnishes a basisfor
detennining later case involvingsimilarfacts or issues."
Dillon defines the law of precedents as:
"That a decision by a court of competent jurisdictionofa
point of law lying so squarely in the pathway of judicial judgment
only
that the case could not be adjudged without deciding it, is not
thepoint
binding upon the parties to the cause in judgment, but evidence
so decided becomes, until it is reversed and overruled,bound to
the courts are
•of what the law is in like cases, which which wasfirst
follow not only in the cases .precisely like the one
in origin,or
determined but also in those, which however different
stand, uponthe
special circumstances* stand, or are considered to
same principle.' '3 byJ
which is decided
As per=chis definition, a decision case as well
competent court is binding on the parties to the
The theory of jildicial precedent, 376 (1900).
1. Salmond,
2. Dias, Jurisprudence, 126 (5th ed., 1985).
3. Dillon: Laws and Jurisprudence,232
283
 Lectures on Interpretation of Statutes [Lec.XIV
come before the Courts.
thecasesof a similar nature which may
TheCourtsare bound to follow the.formerly established principle
notonly in cases which are exactly alike but also in those which
relyon the same principle even though differentaspects of the
lattercase may vary. For the courts to deviate themselves away
fromthe established decision unless such judgement is later
overruledby the same court or an appellatecourt. This could be
becausethe law was applied erroneously or was misunderstood
in the former case. J If a principle is once decided fairly after
proper deliberation, it is only right to accept the binding authority.
The Court obliges its own decision on the ground of judicial
comity.2 Even though true that this doctrineof stare decisis does
not find its place in the statutes, it shouldalways be strictly
observed by the Courts of law for the ends of justice.3
A precedent is a judicial decisionor judgement of a court
which is, in a later case which has similar set facts as cited as an
authority. It contains in itself a principlewhichhas the force of
law and is binding. This essential principle is often characterised
as ratio decidendi.
Any judgement usually two parts —ratio decidendi and
obiterdicta. It is the ratio decidendi that is the essential part that
hasthe force of law and is the authoritative part of the judgement.
Accordingto Salmond "a precedent, therefore,is a judicial decision
whichcontains in itself a principle. The underlyingprinciple which
thusforms its authoritative element is often termed the ratio
decidendi. The concrete decision is bindingbetween the parties
to it, but it is the abstract ratio decidendi which alone has the
forceof law as regards the world at large."4
Ratiodecidendi is the ratio of a decisionof the Court that
isbindingas a precedent not the decision on the question of facts
l.
Theprincipleof stare decisis, American law registerDecember 1886.
2.
Stuartv. Bank of Montreal (1909) 41 SCR 516, at p. 549
3.
MishriLal (Dead) By L.Rs -e Dhirendra Nath (Dead) By L.Rs. and
Others,(1999)4 SCC
4. ll.
JohnW Salmond,
Theory of Judicial Precedents,376 (1900).
 Lec.XIVl Precedents as a Source ot Interpretation
285
since no two cases have the same factsl and for this
reason, it
is risky to apply the precedent on the questionof facts.2
Exceptions to Precedent:
There are however two exceptions to this binding nature of
the precedent
O) The rule of sub-silentio and
(ii) Being in per incuriam.
Sub-silentio is when the mind of the Court does not perceive
a particular point of law which is involved in a decision and such
point has been silently ruled without any discussion.3 Per incuriam
decisions are those decisions which are decided wrongly usually
because the judges were ill-informed about the applicable law.4
Divergent views on the same question of law
In case of different views expressedin judgments of two
benches of equal strength then whicheverjudgement is the earlier
one will binding unless the consequent judgement was based on
a change in law or on a binding precedent rendered after the earlier
judgment.
If a Bench of cooitlinate jurisdiction has different arguments
or on a question of law, instead of expressing a different view, it
is only proper to refer that particularmatterto a larger bench.
Otherwise,it would lead to uncertainty of the lava
The scope of decision of a High Court
A decision of a High Court is bindingonly in the State or
territoriesin which it has jurisdiction. It is not binding on another
High Court or on those Tribunals which are outside the territorial
jurisdiction. The decision of the High Court has a persuasive
effect at best. By the virtue of Art. 141 of the Constitution of India
only decisions of Supreme Court is binding on all courts. A High
1. Daibir v. State of Punjab, AIR 1979SC 1384.
2. Guru Charan Singh v. State of Punjab AIR 1956 SC 460.
139.
3. State of U. R v. Synthetics & Chemicals, 1991(4) SCC
(9th ed., 2009).
4. Bryan A. Garner, Black's Law Dictionary, 1254
 of Statutes [Lec.XIV
286 Lectures on Interpretation
taken by
Court cannot take a different view than what has been
the Supreme Court.
2. OBITER DICTA:
The non-authoritativestatementsother than ratio decidendi
are obiter dicta. They are the mere passing of remarks. They are
chance remarks. Mere casual remarks are not bindingl on the
future Courts. Even though it is the ratio that is binding in judgment
and not the obiter of a judge but the obiter of the decision given
by Supreme Court has considerable weight.2 The binding nature
of obiter may vary dependingon the factors such as the reputation
of the Judge, the eminenceof the Court and the circumstances in
which it came to be pronounced.3
3. THE DOCTRINEOF STARE DECISIS
stare decisis is Latin for to "stand by things decided' The
Judgment or a décisionmade by the Courts of competent
jurisdiction stands bindingon other cases of similar nature and
thus act as a legal authority to the latter cases unless and until they
are overruled. Stare decisis is the doctrine of precedent or
authority4.
Black's Law Dictionary,9thedition defines stare decisis as
"the doctrine of precedent,under which a court must. follow
earlier judicial decisionswhen the same points arise again in
litigation."
The concept of Stare decisiscomes from a Latin maxim
Coke put. the full•form of the principle, stare decisis et non
quietamovere which means to stand by precedent and not to

1. Municipal Corporationof Delhi v, Gurnam Kaur, 1989 (l) SCC

101.
2, UT Hyderabad v, VazirSultan AIR 1959 SC 814 1959.
3. State of Maharashtra and Others v, Murarao Malojirao
Ghorpade
and Others, 2009(6)ALL MR 706, 2009 (6) Bom.C.R. 497,
(6) MahLJ 788. 2009
4. The Doctrine of Stare Decisis Thomas Burns 1893
Lcc.XIVl L'rcccdcntsas a Source or Interpretation
287
disturb what is settled. I In its classic English version ase'
things which have been so often adjudged ought to rest in 'Th
Uncertainty is one of-the most
basic features of the law. pease" 2

would be absolute confusion faced by the society which There

would
ultimately lead to chaos if there is a confusion as such in the
which ought to be avoided. 3 law

The origin of the doctrine is not known exactlyandisso

ancient it surpasses the English Law.4 Some claim that it wasin
effect even before the days of Hale and Blackstone, whereassome
speculate that the principle had its origin in Witengemote anda few
others claim that it originatedin Roman Law's jus praetorium.5
The earliest known English case which talked aboutthis
principle is Sheddon v. Goodrich6 in which Lord Eldonhas
commented that "It is better that the law should be certainthan
that every judge should speculate upon improvements in it." Itcan
be seen that in Beamish v. Beamish7 there was an extensive
discussion if the decision in The Queen v. Mills8 given bythe
Irish Court of Exchequer Chamber authoritative in the current
case. Many scholars noted that the principle of stare decisishas
originated from the Beamish case which was decided in theyear
1861.9As the deeision gets older, its authority and acceptanceas
stating the correct law only gets greater.10
1. Waman Rao & Ors. Etc. Etc. v. Union Of India And Ors, (1981)2
scc 362.
2. The Doctrine of Stare Decisis Thomas Burns 1893
Sakshi v. Union of inaia & Others, (2004) 5 SCC 518.
William F. Ehrcke, Stare Decisis, 53 Advocate (Vancouver)
1

4. 847

(1995).
5. W. F. Kuzenski,Stare Decisis, 6 Marq. L. Rev. 65 (1922).
6. (1803), 8 Ves. 441 at p. 447.
(1861), 9 H.L. Cas. 274,
8, 10 Cl. and F. 534. Law
9. in English
See, for example, R. Cross and JW. Harris, Precedent MurphY
(4th
ed.) (Oxford; Clarendon Press, 1991), at p. 7; and J.D.
Courts
and R, Rueter, Stare 15ecisisin Commonwealth Appellate
(Toronto: Butterworths, 1981), at p. 3. 225,
10. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
 Lectur6 on Interpretation of Statutes [Lec.XIV
zss
a possibility that the doctrine might have had
There is even
doctrine has no place in the modern Civil
rian origin. 'Ihe
•urisdiction.In Prussia ånd other European Countries, this •
i
is generally not applicable.
doctrine
Thedoctrineis explained in Corpus Juris Secundum,2
the stare decisis rule, a principle of law which has •
"Under
becomesettled by a series of decisions generally is binding on
followed in similar cases. This rule is
thecourts and Should be
basedon expediencyand public policy, and, although generally
it shouldbe strictly adhere/ to by the courts, it is not universally
"
applicable.
It is necessary that there is a certainty to the law and this can
onlybe achieved when the doctrine of stare decisis is adhered to.
'Ihe doctrineis based on the notion that a sei•iesof precedents
shouldnot be departed from.3 The principle of abiding by the
previouslydecided authorities and cases, being a salutary one4
has beenapplied in India as well. 5
CorpusJuris Secundum adds a rider that "previous decisions
shouldnot be followed to the extent that grievous wrong may
result;and, accordingly, the courts ordinarily will not adhere to a
ruleor principle established by previous decisions which they are
convincedis erroneous. rule of stare decisis is not so imperative
or inflexibleas to preclude a departure therefrom in any case, but
its applicationmust be determined in each case by the discretion
of the court, and previous decisions should not be followed to the
extentthat error may be perpetuated and grievous wrong may
result."

W. F. Kuzenski,Stare Decisis, 6 Marq. L. Rev. 65 (1922).

2, Corpus Juris Secundum, VOL XXI P. 302, para.
187.
34
FrederickG Jr. Kempin, Precedent and Stare Decisis:The Critical
Years,1800to 1850,3 Am. J. Legal
Hist. 28 (1959)
N S BNDRA,1nterpretation
of Statutes , 903 (10th Ed., 2008).
BrijNarainv. Mangla
Prasad, 51 IA 129, AIR 1924pc 50, p, 55.
Lec.XIVl Precedentsas a Source of Interpretation 289
To fOllowthe doctrine of Stare Decisis is usually wise but
at the same time, it is not a universal and inexorable command.l
The doctrine.won'tprevent the Courts from overrulinga previous
decision, if such a decision is evidently wrong or if it proceeds
upon a mistaken or wrong assumption. Jackson,J., in
Massachusetts v. United States2 and Lord Denning in Ostime v.
Australian Mutual Provident Society3 observed that the doctrine
does not compel the Courts to do a wrong consciouslyby
following a mistaken decision that might have been laid down in
a previous case unconsciously. 4
Justice R. C.Lahoti stated that "The trend ofjudicial opinion,
in our view,is that stare decisis is not a dogmaticrule allergic
to logic and reason; it is a flexible principle of law operating in
the province ofprecedents providing room to collaborate with the
demands of changing times dictated by social needs, State policy
"5
and judicial conscience.
In Maktul v Mst. Manbhari and Others6 the question was
whether a Hindu governed by customary law prevailing in Punjab
succeeds to his maternal grandfather's estate, is propertyin his
hand's ancestralproperty qua his own sons to whichPunjab High
Court in a previous decision7 held affirmative without any evidence
of the custom.Therefore the Apex Court held referred to Halsbury 's
Laws of Englandand Corpus Juris Secundumand stated that
since the previousdecision has been given withoutleadingany
evidence of the custom before the Court and the reversalof it

1. State of Washingtonv. Dawson and Company, (1923)264 US 219

68 L. ed. 2d. 646.
2. 333 US 611.
3. 1960) A.C. 459.
4. Tandon, Interpretationof Statutes, 284 (2010).
5. State of Gujarat and Others v. Mirzapur Moti Kureshi Kassab
Jamat And Others, (2005) 8 SCC 534.
6. AIR 1958SC 918; 1958 SCJ 1268; [19591 1 s.c.R. 1099.
7. Lehna v. Musammat Thakri, [1895] 30 P.R. 124.