Short note on Precedents.

Precedents literally means previous judicial decision. The decisions of the

higher courts are binding on the lower courts. The binding force of decision is
called precedent. The precedents play an important role in the development of
law. It is the second important source of law. Sometimes act may be insufficient
for the case or there may be an vacuum or any thing missing in the act. Under
these circumstances the court can apply their own mind. These independent
decisions becomes precedents which are followed later on by the same & Lower
courts. This method of decision is also called as Judge made law. The English
and American law is mostly based upon the precedents. In simple words,
judicial precedent refers to previously decided judgments of the superior courts,
such as the High Courts and the Supreme Court, which judges are bound to
follow. This binding character of the previously decided cases is important,
considering the hierarchy of the courts established by the legal systems of a
particular country. In the case of India, this hierarchy has been established by
the Constitution of India. In India Art.141 of Indian Constitution gives a
constitutional status to the theory of precedent in respect of law declared by the
supreme court. The Article 141 provides that the law declared by the Supreme
court shall be binding on all courts within the territory of India. Similarly, the
decisions of every high court being judicial precedents are binding on all courts
situated in the territory over which the High Court exercises jurisdiction. Those
decisions also carry persuasive value before courts which are not situated within
its territory. The decisions of the Supreme Court and of the High Courts are
almost as important as statutes, rules and regulations passed by the competent
legislatures and other bodies since they affect the public generally. It is well
known that the decisions of the superior courts while they settle the disputes
between the parties to the proceedings in which they are given are the sources of
law insofar as all others are concerned.
• According to Thibaut, if in any court a rule has been frequently and
constantly followed as law that court must follow these adopted rules as
law, whether they relate to simple forms or to the substances to
controversies, if they do not contradict the statutes, but yet only on the
points on which the former judgments agreed.
• According to Cardozo, I think adherence to precedent should be the rule
and not the exception.
• According to Salmond, the doctrine of Precedent has 2 meanings.
1. In a loose sense precedent includes merely reported case law which
may be cited and followed by the Courts.
 2. In a strict sense, it means that case – law which not only has a great
binding authority but must also be followed.
• Judicial precedent is an important source of law, but it is neither as
modern as legislation nor is it as old as custom. It is an important feature
of the English legal system as well as of other common law countries
which follow the English legal system.
• Judicial precedent (case law, or judge-made law) is based on the doctrine
of stare decisis.
• The method of taking precedents as source of law is called inductive
method, while the method of continental countries not following previous
decisions of the court is called deductive method.
Nature of Precedent:
• A president is purely constitutive and in no degree abrogative. This
means that judicial decision can make a law but cannot alter it. Where
there is a settled rule of law, it is the duty of the judges to follow the
same. They cannot substitute their opinions for the established rule of
law. Their function is limited to supplying the vacancies of the legal
system, filling up with new law the gaps that exist in the old and
supplementing the imperfectly developed body of legal doctrine.
• The Supreme Court states that a precedent is a judicial decision
containing a principle, which forms an authoritative element termed as
ratio decidendi.
• Function is only to supply vacancy and fill gap.
• “Stare decisis et non quieta movere”- To adhere to precedent and not
unsettle things which are settled. Apart from article 14 of the
constitution, the policy of courts is to stand by precedent and not to
disturb settled points. When the court has once laid down a principle
of law as applicable to a certain state of facts it will adhere to that
principle and apply it to all future cases where facts are substantially
the same. It should be invariably applied and should not ordinary be
departed from where decision is of long standing and rights have been
acquired under it unless considerations of public policy demand it.
Advantages of Precedent:
• Based on practical experience and can adapt to changing needs.
Precedents are more suitable and fit for the present time and
circumstances.
 • Convenient, provides settled law and saves labour of judges.
Precedents bring certainty in law, once decision is given in a case
there would be no need to repeat all precedents in any other case if
it resembles to the former case.
• Prevents error of judgment by individual judges. Precedents are the
best guide for the Judges: They play an important role in the
judiciary because the precedents are the guide lines for the courts.
• Prevents partiality on the part of judges
• Lawyers will take cautious view of the development of law
Authority of Precedent:
• The reason why a precedent is recognised is that a judicial decision is
presumed to be correct. That which is delivered in judgement must be
taken for the established truth.
• The practice of following precedence creates confidence in the minds of
the litigants. Law becomes certain yeh and known and that time itself is a
great advantage.
• Decisions are given by judges who are expert in the study of law. A
judicial decision is their authority for what it actually decides and not for
what can be read into.
• The scope and authority of a precedent should never be expanded
unnecessarily beyond the needs of a given situation. The only thing
binding as an authority upon a subsequent judge is the principal upon
which the case was decided statements which are not part of the ratio
decidendi are distinguished as obiter dicta and are not authoritative. The
task of finding the principle is fraught with difficulty as without an
investigation into the facts, it cannot be assumed whether a similar
direction must or ought to be made as a measure of social justice.