precedents: concept and kinds

Introduction
• Precedents are the main source of law today.
They tend to strengthen the laws and judicial
system of the country and help us to improve
the legislative process of the country and
adapt it to the respective situations. However,
the basic problem with the application is the
unavailability of the appropriate records for
efficient implementation, which improves the
situation and makes the system more flexible.
 Meaning
• In general, the term "precedent" means "a
previous lawsuit or case which may be used as
an example of a rule for subsequent cases or
which may establish or justify a similar act or
circumstance".
 Definition
• According to Gray, "the precedent includes all that is said or
done which constitutes a rule for a subsequent practice".
• According to Keeton, "a precedent is a tribunal with special
authority."
• According to Salmond, "it basically only understands reported
case law that can be cited and followed by the courts."
• Strictly speaking, this case law must be followed, which is not
only very restrictive, but must also be followed.
• According to Bentham, the precedents are "laws made by
judges."
• According to Austin, the precedents are "judicial law".
• In the court system, this usually means giving directions or powers
to past decisions for future cases. Only decisions that establish a
new rule or principle are called precedents. The application of these
court decisions is governed by different principles in different legal
systems. These principles are known as the “Doctrine of the
Precedent”. For this case to be resolved, these precedents must first
be reported, possibly cited and possibly followed by the courts.
Second, the precedent must be followed in certain circumstances.
• Thus, we can conclude that the precedents are:
– Advice or authority on past decisions for future cases.
– Precedents must be reported, possibly cited and possibly followed up by
the courts.
– Opinio-juris must have precedents.
– These must be broadcast for a long time and must not violate applicable
law.
 Nature of precedent
• They must be purely constitutive and in no
way abrogative. This means that a court
decision can legislate but not modify it. If
there is an established rule of law, the judge is
bound to respect it. They cannot replace the
established rule of law with their opinion. The
function is limited to filling vacant positions in
legal systems and filling existing gaps with a
new law.
 History of the precedent
• Indian law is largely based on English common law due to the British
colony's long period of influence during the British Raj. Precedents
did not become a source of law until British rule in India. The Indian
Government Act of 1935 established a Federal Court and a Privy
Council, the decisions of which are binding on all other courts in the
country. This was the beginning of the use of precedents to reach
judgment, which over time became a precedent.

• Meaning of precedent: A precedent is an event or action that

occurred earlier and serves as a guide for similar situations.
According to Bentham, precedents are a matter of judicial law. A
specific precedent establishes a principle or rule that will be followed
when making similar decisions
 Advantages of the precedent
• Anyone who handles a similar matter is treated the same,
there is equality and fairness in justice.
• It serves as a guide in deciding future cases.
• Precedents save time and convenience, because once an
issue has been determined, it saves judges and lawyers time
and effort.
• Precedents help prepare new legal laws and adapt to
changing conditions in society.
• Cases that make them more practical.
• A precedent for binding sets a rule that helps maintain
stability.
 Against the precedent
• A precedent compels a lower court to obey, sometimes
forcing it to make fewer or harsher decisions than is
really necessary.
• It is rigid to change a precedent once it is followed.
• There are many precedents in many cases and therefore
it is difficult to set the right precedent in the right case.
• When distinguishing a case, it is not necessary to follow
a precedent.
• Some situations are not recognized under the previous
ones because they are not taken into account
 Classification of precedent
• Precedents are an important source of law. You have
enjoyed great authority at all times and in all countries.
• There are four types of precedent which can be
classified under the following headings:
1. Authoritative precedents
i. Absolute precedents
ii. Conditional precedents
2. Convincing precedents
3. The original precedents
4. Previous declarations
1. Authoritative precedents
According to Salmond, an authoritative precedent is one for
judges to follow whether they approve or not. Relevant
precedents are the legal sources of law. Authoritative
precedents establish the right to a particular rule of law that
gives them that effect. Relevant precedents should be
followed by the judges, whether or not they agree with them.
There are two types of authoritative precedent: absolute and
conditional.
i. Absolute:
In the case of absolutely authoritative precedents, they must be followed by
the judges, even if they do not agree. You have the right to implied obedience.
ii. Condition:
In the case of relevant precedents with conditional powers, the Court may, in
certain circumstances, disregard them. They are usually mandatory, but in
special circumstances they can be ignored.
2. Convincing precedents -
A compelling precedent is one that judges do not have to follow, but one that they will
heed and attach great importance to, as they seem to deserve. The convincing
precedents are only historical. If convincing precedents succeed in establishing laws,
they do so indirectly by serving as the historical foundation for a later decisive
precedent. As such, they have no legal force or effect. Compelling precedents can only
convince the judge, but it is up to the judge to follow them or not.
3. The previous originals -
According to Salmond, an original precedent is a precedent that creates and enforces a
new rule. In the case of the original precedent, this is a law of the future as it applies
now. The number of original precedents is small, but their importance is very great;
they alone develop the law of the land. They are good evidence for the future.
4. Previous declarations -
According to Salmond, a declaratory precedent is only the application of an already
existing rule of law. In the case of declaratory precedents, the rule applies because it is
already required by law. In the case of advanced countries, there are more reporting
precedents. A declaratory precedent is a good precedent as a source of law.
The legal authority of both is exactly the same. An original precedent is an authority
and a source of law, but original and declaratory precedents have their own value.