You are on page 1of 12








Under The Guidance of:

Submitted By:

Ms. Deepika Urmaliya

Ravi Pandey

Astt. Professor

Roll No. 95, Section B





In common law legal systems, a precedent or authority is a principle or rule established in a
previous legal case that is either binding on or persuasive for a court or other tribunal when
deciding subsequent cases with similar issues or facts. The general principle in common law legal
systems is that similar cases should be decided so as to give similar and predictable outcomes, and
the principle of precedent is the mechanism by which that goal is attained. Black's Law
Dictionary defines "precedent" as a "rule of law established for the first time by a court for a
particular type of case and thereafter referred to in deciding similar cases." Common law precedent
is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative
bodies), and regulatory law (regulations promulgated by executive branch agencies).
Case law is the set of existing rulings which have made new interpretations of law and, therefore,
can be cited as precedent. In most countries, including most European countries, the term is applied
to any set of rulings on law which is guided by previous rulings, for example, previous decisions of
a government agency - that is, precedential case law can arise from either a judicial ruling or a
ruling of an adjudication within an executive branch agency. Trials and hearings that do not result
in written decisions of a court of record do not create precedent for future court decisions.
The principle of stare decisis can be divided into two components.
The first is the rule that a decision made by a superior court, or by the same court in an earlier
decision, is binding precedent that the court itself and all its inferior courts are obligated to
follow. The second is the principle that a court should not overturn its own precedent unless
there is a strong reason to do so and should be guided by principles from lateral and inferior
courts. The second principle, regarding persuasive precedent, is an advisory one that courts
can and do ignore occasionally.1
In the common law tradition, courts decide the law applicable to a case by interpreting
statutes and applying precedent which record how and why prior cases have been decided.
Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by
which most courts are bound by their own previous decisions in similar cases, and all lower
courts should make decisions consistent with previous decisions of higher courts.2 For
example, in England, the High Court and the Court of Appeal are each bound by their own
previous decisions, but the Supreme Court of the United Kingdom is able to deviate from its
earlier decisions, although in practice it rarely does so.

Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004)$file/CivilLaw.pdf


Judgments of Supreme Court i.e. ratio decidendi and even obiter dicta are binding on all
courts and Tribunals within the territory of India as laid down in Article 141 of the
Constitution of India. Analysis of any judgment may show the following result:
[i] Ratio decidendi reasons for deciding the legal point, which is binding.
[ii] Obiter dicta decision on points not necessary to decide. It is binding.
[iii] Passing observations not required to decide the case but made in passing. They are
not binding.
The Bombay HC quoted the following observations of Earl of Halsbury in the case of
Qumin vs. Leathem ( 1901) AC 495 (HL) in Blue Star Ltd. vs. CIT (1996) 217 ITR 514 520.
Every judgment must be read as applicable to the particular facts proved or assumed to
be proved, since the generality of the expressions which may be found there, are not
intended to be expositions of the whole law, but governed and qualified by the particular
facts of the case in which such expressions are found and a case is only an authority for
what it actually decides
However, it must be pointed out that the Supreme Court while interpreting Article 141
examined the scope of the words all courts in India and held that they do not include the
Supreme Court itself. See Bengal Immunity Co. vs. State of Bihar (1955) 2 SCR 603. But the
Supreme Court also will deviate from its earlier decisions only in exceptional cases.
The precedent may not be binding when the judgment is per incurium i.e. in ignorance
of the law or contrary to the law or its own earlier decisions of own or by inadvertence.
It has been well accepted that though legally judgment of another High Court is not a binding
precedent, judicial comity or judicial discipline is invoked by court that in respect of
interpretation of Central Statutes a decision of another High Court should be followed though
judge may have a different view.


The Indian Judiciary is partly a continuation of the British legal system established by the
English in the mid-19th century based on a typical hybrid legal system known as the
Common Law System, in which customs, precedents and legislative are all components of the
law. The Constitution of India is the supreme legal document of the country. There are
various levels of judiciary in India different types of courts, each with varying powers
depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of
importance, in line with the order of the courts in which they sit, with the Supreme Court of
India at the top, followed by High Courts of respective states with district judges sitting in
District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the
bottom. Courts hear criminal and civil cases, including disputes between individuals and the
government. The Indian judiciary is independent of the executive and legislative branches of
government according to the Constitution.
The legal system currently in India bears a very close resemblance to what the British left us
with. As per the needs of the changing times changes and amendments were made, but the
procedure which is followed not has its roots in the era of British-India. Little did the traders
of the English East India Company while establishing their trade in India know that they
would end up establishing their rule for about 200 years here. But the evolution of law as it is
today did not come about in one go altogether. It was the Presidency Towns individually that
were first affected by this change in hands of the governance of India after which the steps
towards amalgamation of the judicial system were taken by the Charters of 1726 and 1753.
To improve upon this, under the Regulating Act of 1773 Supreme Courts in the Presidency
Towns and then under the Act of 1798 the Recorders Courts at Madras and Bombay were
established. These were ultimately replaced by the establishment of the High Courts under
the Act of 1861, which are still running in the country. It was only after independence in
1950 that the Supreme Court was established. Reforms and codifications were made in the
pre and post independence eras and are still continuing.

The present day judicial system in India is quite complicated. It consists of a Supreme Court
at its top, High Courts in the middle and the Subordinate Courts at the bottom. On January
26, 1950, the Federal Court gave way to the Supreme Court (inaugurated on January 28,

1950) under the new Constitution and thus began an exciting new era in Indian Legal History.
The Supreme Court, highest court of the land enjoys a very wide jurisdiction. Under Article
131 of the Constitution the Supreme Court has an exclusive original jurisdiction in cases arise
from the centre and the constituent States or between the States inter se. The Court even has
appellate jurisdiction in case of appeals from its lower courts. Under article 32 of the
Constitution the Court can issue directions, orders or writs for enforcement of the
fundamental rights granted to the people. The President in case of matters related to public
importance or treaties etc even seek the advice of the Supreme Court.
Second in the hierarchy come the High Courts. As mentioned above the first High Court in
the country was formed under the Act of 1861. But after independence the High Courts have
also become the courts of record with appellate and original jurisdiction. They have been
conferred the power to issue writs. The High Courts have superintendence over all the courts
within its territorial jurisdiction. The decisions of the High Courts become precedents and are
followed by the courts subordinate to it. Each State has its own High Court and a common
High Court for two or more States can also be made.


American conceptions of precedent developed and are best understood in the context of the
American common law tradition in which they have played a decisive role since the first
English settlement of America in the early seventeenth century. Old common-law attitudes
toward precedent are so deeply ingrained in the behavior of American lawyers and judges
that they hardly rise to the conscious level. This can produce a certain confusion, when
judges try to explain the principles behind their decisions, but there has been a remarkable
consistency in practice, maintained by attitudes passed from generation to generation within
the American legal profession.

Whether they are interpreting the common law, statutes or constitutions, American judges
respect their own precedents as a "principle of policy" rather than as an "inexorable
command." American judges find it easiest to overturn precedents when experience has
proved them to be unworkable or a long line of subsequent cases has gradually undermined
their foundations. They find it hardest to do so when property, contracts, or liberty is at stake.
Reason is the ultimate measure of the law, but judicial departures from precedent require
special justification to warrant the inevitable damage they cause to the settled expectations of
a law-abiding society.
In the United States, courts seek to follow precedent whenever possible, seeking to maintain
stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial
restraint, limiting a judge's ability to determine the outcome of a case in a way that he or she
might choose if it were a matter of first impression. Take, for example, the precedent set in

410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined a

woman's right to choose Abortion as a fundamental constitutional right. Despite the

controversy engendered by the decision, and calls for its repudiation, a majority of the
justices, including some conservatives who might have decided Roe differently, have invoked
stare decisis in succeeding abortion cases.
Nevertheless, the principle of stare decisis has always been tempered with a conviction that
prior decisions must comport with notions of good reason or they can be overruled by the
highest court in the jurisdiction.

The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling
usually signifies a new way of looking at an important legal issue. For example, in the
landmark case BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873
(1954), the Supreme Court repudiated the SEPARATE-BUT-EQUAL doctrine it endorsed in

163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored

stare decisis, renouncing a legal precedent that had legitimated racial Segregation for almost
sixty years.


The law of the United States comprises many levels of codified and uncodified forms of law,
of which the most important is the United States Constitution, the foundation of the federal
government of the United States. The Constitution sets out the boundaries of federal law,
which consists of acts of Congress, treaties ratified by the Senate, regulations promulgated by
the executive branch, and case law originating from the federal judiciary. Federal law that
conflicts with the Constitution is invalid.
The Constitution and federal law are the supreme law of the land, thus preempting conflicting
state and territorial laws in the 50 U.S. states and in the territories. However, the scope of
federal preemption is limited because the scope of federal power is not universal. In the
unique dual-sovereign system of American federalism (actually tripartite because of the
presence of Indian reservations), states are the plenary sovereigns, while the federal sovereign
possesses only the limited supreme authority enumerated in the Constitution. Indeed, states
may grant their citizens broader rights than the federal Constitution as long as they do not
infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual
"living law" of contract, tort, property, criminal, and family law experienced by the majority
of citizens on a day-to-day basis) consists primarily of state law, which can and does vary
greatly from one state to the next.
At both the federal and state levels, the law of the United States was originally largely
derived from the common law system of English law, which was in force at the time of the
Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in
terms of substance and procedure, and has incorporated a number of civil law innovations.
Alike the states, there is no plenary reception statute at the federal level that continued the
common law and thereby granted federal courts the power to formulate legal precedent like
their English predecessors. Federal courts are solely creatures of the federal Constitution and
the federal Judiciary Acts.3 However, it is universally accepted that the Founding Fathers of
the United States, by vesting "judicial power" into the Supreme Court and the inferior federal
courts in Article Three of the United States Constitution, thereby vested in them the implied
judicial power of common law courts to formulate persuasive precedent; this power was
widely accepted, understood, and recognized by the Founding Fathers at the time the
Constitution was ratified.4 Several legal scholars have argued that the federal judicial power
to decide "cases or controversies" necessarily includes the power to decide the precedential
effect of those cases and controversies.5
The difficult question is whether federal judicial power extends to formulating binding
precedent through strict adherence to the rule of stare decisis. This is where the act of
deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's
rulings will thereby bind itself and lower courts in future cases (and therefore also impliedly
binds all persons within the court's jurisdiction). Prior to a major change to federal court rules

Hughes, 13.
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as
moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).
Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 59.

in 2007, about one-fifth of federal appellate cases were published and thereby became
binding precedents, while the rest were unpublished and bound only the parties to each case.6

Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York:
Oxford University Press, 2008), 70-71.