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Jamia Millia Islamia

(A Central University by an Act of Parliament)

Faculty Of Law
B.A. LLB (H) Self- Finance

Vth Semester

Assignment

Topic – Judicial Precedent

Submitted By – Harshita Negi

Submitted To – Dr. Eqbal Hussain

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ACKNOWLEDGEMENT

Firstly, I would like to thank my teacher, Dr Eqbal Hussain for giving me

this opportunity to do this wonderful project on the topic: “Judicial
Precedent”, which also helped me in doing a lot of research and I came to
know about so many new facts and rules related to subject of Jurisprudence.

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INDEX

Introduction to the topic...................................................................Page No. 4

General Principles............................................................................Page No. 5

Ratio Decideni & Obiter Dictum....................................................... Page No. 5

The development of Precedent ......................................................... Page No.7

The development of Precedent in India............................................. Page No. 8

Merits Of Precedent ........................................................................ Page No. 10

Conclusion......................................................................................Page No. 11

List Of Cases.................................................................................. Page No. 12

Bibliography..................................................................................... Page No. 13.

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INTRODUCTION

Sources of law are generally discussed to find out the validity and application of a particular
law. Salmond defines it as that, from which a rule of law derives its force and validity. Source
of law is the will of the state as marked in statutes and decisions of court. Sources of law can
be distinguished on the basis of their enforceability. On the basis of the source, the rule has,
either an authoritative or a persuasive character. Former category includes legislation,
judgment of higher courts, long running customs and is known as legal sources of law.
Whereas, latter includes opinion of jurist, usages, concept of natural law and morality and is
known as extra legal source of law. In the modern state, law is generally created by a formal
legislation or judicial decision or by the act of a subordinate person or group of persons
acting within the limits of delegated authority. However, the role of un authoritative sources
cannot be denied in creation of new law.

The role of courts in development of law cannot be ignored. Specially, in a country like
England, which doesn’t have a written constitution, the whole common law has developed by
the recognition and application of new rules laid down by the courts. It is a principle in
common law that any principle involved in the judicial decision has the force of law and is
binding on other subordinate courts in their subsequent decision. These new principles/rules
have binding force and are treated as an ideal to decide subsequent cases and are known as
Precedent.

Judicial precedent or decisions is a process which is followed by the judges to take the decision.
In Judicial precedent, the decision is taken by following the similar cases happened in the past. So
judicial decision is based on the principle of stare decisis i.e. “stand by the decision already
made”.

There is a term called the doctrine of stare decisis which states that the court’s decision becomes a
precedent to be followed in future cases of a similar nature. The reason why a precedent is
recognized is that the verdict of the judiciary is assumed to be correct. The use of precedents
helps the litigant gain confidence in the judicial system. The administration of the judicial
decision becomes just and fair.

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General Principle of Doctrine of Judicial Precedent

There are two rules that apply to the doctrine of judicial precedents:

1. The first rule says that a court which is lower in a hierarchy is completely bound by the
decisions of courts which are above it.

2. The second rule states that higher courts are bound by their own decision in general in
matters of related to precedence.

Nature of precedents

They must be purely constitutive and not abrogative at all. This means that a 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.

The function is limited to supplying the vacancies of the legal systems, filling up with new
law the gaps that exist.

Stare Decisis

Stare decisis is the legal principle by which judges are obliged to respect the precedents
established by prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb
the undisturbed.” In a legal context, this is understood to mean that courts should generally
abide by precedents and not disturb settled matters.

This doctrine is basically a requirement that a Court must follow the rules established by a
Court above it.

The doctrine that holdings have binding precedence value is not valid within most civil
law jurisdictions as it is generally understood that this principle interferes with the right
of judges to interpret law and the right of the legislature to make law. Most such systems,
however, recognize the concept of jurisprudence constante, which argues that even though
judges are independent, they should judge in a predictable and non-chaotic manner.
Therefore, judges’ right to interpret law does not preclude the adoption of a small number of
selected binding case laws.

Authority of Precedents

The authority of a decision as a precedent lies in its Ratio Decidendi.

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Ratio Decidendi and Obiter Dictum

There are cases which involve questions which admit of being answered on principles. Such
principles are deduced by way of abstraction of the material facts of the case eliminating the
immaterial elements. The principle that comes out as a result of such case is not applicable
only to that case, but to cases also which are similar to the decided case in their essential
features. This principle is called Ratio Decidendi. The issues which need the determination of
no general principles are answered on the circumstances of the particular case and lay down
no principles of general application. These are called Obiter Dictum.

It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding
effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision
and to apply it on the case which he is going to decide. This gives an opportunity to him to
mould the law according to the changed conditions by laying emphasis on one or the other
point.

So now we can understand how the Precedent came into the legal system and what was the
need of such kind of development . The development could be shown like this.
The Source of law is the reason or wisdom of the courts Precedents.
In common law legal system, the law is created and/or refined by judges: a decision in the
case currently pending depends on decisions in previous cases and affects the law to be
applied in future cases.

↓↓

[Principle of “Stare Decisis”]

“stare decisis et non quieta movere”

"to stand by and adhere to decisions and not disturb what is settled.“

↓↓ Law of
Precedent

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THE DEVELOPMENT OF PRECEDENT

The concept of Precedent gained recognition in the kings’ court in the form of ‘Law Reports’
being kept, as evident from the previous chapter.

But even in the mid-nineteenth century, a judge of first instance was not deterred in holding a
Chancery appeal as a mistake and he was not bound by it. This is evident from the case of
“London Street Tramways Co. v. London County Council1” wherein it was held that “the
former rule that the House of Lords were absolutely bound by its previous decisions was not
completely settled until the end of the Nineteenth Century.

The development of the concept of Precedents can be better explained with the help of
celebrated cases. First being the case of Quinn v Leathem 2wherein the concept of treating
conspiracy to injure as a legal wrong was recognised. "It is," said Lord Macnaghten, "a
violation of legal right to interfere with contractual relations recognised by law if there be no
sufficient justification for the interference.”. In the abovementioned case, the celebrated case
of Allen V. Flood3 was discussed in detail but was not strictly followed. So we can see that
the practice of citing previous cases was not alien and was given its due.

Then there was the celebrated case “ Donoghue v. Stevenson4” in which the principle of
neighbourhood was defined which was further upheld in cases involving negligence and so
on which shows how a principle laid down in one case had a binding effect on so many other
cases which in turn created a law and it also shows how such innovation of law has helped in
the development of social justice because without such innovation, the law would be poorer,
and Parliament may not have taken such a bold step for the greater good. Similarly in the case
of Ryland v. Fletcher5 the principle of no fault liability/strict liability was expounded which is
of great significance in todays society. This principle has found a lot of praise across the
globe and is cited as a complete authority in similar cases.

1
(1898) AC 375
2
[1901] AC 495
3
[1898] AC 1
4
[1932] All ER Rep 1
5
[1868] UKHL 1

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The development of Precedent in India

When India became part of the British Empire, there was a break in tradition and Hindu
and Islamic laws were supplanted by the common law. As a result, the present judicial system
of the country derives largely from the British system and has little correlation to the
institutions of the pre-British era.

Prior to the Indian independence, the doctrine of judicial Precedent was first recognised under
Sec. 212 of the Government of India Act, 1935. The Sec. provided that the law declared by
the federal court and by the judgment of the Privy Council shall be binding on all courts in
British India. The High Courts in India were bound by the decisions of the Federal Court and
Privy Council. But the Federal Court and the Privy Council were not bound by their own
previous decisions. The Federal Court was not bound by the decisions of the Privy Council
but with regard to other civil matters, Privy Council decisions were binding on the Federal
Court of India.

After the Constitution of India came into force, the Supreme Court became the
Highest Court in the hierarchy of courts in India. Therefore, the decisions of the English
Court have merely persuasive value and it is not obligatory for the Supreme Court to follow
them. It is not even bound by the obiter dicta of the English Courts. Similarly, the judgments
of the Privy Council are not binding of the Supreme Court . However, the decision of Privy
Council and Federal Court are binding over the High Court unless they are contrary to the
decision given by Supreme Court .

After the concept of Precedent was introduced in India by the britishers it was not
followed impartially because in similar situations different judgement were passed for
English subject and Indian subject, favouring the English. This had to be changed and was
done by incorporating article 141 in the Indian constitution which states that “The law
declared by the SC shall be binding on all courts within the territory of India”. which clearly
shows the evolution and importance following Precedent in a civilised society.
Now, we see how Art141 has helped in the development of Precedent by going
through some popular cases.

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Vishakha v. State of Rajasthan6 : In a landmark judgement, the Supreme Court did

not wait for to ratify an international treaty, but went ahead and laid down rules to protect
women from sexual harassment at the work place.
Here we see how the Supreme Court had made a law on which the government has
not enacted any law yet it is followed all over India because it has an authoritative effect on
all the court and so if any case similar to this arises the above mentioned judgement will be
followed.

The evolvement of precedent can be concluded in India with help of following cases:

In Re Berubari case the Supreme Court said “The preamble is not the part of the constitution
and therefore it cannot be regarded as a source of substantive power” where as in Golknath
vs state of Punjab7 case Supreme Court overturned its decision and hence we can see that
precedent was not blindly followed in India .Further we see that SC also said in Golaknath
case that parliament has no power to amend the constitution under art.368 which was again
overturned in Kesavananda Bharati v. The State of Kerala and Others8.But the orders of
this case was used as precedents in Minerva Mills Ltd. v. Union of India.

This shows that evolvement of precedents in India has been a systematic process and not a
blind-fold one, and it is still evolving.

6
AIR 1997 SC 3011
7
(1967) 2 SCR 762: AIR 1967 SC
8
AIR 1973 SC 1461
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Merits of the Doctrine of Precedents

It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone have
supported the doctrine on this ground. The say that there are always some reasons behind
these opinions, we may or may not understand them.

Precedents are based on customs, and therefore, they should be followed. Courts follow them
because these judicial decisions are the principal and most authoritative evidence that can be
given of the existence of such a custom as shall form a part of the common law.

As a matter of great convenience, it is necessary that a question once decided should be

settled and should not be subject to re-argument in every case in which it arises. It will save
the labor of the judges and the lawyers.

Precedents bring certainty in the law. If the courts do not follow precedents and the judges
start deciding and determining issues every time afresh without having regard to the previous
decisions on the point, the law would become the most uncertain.

Precedents bring flexibility to law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mold and shape the law according to the
changed conditions and thus bring flexibility to law.

Precedents are Judge made law. Therefore, they are more practical. They are based on cases.
It is not like statue law which is based on a priori theory. The law develops through
precedents according to actual cases.

Precedents bring scientific development to law. In a case, Baron Parke observed ‘It appears to
me to be great importance to keep the principle of decision steadily in view, not merely for
the determination of the particular case, but for the interest of law as a science.’

Precedents guide judges and consequently, they are prevented from committing errors which
they would have committed in the absence of precedents. Following precedents, judges are
prevented from any prejudice and partially because precedents are binding on them. By
deciding cases on established principles, the confidence of the people on the judiciary is
strengthened.

As a matter of policy, decisions, once made on principal should not be departed from in
ordinary course.

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CONCLUSION

Precedent is a distinct source of law. It not only creates new law but also provides solutions
for the contemporary problems. The quality of Precedent as a source of law is that the law
which flows from it is critically legal. This is not the case with the law passed by the
legislation. Although, the language of a statute is more formal in nature, it is the creation of
executive which is not a legal body. In case of legislation, law is enacted by the persons who
are not well versed with other law at domestic level and at international level. The situation is
different with Precedent . Here the law is made by judges who are having a sound knowledge
about the law is and what it ought to be. Further, the making of law by way of Precedent is a
quick process. Legislature takes a considerable time to enact the law. Then time is taken to
pass the law and finally the law is put into force. This is not the case with Precedent . Making
law by way of Precedent is a quick process. There exists no formality. A new law can be laid
down in each case if the judge so decides. Further, In case of legislation the government has
to take concern about the other parties who are supporting it and the consequences of the
statute on their vote bank. This is not the case with Precedent . Judges render judgment free
and fearlessly. They are not under any pressure. Generally, the decisions rendered by the
judges are meant for law reforms and how the law can be applied for the best interest of
deprived class. Precedent is an instant method of making new law as per the needs of the
society. No doubt, judiciary is more active and concerned about the rights of the citizens. Yet,
due to the applicability of doctrine of separation of powers judiciary generally keeps itself
from creating new laws. Many a times the courts have declared through its judgment that
their work is to interpret the law enacted by the legislature and they cannot interfere with the
work of the law making body.

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LIST OF CASES

London Street Tramways Co. v. London County Council.............. (1898) AC 375

Willis Vs. Baddeley....................................................................... (1810) AC 376

Quinn v Leathem............................................................................ [1901] AC 495,

Allen V. Flood......................................................................................,[1898] AC 1

Donoghue v. Stevenson..............................................................., [1932] All ER Rep 1,

Ryland v. Fletcher......................................................................, [1868] UKHL 1,

Vishakha v. State of Rajasthan................................................., AIR 1997 SC 3011,

Golknath vs state of Punjab......................................, (1967) 2 SCR 762: AIR 1967 SC,

Kesavananda Bharati v. The State of Kerala and Others........... AIR 1973 SC 1461,

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Bibliography

1. Edgar Bodenheimer, Jurisprudence; The Philosophy and Method of Law (5th edn.
Universal Law Publication, Delhi 2006).
2. G.W. Paton, A Textbook of Jurisprudence (4th edn. Oxford University Press, New
Delhi 2005).
3. P. J. Fitzgerald, Salmond on Jurisprudence (12th edn. Universal Law Publication,
Delhi 2006).
4. V.D. Mahajan, Jurisprudence and legal Theory (5th edn. Eastern Book Company,
Lucknow 2007).
5. Dr. N.V. Paranjape, Studies in Jurisprudence & Legal Theory (5th edn. Central Law
Agency, Allahabad 2009).
6. Chambers, Common Law (1911)
7. Odgers, Common Law of England Vol 2 (1920)
8. Pound, Spirit of the Common Law (1921)

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