PRECEDENTS

 A precedent means a previously decided case which

establishes a rule or principle that may be utilized by a
court or a judicial body in deciding cases. Judicial
judgment is based on the ‘doctrine of stare decisis’,
namely to “stand according to the decision already
made”. The ‘doctrine of stare decisis’, states that the
judgment of the court is an example to be followed in
future cases of a similar nature. The use of precedent
helps to gain confidence in the litigation judicial
system. Stare decisis is a policy adopted by the court to
stand by a precedent.
 TYPES OF PRECEDENTS
There are different types of precedent within the law.
1. Original Precedent
The first is ‘original precedent’ which refers to a case having a point of
law which has never been decided before, then the decision of the
judge in such a case forms an original precedent. In such a case the
judge has to reason by analogy and look at cases that are similar and
are closest in principle and thus arrive at a judgment by using similar
reasoning.
2. Authoritative or Binding Precedent
As the name suggests authoritative precedent or decision is one
which judges must follow whether they approve it or not. It is also
known as mandatory precedent or binding authority. A court lower in
the hierarchy follows and honours the findings of law made by a court
higher in the hierarchy. The decisions of lower courts are not binding
on courts higher in the system. Lower courts are bound by precedent
(that is, prior decided cases) of higher courts within their region.
3. Persuasive Precedent
And a persuasive decision or precedent is one which the
judges are under no obligation to follow but which they will
take into consideration and attach as much weight as it
deserves. It is a precedent that the court need not follow,
but may consider when a decision is being made as it is
relevant and might be useful. Persuasive precedent comes
from many places. Courts lower in the hierarchy can create
a persuasive precedent. These cases could be cases that are
decided by lower courts, or courts equivalent in the
hierarchy or in some exceptional circumstances, cases of
other nations, judicial bodies of the world etc. Once a
persuasive precedent has been adopted by a higher court it
becomes a binding precedent for all the lower courts that
time onwards.
 TWO RULES APPLY TO THE PRINCIPLES OF
JUDICIAL PRECEDENT
1. The first rule states that a court which is lower in a
hierarchy is completely bound by the decisions of the top
courts.
2. The second rule states that high courts are generally
bound by their judgments in cases relating to preceding
cases.
Supreme Court
The Supreme Court is the supreme authority and its decisions
are binding on all other courts. Article 141 of the
Constitution states that any law decided by the Supreme Court
shall be binding on all courts of the country.
Article 141 states that all courts are legally bound to the
judicial decisions of the Supreme Court except for the Supreme
Court itself. The Supreme Court is not bound by its own
decisions.
However, the Supreme Court holds past decisions cannot be
changed, except on certain circumstances. If the earlier
decision is found to be wrong, the Supreme Court can change
it.
High Court
The decisions of the High Court are binding on all subordinate
courts. In case of conflict between two benches of the same
authority, the later decision of the high court is followed. The
higher the number of judges on a bench, the greater their
authority. The decision of one High Court does not bind on
other High Courts.
 THE BINDING ELEMENT OF A CASE
It is not the entire judgment that is binding on the lower
courts but only the ratio decidendi. The ratio decidendi of
a case is the underlying principle or legal reason on
which the result of the case depends. This ratio is different
from the relevant facts and arguments (Obiter dictum)
which are not binding. We are actually concerned with
legal principles that can be extracted from the case which
is known as the ratio decidendi.
1. Ratio decidendi: – The ‘ratio decidendi’ is derived
from a Latin word meaning reason for the decision. It
consists of a rule or principle established and
formulated through judgment. The principle applies in
all future decisions that create the same facts; the fall
in the ratio is binding on all lower courts of the
country.The ratio or cause of decision making is
deducted from the facts of the case and subsequently
applied in all other cases, it forms the basis for
accepting a particular decision as precedent.
2.Obiter dictum: – An obiter dictum is an opinion or
comment made by a judge that does not form an
essential part of a court’s decision. Obiter dictum is a
Latin word that means the way things are done. The
Obiter dictummentions some opinions, examples,
statements, observations, etc., which are made by the
judge while making the decision. These opinions are
not binding on all other courts, while they are only
persuasive in nature.
 ADVANTAGES OF JUDICIAL PRECEDENT
1. All people dealing with the same case are treated
equally and there are equality and fairness of justice.
2. It serves as guidelines to decide future cases.
3. For example, time is saved and convenience increases
because the question once is already settled and this
saves the time and labor of judges and lawyers.
4. Precedents help formulate new statutory laws and
adjust to the changing circumstances of society.
5. Cases that make them more practical.
6. The binding precedent establishes a rule that helps
maintain stability.