Judicial precedent is a source of Law

Table of Contents

• Introduction
• Judicial precedents
• Types of precedents
• Relevance of judicial precedents
• Nature of judicial precedents
• Importance
o In the traditional legal system
o In the modern legal system
• Doctrine of Stare Decisis
• Authority of judicial precedents
• Merits and demerits of judicial precedents
Introduction

There are many sources from which we derive what we know to be as law. Law in layman
terms is nothing but a set of rules and regulations that we as a society agree to follow so that
we do not infringe on the rights of others and can safeguard our own rights. The right to
exercise one’s right stops when it infringes upon the right of another. The insecurity that is
felt among people once the concept of property and ownership came in was done away with
the help of law that placed three organs; the legislature to make law, the executive to
implement it and the judiciary to adjudicate on matters. These organs function in tandem and
are required to not interfere in the fields that are carved for another organ. While interference
can be natural to hold checks and balances, such interference cannot be done with any
malafide intention.

One of the sources of law are legislations which mean ‘rulemaking’ in Latin. It is one of the
primary sources of law and has a huge ambit with regard to authorizations. Customs form
another important part of the law. These have been carried down from generation to
generation and have been in practice since time immemorial. This kind of inheritance or
passing down from generation to generation is what constitutes a custom. Laws are based
upon these customs. Laws are a reflection of society and this makes it necessary to include
the various customs of the parts to protect the interests of a diverse culture. Judicial
precedents based on the principle of stare decisis are also a source of law as they offer a
backbone or support to rely on, in cases with similar facts. Treaties and conventions on an
international level are also used to make law as with increased globalization, all the countries
are required to interact with each other more than before. Justice, equity and good conscience
have always been what law and decisions must be based on. In the absence of any one of
these, the decision will be held to be arbitrary or unconstitutional and eventually struck down.

Judicial precedents

A precedent is a principle or a rule that was declared or laid down in a previous legal case. It
is binding or advisory on tribunals and courts when a similar case with similar facts arises
before it. These are nothing but previous legal decisions that have been taken by judges in
similar cases in these courts that provide an outline as to what must be held in similar cases
that arise before the court or similar cases that arise in lower courts or similar cases that arise
before a lesser bench. A lesser bench is when the number of judges is lesser than those that
decided the case that the new bench will be basing their decision on. In the 18th century,
the Government of India Act, 1935, held that decisions made in Federal courts and in the
Privy Councils would be binding on the courts during the reign of the British. Since the 18th
century, precedents have been a legal characteristic of the Indian legal system and have
helped many judges form decisions and reverse decisions that later on were found to be
arbitrary or mindless.

Types of precedents

1. Declaratory and Original: In declaratory precedents, the mere application of a rule

in a previous legal case is used. Original precedents result in the creation of new laws.
Here new laws are created and applied. An example can be where we considered that
the power to amend the constitution was not restricted till it was decided that limits
must be placed on the same and that all laws in the Ninth Schedule henceforth must
also be tested against the basic structure.

2. Persuasive: Here the precedent is not necessarily needed to be followed. The judge
will rely heavily on this case and take it into consideration. It is not directly
considered as a source of law but is seen as a form of historical precedents. This is
usually seen in High Courts, where the judgements in one High Court can be
considered as persuasive precedents in another. This can be seen when similar cases
arise in various High Courts the verdict can be made by relying upon judgments from
other High Courts. They will not be binding but will be persuasive and will act in
favour of the litigating party in whose favour the previous verdicts have been made.

3. Absolutely authoritative: In these cases, the verdict that has been earlier must
mandatorily be followed by the judge. Even if the judge thinks that it is a wrong
judgement they are required to follow that precedent because of sheer numbers. This
is usually seen in cases where the bench is smaller than the bench that decided upon
the precedent that the judge is relying on. This is also possible in cases of hierarchy,
where certain courts have to rely on decisions made by superior courts.

4. Conditionally authoritative: In this case, the precedents by a general rule are

considered authoritative but can be disregarded in cases of the parties appearing
before the Supreme Court. The decision can also be overturned. An example can be
where we considered that the power to amend the constitution was complete till it was
decided that limits must be placed on the same and that all laws in the Ninth
Schedule, henceforth must also be tested against the basic structure.

Relevance of judicial precedents

India has a unified judicial system with a single constitution. This means that there is only
one Judiciary that is responsible for the interpretation of the Constitution. The Apex Court is
the ultimate interpreter. This is a part of the basic framework of our Constitution. We are
Federal with a strong Centre, unlike the United States where they follow federalism in the
true sense. This was done with the view of ensuring that the various provinces while having
their own State Legislatures are held together by a strong centre. This was to make sure that
riots and protests do not break out in the newly formed nation that had not only been ruled by
the Britishers but had also recently witnessed a partition that resulted in a refugee crisis as
severe as the refugee crisis in Europe after the Second World War. The person who is best
equipped to make a decision is the Supreme Court and its judges. There arises no question as
to who the most effective, appropriate and the only body must be, while interpreting the law.
It is the Supreme Court. In these cases, judicial precedents allow us to make sure that the law
of the land is uniform.

Nature of judicial precedents

• They must be purely constitutive and not abrogative in nature. Hence, while a judicial
decision can make a law it cannot alter it.

• When there is a settled rule of law, the judge must adhere to the same.

• A judge cannot substitute their opinions for the established rule of law and make
decisions based on what they think should be happening, should have happened or
could have happened.

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

Importance

The primary function of the Judiciary is the settlement of disputes. Initially, while
adjudicating, the courts are guided by customs and their own sense of justice. Later on,
legislations become the main source of law and the Rule of Law is what judges base their
decisions on.

1. Inductive method– A great amount of reliance is placed upon the decisions of the
judges in this method. The judges look into previously decided cases in the same or
superior courts before giving a final judgement, of a similar nature that have already
been adjudicated upon before. They consider general rules and principles from the
previous case and apply them on the cases before them. They then decide accordingly.
This is known as the Inductive method.

2. Deductive method– In this method, a great amount of reliance is placed on

legislatures and the enacted statutes. It can be seen as a kind of positivist approach but
most judges are now free to interpret the law in any way they see fit to favour justice,
equity and good conscience. In such a system, the cases are decided on the basis of
the enacted legislation and statute that are codified and the judges decide cases on the
basis of these statutes. Here the judges do not decide on the basis of previously
decided cases.
In the traditional legal system

The importance of the decisions as a source of law was recognized in very early times. Sir
Edward Coke, in the preface of the sixth part of his report, had mentioned that Moses was the
first law reporter. Even in the religious scriptures, it has been stated that the path followed by
virtuous men must be passed on from generation to generation. This is the idea behind
precedents. In the Babylonian empire and the Chinese dynasties, the judicial decisions were
considered to be a source of law.

In the modern legal system

Among the modern legal systems, the Anglo – American law is judge made law. It is also
known as ‘Common Law’. It has developed only through judicial decisions. Most branches of
law, such as torts, have been created exclusively by judges. The Constitutional law of
England and in specific the freedom of citizens has been developed through judicial
decisions. Not only in municipal but also in international law precedents are given immense
importance. The decisions given by the International Court of Justice are an important source
of international law. These precedents have been recognized by the International Court of
Justice in Hague under Article 38(2)(d) of the Statue of the International Court of
Justice. Article 59 of the same convention expresses that the decisions of the court only have
persuasive value for future cases and therefore hints at the fact that the International Court of
Justice is not bound by its own decisions in deciding factually similar cases in future. It holds
that the decision is only binding upon the parties to the case.

Doctrine of Stare Decisis

Stare decisis is the legal principle which requires judges to abide by and respect the
precedents laid down by similar prior decisions. The Latin maxim, Stare decisis et non quieta
movere which means, “to stand by decisions and not disturb the undisturbed” forms the basis
of this legal principle. In the legal context, judges interpret as meaning to not disturb already
settled matters to allow for continuity. If varying judges gave their opinion in different
matters in different courts, having similar facts would lead to chaos and many parties would
feel like their rights have been infringed and they would feel helpless and like justice has not
been served to them. This doctrine is basically a rule or a requirement that a Court must
follow the rules established by a superior court.

Verdicts that need to be seen as having a binding precedent is not valid in most civil law
jurisdictions as it is seen a bare reading of the text as interfering with the right of judges to
interpret the law and the right of the legislature to frame the 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. As a
concept, discretionary power is one which allows the decision-maker to apply their own
subjective assessment in choosing between several reasonable options. As there are no
technically correct choices in such a determination, discretionary power is by nature, broad
and opens up a whole array of choices. Discretionary power, especially if capable of effecting
far-reaching consequences, should not be given to just one person. In the rare instance that it
is conferred on a single person, there have to be considerable checks on the person to control
the manner in which it is exercised. Therefore, a judges’ right to interpret law does not
preclude the adoption of a small number of selected binding case laws.

Authority of judicial precedents

There are cases which have questions that are required to be answered on the basis of
principles of law that are in the text of the constitution. Such principles are deduced by way
of recognizing what the material facts of the case are so that a set of principles that can be
generally used is formed. The principle that comes out as a result of such a case is not
applicable only to that case, but to cases which are essentially similar to the decided case in
their major facts as well as features. This principle is called Ratio Decidendi. The issues
which do not require the determination of general principles and are answered on the
circumstances of the particular case do not lay down any 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 the
binding effect on a precedent. It is for the judge to determine the Ratio Decidendi of the
decision and the method of application of the Ratio Decidendi to the case which he is going
to decide. This gives an opportunity to him to mould the law according to the changed
conditions.

Merits and demerits of judicial precedents

There is a reason for the decision of a case, whether we understand it or not. It is necessary
that the same is followed henceforth. Settled disputes must not be argued upon again as it
results in a waste of the court’s time. Precedents are based on customs and are therefore
reflective of public opinion. It gives certainty to the law. While the law lays out certain
situations, these precedents account for those factors that cannot be factored into theory. It
guides judges to think practically without prejudice. Certain important issues may not be
raised in precedents that might cost a party the case, a lower court cannot overturn the verdict
of a higher court. Sometimes the decision itself can be wrong but cannot be overturned.

Conclusion

The use of precedents in the legal system is important for various reasons. Precedents serve
as a reminder and as a base to build on cases.