PRECEDENTS: SOURCE

OF LAW
KANCHAN LAVANIA
ASSISTANT PROFESSOR, LAW
VSLLS, VIPS
IP UNIVERSITY, DELHI
What is precedent
 In simple terms, a judicial precedent is a judgment of a court of law in India
which is cited as an authority to decide a similar set of facts and which can be
used by the courts as a source for future decision making.
 According to Gray, "Precedent covers everything said or done, which furnishes a
rule for subsequent practice."
 According to Salmond, "In a loose sense, it includes merely reported case law
which may be cited and followed by courts."
 In general judicial sense, it means the guidance or authority of past decisions
for future cases. Only such decisions as lay down some new rule or principle
are called judicial precedents.
Historical Background
 In the ancient society, there was less disputes and there were very few
occasions to go to courts. Local courts like shashan, kula, shreni and puga
were existing at that time. They decided the cases falling within their
jurisdictions. There was little possibility of development of doctrine of
precedent due to lack of adequate sources to keep the record.
 In the medieval times also there was less scope of precedents. In the
absence of a well organized judicial system, no doctrine of precedent
developed in India as it developed in England.
 In the British rule, the present theory of precedent started developing. The
Government of India Act, 1935, explicitly mentioned that the decision of
Federal Courts and Privy Council will be binding on all the other courts
decision in British India. Hence, from 18th century till date precedent is a
characteristic feature of our legal system.
Position under Indian Constitution

 Article 141 of the Indian Constitution provides that,

 "The law declared by the Supreme Court shall be binding on all courts
within the territory of India.“
 In Article 141 the expression "all courts" has been used which creates
question that whether Supreme Court comes under the sphere of all
courts. That is to say whether Supreme Court is bound by its own
decisions or not.
 The most important instance of the rule that Supreme Court is not
bound by its own decisions is furnished by the case of Kesavananda
Bharti Vs State of Kerala.
General Principles of Precedents

 The High Courts in India are bound by the law declared by the Supreme Court.
 Decisions of the Supreme Court are binding only so long as they have not been
overruled by the Supreme Court.
 The decisions of a High Court are binding on all the courts below it within its
jurisdiction.
 The judgment of a particular High Court, is not binding on other High Courts. The
High Courts are the courts of co-ordinate jurisdiction. Therefore, the decision of
one High Court is only of persuasive value for other High Courts.
General Principles of Precedents

 In High Courts generally appeals are heard by a Single Judge, some appeals
such as murder, specials appeals etc. are heard by two judges. Different
High Courts have their different rules in this respect. When an appeal
involves some important and complicated point of law, it is referred to a
Larger Bench.
 A Bench of two judges is called the Division Bench. Three or more judges
constitute a Full Bench. The decisions of a larger bench are binding on a
smaller bench.
 A bench is not bound by the decisions of another bench of equal authority.
 The decisions of the High Court is binding on the Tribunals under its
superintendence throughout the territories concerning which it exercises
jurisdiction.
Judgments which do not have binding effect
under Article 141 of the Indian Constitution

 The judgment not founded on reasons.

 An Obiter Dicta of a case is not binding as it has a persuasive value.
 Judgments made on Per Incuriam cannot be used as precedent. Literal meaning
of per incuriam is resulting from ignorance.
 Judgments where point of law or particular question of law was not consciously
determined are also not binding.
 Court's observations on the facts of the case are not binding.
Merits of Judicial Precedents
 1. Consistency and predictability:
 Because of the presence of judicial precedents, the lawyers become able to
assist their clients regarding specific subject matter after observing the
precedents prevalent in such field. It provides guarantee that every case will be
treated and decided in a manner that is similar to pass decisions. There is an
element of consistency and predictability that everyone can rely upon it.

 2. Flexibility:
 Precedents bring flexibility in the legal system. The Supreme Court of India is
not bound by its own decisions. The rules settled by the Supreme Court in a
particular subject matter remain in force unless they have not been overruled by
the Supreme Court. This system creates a series of checks and balances in the
judiciary. Judges may not write the laws, but it is their job to interpret the law
as accurately as possible in every situation. They mold the law according to the
changed conditions and thus bring flexibility to the law.
Merits of Judicial Precedents
 3. Save time of the courts:
 Judicial precedents provide great convenience as it reduces the labor of judges
and lawyers. Once the question regarding some specific matter is resolved then
it is not required to re-argue the same question in the future similar cases. That
means judges can spend less time in deliberation because they already have
access to the decision making processes of others. This advantage can even
reduce the crime rate to some extent as it throws light on the consequences for
the wrong committed against the state.
 4. Prevent mistakes:
 Precedents guide judges and consequently, they are prevented from committing
errors which they would have committed in the absence of precedents. There is
lesser chance of mistakes when everyone stays on the same page. By deciding
cases on established principles, the confidence of the people on the judiciary is
strengthened.
Demerits of precedents
 1. Complexity:
 There are so many case laws thus it creates complexity. Every judge issues his
own perspective on matter to create more precedents. Judgments are
exceptionally long, and it becomes burden for the lawyers and judges working
on the similar matter to determine that what is applicable or not. It becomes
tedious task to find out relevant case law on particular matter.
 2. Possibility of overlooking of authorities:
 The vastly increasing number of cases has an overwhelming effect on the
judges and the lawyers, thus there is possibility of overlooking of authorities.
It becomes difficult to trace out the wide range of authorities on the very
point. Sometimes, the conflicting decisions of superior courts put the judges
of lower courts into a dilemma.
Demerits of precedents
 3. Rigid:
 The practice of precedents brings rigidity in the system because the
lower courts are bound by decisions of higher courts. The society is
not static and there are changes in social, economic, and other
circumstances with time. Changed circumstances may require a
different interpretation of law. In fact binding precedents can hinder
the development of law.
practical importance of judicial
precedents in India through Legislations
 In the landmark case of Vishaka v. State of Rajasthan (1997), the
court dealt with the issue of sexual harassment at the workplace.
 BACKGROUND:
 The immediate cause for the case was the brutal gang rape of a social
worker named Bhanwari Devi, in Rajasthan. As a part of her job, she
was stopping a child marriage of a nine-month-old girl. She was later
gang-raped by the girl’s father and his five friends in front of her
husband. On filing a criminal complaint against the offenders, they
were acquitted as everyone dismissed her claim. This incident caused
several women and NGOs to file public interest litigation under the
collective platform of Vishaka.
1. The Vishaka guidelines
 The court under this case observed that such incidents at the workplace were not
uncommon and there was an urgent need to find an alternative mechanism in the
absence of legislation protecting the fundamental rights of working women. Such
incidents were held to be violative of the fundamental rights under Articles 14, 15, 21,
and 19(1)(g).
 This led the court to draw upon international conventions and norms to pass a set of
guidelines that are popularly known as the Vishaka guidelines. The court exercised the
power granted to it under Article 32 to ensure the protection of the fundamental rights
in the absence of legislation in this field. The court also explicitly stated that the
guidelines would be binding as declared by Article 141 until legislation is enacted for
this purpose.
 Almost 15 years later, the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 was enacted. The Vishaka guidelines set out in the
above case laid the foundation for the Act.
2. Recognition of the third gender

 The issue of non-recognition of the third gender and several forms of

discrimination faced by the transgender community came into discussion in
the case of the National Legal Services Authority v. Union Of India &
Ors. (2014). It was argued that the non-recognition of the identity of the third
gender is a violation of the fundamental rights under Articles 14, 15, 16,
19(1)(a) and 21 of the Constitution.
 Because of this judgment, the parliament introduced a series of bills
recognizing the third gender and seeking to protect their rights. This finally
led to the enactment of the Transgender Persons (Protection of Rights) Act,
2019.
3. Gender justice – the criminalization of
triple talaq

 The Honourable Supreme Court, in the case of Shayara Bano v. Union Of India
And Ors. (2017), took into consideration whether the practice of triple talaq or
“instant divorce” is violative of the fundamental rights guaranteed by the
Constitution. After looking into the practice and the Islamic law, it was
established by the court that the practice of triple talaq is not subject to
public order, morality, or health as required under Article 25(1). The court
further held that the practice of ‘talaq-e-biddat’ clearly violates the
fundamental rights expressed under Articles 14,15 and 21 of the Constitution.
 After the court declared the practice to be unconstitutional and a criminal
offence, the President of India issued the Muslim Women (Protection of Rights
on Marriage) Ordinance, 2018
 Subsequently, the parliament passed the Muslim Women (Protection of Rights
on Marriage) Act, 2019 based on the Ordinance.