CASE-LAW

TECHNIQUE

PRECEDENT
PRECEDENT - MEANING
 Judicial Precedent is primarily a decision of a Court of Law cited as an authority for deciding a similar state of fact in
the same manner or on the same principle or analogy.
 In the judicial field, the past decision of court stands as guidance for present and future decisions.
 If the court lay down some new rule or principle they are called judicial precedent.
 The doctrine of precedent declares that cases with similar materials must be decided the same manner.
(Life may not recur in the same way – but legally material facts may recur and it is with these that the doctrine is
concerned)
 According to black's law dictionary:
Rule of law established for the first time by a court for a particular type of case and there after referred to deciding
similar cases.
 According to Keeton:
 A judicial precedent is judicial to which authority has in some measure been attached.
ARTICLE 141 OF THE CONSTITUTION OF INDIA

 The doctrine of precedent is expressly incorporated in India by Article 141 of the

Constitution of India, 1950. Article 141 provides that the decisions of the Supreme
Court are binding on all courts within the territory of India. Although there is no
express provision, but by convention the decisions of a High Court are binding on all
lower courts within the territorial jurisdiction of that High Court. Similarly, a decision
of a higher Bench, is binding on the lower Bench.
 All courts refer to all the other courts except Supreme Court, the Supreme Court is
not bound by its decisions.

 The Court hierarchy is critical for the doctrine of precedent to function effectively.
THE DOCTRINE OF PRECEDENT ONLY APPLIES WHEN THE COURT IS ACTIVELY
CONSIDERING A CASE. WHEN A CASE COMES BEFORE THE COURT, IN
GENERAL TERMS THE JUDGE WILL FOLLOW THIS APPROACH:

a. Ascertain the facts by hearing from all parties, witnesses and reviewing evidence.
b. Locate and review legislation that may be relevant and interpret the legislation, if
necessary.
c. Locate and review previous rulings, similar cases and precedents hat may be relevant.
d. Ascertain whether these precedents may apply to the case and its facts. If so, apply the
precedent as previously defined.
e. If no precedent applies to the case and its specifics – make a ruling that establishes a new
precedent.
f. Include in the judgement a ratio decidendi, providing legal reasons for the judgment.
 PRECEDENT – STARE DECISIS
 The Latin name for the doctrine of precedent is stare decisis (stand by that decided) meaning to stand by
things decided.
 Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already
issued.
 Stare decisis dictates that courts cannot disregard a determined standard and must uphold prior decisions
when ruling on future cases.
 Decision of a higher court of same jurisdiction as binding = court of another jurisdiction only persuasive.
 The degree of persuasiveness is dependent on:
a. The nature of the other jurisdiction.
b. The degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other
jurisdiction.
c. The date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as
authority for a given proposition.
d. The judge’s reputation may affect the degree of persuasiveness of the authority.
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to
its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court.
 “Those things which have been so often adjudged ought to rest in peace” – Lord Coke.
 The underlying logic of this doctrine is to maintain consistency and avoid uncertainty.
 The guiding philosophy is that a view which has held the field for a long time should not be disturbed only
because another view is possible.
 Mangalore Ore (India) Ltd v. Regional Asst. CST (1976) 4 SCC 124, 127 – it was opined that the doctrine
of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are
extraordinary or special reasons to do so.
 Ganga Sugar Corpn. v. State of UP (1980) 1 SCC 223, 233 – the judgements of this Court are decisional
between litigants but declaratory for the nation”.
BINDING PRECEDENT

 In Union of India v. Raghubir Singh, (1989) 2 SCC 754 – honourable

Court has enunciated the importance of doctrine of binding precedent
in the development of jurisprudence of law : “Taking note of the
hierarchical character of the judicial system in India, it is of paramount
importance that the law declared by this Court should be certain and
consistent.
CONSTITUENT ELEMENTS OF BINDING PRECEDENTS

i. It must indeed be a decision and not merely an obiter dictum or passing observation and
the binding feature of the doctrine depends on the relative status of the Courts
concerned.
ii. To apply the doctrine of precedent, the Court has three question to answer. First, is the
earlier case essentially similar in its significant facts to the latter one? Second, if it is
found to be similar, what rule is inherent in the earlier case? Third, how does the rule
apply to the latter case?
iii. A precedent however, becomes null and void and loses its authority when over ruled and
a new principle is authoritatively substituted for the old one. Over ruling of a precedent
is an act of superior jurisdiction and can be done by a Court of higher authority.
ADVANTAGES OF JUDICIAL PRECEDENT

1. It promotes stability, uniformity and certainty of legal administration.

2. A question already settled in a Court of law should not be disturbed res judicata (A thing adjudged. A rule
that a final judgement on the merits by a court having jurisdiction is conclusive between the parties to a suit
as to all matters that were litigated or that could have been litigated in that suit.)
3. The individual whims and fancies of a judge are brought under check.

4. It is based on the principle “like cases should be decided alike”.

5. In many instances, case-laws have played an important part in the interpretation of statute.

6. What is binding is the rationale for the decisions and not any finding of the judgement as a whole in the light
of th questions before the Court and not particular words or sentences have the binding effect.
KINDS OF PRECEDENTS

1. Original Declaratory – Original precedents are those which create or establish original or new rules o law.

2. Declaratory - Declaratory precedents ,ere;y reinerate and apply an already existing rule of law.

Salmond divides precedents as Authoritative and Persuasive

3. Authoritative Precedent is the one judges follow whether they approve of it or not.

While judicial precedent of a Supreme Court is binding an all Courts all over India, the judicial precedents of High Courts
binds all Courts under its jurisdiction.
4. Persuasive precedent – are those which he judges are under no obligation to follow but they will take such a
precedent into consideration. For example – the decision of Karnataka High Court is persuasive precedent in the High
Court of Bombay. English precedents though respected in India are only treated as persuasive precedents.
GOOD EXAMPLES OF PRECEDENTS
VISHAKHA AND OTHERS VS. STATE OF RAJASTHAN (AIR 1997 SC
3011)

 It is regarded as one of the landmark cases in India because this case was the first
of its kind to provide safety for women at their work places. The roots of the case
are attached to miss Bhanwari Devi who was a social worker and was brutally gang
raped by upper case men, as she opposed a child marriage .though she filed a case
she was unable to get a justice. Bhanwari Devi's determination attracted many
women and NGOs to file a public interest litigation (PIL) collectively under the
platform of Vishakha for the violations of article 14,15,19(1)(g) and 21.the
judgment given by the bench of J.S Verma, Sujata Manohar and B.N Kripal laid
down the Vishakha guidelines to protect women against sexual harassment at work
place ,later in 2013 it was transformed into a the sexual harassment of women at
workplace act,2013, which enabled one of the biggest victories of women.
PEOPLES UNION FOR CIVIL LIBERTIES VS. UNION OF INDIA 2001:
RIGHT TO FOOD

 This case made India the first nation to protect right to food under its constitution.
The case deals with providing food to the starving population through effective PDS
system. outside the city of Jaipur the gowdowns of food corporation of India (FCI)
were over flowing and were a rotten and villagers nearby were eating food on
rotational basis and also the government had 40 million tonnes above the buffer
stock, which lead the PUCL of Rajasthan to file a case and the judgment introduced
various acts like mid day meals, integrated child development system, annapurna
scheme and many more to protect the people below poverty line and provide food
to them at subsidized rates.
TO SUM UP

 Rules of precedent instruct judges that they are on or are not bound t decide the case before them in
a particular way.
 The rules do not tell the judges what the principles to act upon when the situation is unconstrained
by authority, for example when faced by a precedent in a lower court which is not binding.
 Then the judge has to choose between notions of justice, convince, public policy, morality, analogy
etc. perhaps taking into account the opinions of other judges.
 The various considerations may not point in the same direction, but conflict with each other.

 Judges do not generally dwell upon the fact that they make law; but they no longer hide behind the
‘fairy tale’ that the common law is a miraculous something from eternity and not made by anyone.
CONCLUSION

 it can be inferred that precedents play a very important role in filling the lacunas in law and various
statues, it also increases the faith in judiciary and make laws morally acceptable, it also brings
certainty to law.
 precedents are a very effective source of law as they are time efficient and also ensure equal justice,
but a good system needs to be developed with efficient and clear hierarchy of court that properly
defines the courts in various levels, India has adopted this system from common law but lacks in its
implementation because of many subordinate courts and a large no. of cases registered, hence the
hierarchy has to be more clear and proper record of all the cases. We have to categorize the different
courts available under certain categories and specify exactly whose decision is binding on whom and
maintain record of all the decisions that are declared as precedents.

This system helps to interpret law and make flexible changes according to necessity and changing
requirements.
CASE LAW TECHNIQUE
RATIO DECIDENDI
 MEANING OF RATIO DECIDENDI
 Ratio Decidendi can be defined as the material fact of the case plus the decision thereon.

 A decision has two aspects

1. What the judge decides between two parties
2. What principle the judge lays own

 Ratio Decidendi is the binding part of the decision.

 During the course of judgement, judge may make many propositions, but only those propositions on
which he depends or considers necessary are said to form the Ratio Decidendi.
 Ratio Decidendi literally means the reason for the decision or the reason for deciding.

 Example
 In a case, If A+B+C = X, where A is immaterial.
 Then, in future, where B+C (exists) = X or A+B+C = X

 Also A+B+C+D ≠ X ( where D is held to material fact) then the previous precedent is not a direct authority.
 LEGALLY MATERIAL FACTS

 Red hair
 Drove negligently
 Accident happened on Friday
 Claimant was injured
 Freckles
 Jumped red signal
 Dark colour
 Intoxicated
 Name was Smith
 Driving licence suspended
 Returning from work

 Late night driving

 WILKONSON V. DOWNTOWN, EWHC 1 (QB), 2 QB 57

 Issue
 The issue in question was whether compensation could be made for a person’s illness and suffering
following the false representation made by the defendant, D.

 Held

 D had wilfully made a false representation to W intending to cause some physical harm to W, by infringing
her right to personal safety, with no justification for doing so. Although D did not intend the harm which was
caused, this ‘wilful injuria’ is malicious in law. The injury caused to W was not too remote and could have
been foreseen, and therefore taken to have been intended, by D. As Wright J., stated at paragraph 59:
 “It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to
produce grave effects under the circumstances upon any but an exceptionally indifferent person, and
therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that
more harm was done than was anticipated, for that is commonly the case with all wrongs.”
 RATIO DECIDENDI - DISTINGUISHING
Non-restrictive distinguishing
 Where a court accepts the expressed ratio
decidendi of the earlier case, and does not seek to
curtail it, but finds that the case before it does not
fall within this ratio decidendi because of some
material difference of fact.
Restrictive Distinguishing
 A court cuts down the expressed ratio decidendi of
the earlier case by treating as material to the
earlier decision some fact, present in the earlier
case, which the earlier court regarded as
immaterial, or by introducing a qualification
(exception) into the rule stated by the earlier court.
 Wilkinson v. Downtown has not been cut down,
because the wide principle has commented itself to
the late judges.
 Wright J.S wide rule is thought to carry the law too
far, the decision can be restrictively distinguished.
 DIVERGENT OPINIONS

Ratio Decidendi = A+B must be present

 DIVERGENT OPINIONS AS TO MATERIAL FACTS

Ratio Decidendi ≠ A,B,C,D

Since this is not the view of any one of the Justices
OBITER DICTUM
 An Obiter Dictum is a remark or observation made by judge that, although included in
the body of the Court’s opinion, does not form a necessary part of the Court’s decision.
 Dictum = Latin for a statement = said in passing.
 In a Court, Obiter Dicta include, but are not limited to words “introduced by way of
illustration, or analogy or argument”
 Unlike ratio decidendi, obiter dicta are not the subject of the judicial decision, even if
they happen to be correct statements of law.
 Under the doctrine of stare decisis, statements constituting obiter dicta are therefore
not binding.
 Arum Kumar Agarwal v. State of Madhya Pradesh (AIR 2011 SC 3056)
 The Supreme Court in the case of held that obiter dicta is a mere observation or remark made by the Court, by way of
aid, while deciding the actual issue before it. The mere casual statement or observation “which is not relevant,
pertinent or essential to decide the issue in hand”, the Court said, did not form the part of the judgment of the court
and had no authorities value.

 Madhav Rao Jivaji Rao Scindia v. Union Of India (AIR 1971 SC 530)
 In the case of the Apex Court while stating about the relevancy of obiter dicta held that it is difficult to regard a word,
clause or an expression occurring in a judgment as the full exposition of law even if it is not answering the direct
questions of law to the case in hand.

 S.R.Bommai vs union of India, 1994 AIR 1918

 The nine judges bench of the supreme court unanimously held that secularism is one of the basic structure of the
constitution of India.
 Justice Swant and Kuldeep Singh observed that social pluralism is one of the basic structure. While justice
Ramaswamy observed that socialism, social justice and fraternity are included in the basic structure of the
constitution.
 The observation of the learned judges are obiter dicta as they are not directly in issue in the instant case. The ratio of
the case is that secularism is one of the basic structure of the constitution of India
 DIFFERENCE
RATIO DECIDENDI
 Ratio decidendi may be described as rule of law
applied by and acted on by the court, or the rule
which the court regarded as governing the case.
 The ratio decidendi has binding authority and is
binding on subordinate courts.
 According to Goodhart, the rule of law based on
material facts are ratio decidendi.
 Ratio decidendi is a rule of law expressly or
impliedly treated by the judge as a necessary step
in reaching the conclusion.
OBITER DICTA
 Ratio decidendi is a rule of law expressly or impliedly
treated by the judge as a necessary step in reaching
the conclusion.
 An obiter dicta has no such authority. It is a casual
expression by the courts which carries no weight.
 According to Goodhart, the rule of law based on
material facts are ratio decidendi. The rule of law
based on mere hypothetical facts are obiter dicta.
 An obiter dicta is a rule of law stand by a judge which
was neither expressly or impliedly treated by him as a
necessary step in reaching his conclusion.
 CONCLUSION

i. Ruling based upon hypothetical facts is obiter.

ii. obiter dictum is an opinion not necessary to a judgment and is an observation as
to the law made by a Judge in the course of a case, but not necessary to its
decision and therefore of no binding effect it is a ‘remark by the way’. It is the
ratio decidendi which has the binding effect and the precedent value.