Judicial Precedent

Judicial precedent
• A precedent is a statement of law found in the decision of a su
perior Court, which decision has to be followed by that court a
nd by the courts inferior to it. Precedent is a previous decision 
upon which the judges have to follow the past decisions carefu
lly in the cases before them as a guide for all present or future 
decisions. 
• In  other  words,   ‘Judicial  Precedent’   means  
a judgment of a Court of law cited as an authority for deciding 
a similar set of facts, a case which serves as authority for the le
gal principle embodied in its decision. A judicial precedent is a 
decision of the Court used as a source for future decision maki
ng.
 What is the doctrine of judicial
precedent?
Why precedent?
•It is generally expected that there is a certain uniformity or
consistency in the decisions courts make.

•It would cause a great amount of doubt if cases having near

identical facts are being decided differently. Every person
seeking relief in a court expects the law to be predictable.

•It is for this reason why courts are generally bound by their own
decisions and decisions of courts ranked higher in the court
structure.
 Doctrine of judicial precedent
• The benefit of this doctrine is to provide certainty,
stability, predictability and uniformity. It increases
the probability of judges arriving a correct decision,
on the assumption that collective wisdom is always
better than that of an individual. It also preserve the
institutional legitimacy and “adjudicative integrity”.
It is flexible in nature, as there are ways to avoid
precedents. It provides equality in treatment and
thus prevents bias, prejudice and arbitrariness and
avoids inconsistent / divergent decisions.
 Doctrine of judicial precedent

•A precedent is a statement of law found in deci
sion of a Superior Court. Though law making is t
he work of the legislature, Judges make law thro
ugh the precedent. Inferior courts must follow s
uch laws. Decisions based on a question of law a
re precedents. Decisions based on question of fa
cts are not precedents.
 Union of India v. Raghubir Singh,
AIR 1989 SC 1933
• the Supreme Court held that the binding
precedent is necessary to be followed in order
to maintain consistency in judicial decision
and enable an organic development of the
law. It also provides an assurance to an
individual as to the consequence of
transactions forming part of his daily affairs.
•
Stare decisis and Art. 141, Constitution of
India
• The principle of stare decisis is embedded in latin Maxim
‘stare decisis et non quieta movere’, firmly entrenched in
British system of doctrine of binding proceedent and
embodied in Article 141 of the Consitution of India, in short
‘Constitution’ if provides that the law declared by Supreme
Court shall be binding on all courts within the territory of
India. The expressions ‘binding’ and ‘on all courts’ catch our
eyes. It is to be discerned as to what is binding and
determined whether the Supreme Court is bound by its own
decisions.
 Origin of Precedent
• Precedent originates from the doctrine of star
e decisis. Stare decisis means to abide by the d
ecisions. The doctrine of stare decisis brings ce
rtainty and conformity to the decisions of the 
court and to law.
 Meaning of Stare decisis

•  ‘Stare decisis’ means ‘to stand by decided cases’. We

have hierarchy of courts. The Supreme Court is at the
top of pyramid. It decides cases with a seal of finality.
The decision is an authority for what it actually
decides. What is of essence in a decision is it ratio,
and not every observation found therein, nor what
logically flows from the various observations made in
the judgment. The enunciation of the reason or
principle on which a question before a court has
been decided is alone binding as a precedent
Advantages of the operation of
precedent
 Consistency
• Bring consistency to the legal system
• Case with similar facts will be treated in the
same manner
• Prevents judges making random decisions
• Promotes justice and equal treatment
• Law remains the same, which helps people
plan their affairs
 Predictability
• Lawyers are able to advise their clients with
some degree of certainty
• Predictability is important in determining who
should qualify for Government help in funding
their legal action
• The Government does not fund cases which
have little chance of success as this would be a
waste of taxpayers’ money
 Original Precedents
• The doctrine allows for new or ‘original’
precedents to be created
• An original precedent makes legal provision
on a matter for which there was previously no
law
Disadvantages of the operation
of precedent
 Complexity
• Judgements can be complex and it can be
hard to decide the ratio decidendi of a case
 Volume
• It is difficult to research the law
• Hundreds of judgements are made every year
• This means someone may have to sift through
many volumes of law reports
 Uncertainty
• By using the mechanism of distinguishing
cases and other methods of departure, the
judges can avoid following precedents. This
causes uncertainty as to how cases will be
decided
 Rigidity
• An unjust precedent can lead to further
injustices. E.g. once an unfair precedent, it
cannot be overruled unless and until another
case of similar fact goes to the on appeal. This
might not happen for many years
• The law may be out of date and need
modernising
• Judges can be reluctant to change the law
 Unconstitutional
• It is often argued that judges are overstepping
their constitutional role by actually making the
law rather than simply applying it
• It is the role of Parliament to create law and
the role of the judiciary to enforce/apply it
 Undemocratic
• Only persons who are elected, that is, the
Government and MPs should be able to create
law. The judges are not elected and should
therefore not engage in law-making.
 Lack of Research
• Unlike legislation which is made with the
benefit of research by interested and
knowledgeable bodies, there is no
opportunity for the judge to commission
research or consult experts on the likely
outcomes of their decisions.
• Judges make their decisions based on the
arguments they hear before them in the
courtroom
Advantages of the methods of
avoiding precedent
 Potential for Growth
• Case law is not completely rigid because
judges are able to avoid precedent
– This gives judges the opportunity t modernise and
develop the law
Disadvantages of the methods
of avoiding precedent
 Uncertainty
• The possibility of judges avoiding precedent
makes the outcomes of cases uncertain
• This is not desirable. Because justice requires
that people are treated in the same way and
know how to conduct their lives within the
law
• Makes it problematic for lawyers advising
clients
 Non-Conformity with the
Separation of Powers
• When judges avoid following precedent,
unless they do so to conform to the
requirement of an Act of Parliament, they
inevitably create new law
• This goes against Montesquieu’s theory of
separation of powers
LEGISLATION
 LEGISLATION
• It is derived from Latin word legis which
means – law and
• Latum – “ to make” or “set”.
• Legislation means “ making of law”.
• It declares legal rules given by a competent
authority.
 SUPREME AND SUBORDINATE
LEGISLATION
• Legislation is supreme when it proceeds from
the sovereign power in the state and is being
repealed or controlled by any other legislative
authority.
 SUBORDINATE LEGISLATION
• It proceeds from any authority other than the
sovereign power.
• It is Legislation that depends on the
delegation of authority from other, superior,
legislation.
 KINDS
1. Colonial
2. Executive
3. Judicial
4. Municipal
5. Autonomous
 Colonial
• The British colonies and other dependencies were
conferred limited power of self-government in
varying degrees by the Imperial legislature.
• This kind of law could be repealed or altered by
British Government.
 Executive
• The legislature (Parliament ), often its rule making
power to certain departments of the executive organ
of Government.
• The rule made in pursuance of this delegated power
have force of law.
• This kind of law could be repealed or altered by
Government.
• In India it includes power to make rules, regulations
and bye-laws for administrative matters.
 Judicial
• In certain cases legislative power of rule
making is delegated to the judiciary and the
superior courts are authorized to make rules
for their own procedure in exercise to this
power.
• Also known as judicial legislation.
• Not precedents
 Article 145 of Constitution of India
• 145. Rules of Court, etc
• (1) Subject to the provisions of any law made by Parliament the Supreme
Court may from time to time, with the approval of the President, make
rules for regulating generally the practice and procedure of the Court
including
• (a) rules as to the persons practising before the Court,
• (b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals including the time within which appeals to the Court
are to be entered;
• (c) rules as to the proceedings in the Court for the enforcement of any of
the rights conferred by Part III;
• (cc) rules as to the proceedings in the Court under Article 139A;
• (d) rules as to the entertainment of appeals under sub clause (c) of clause
( 1 ) of Article 134;
• (e) any judgment pronounced or order made by the Court may
be received and rules as to the conditions the procedure for
such review including the time within which applications to
the Court for such review are to be entered;
• (f) rules as to the costs of and incidental to any proceedings in
the Court and as to the fees to be charged in respect of
proceeding therein;
• (g) rules as to the granting of bail;
• (h) rules as to stay of proceedings;
• (i) rules providing for the summary determination of any
appeal which appears to the Court to be frivolous or vexatious
or brought for the purpose of delay;
• (j) rules as to the procedure for inquiries referred to in clause (
1 ) of Article 317
 Municipal
• In this kind of legislation Municipal authorities
are allowed within their limitations and areas
to make bye-laws for limited purposes.
• e.g. : tax, land acquisition etc.
 Autonomous
• The State may sometimes allow private bodies
to make bye-laws for regulating the conduct
of their business.
• This power is conferred by the State.
• E.g. : Universities, Companies.
 Delegated legislation
• Delegated legislation, also referred to as secondary
legislation, is legislation made by a person or body other than
Parliament.
• Parliament, through an Act of Parliament, can permit another
person or body to make legislation.
• By Parliament giving authority for legislation to be delegated
it enables other persons or bodies to provide more detail to
an Act of Parliament. Parliament thereby, through primary
legislation (i.e. an Act of Parliament), permit others to make
law and rules through delegated legislation.
• The legislation created by delegated legislation must be
made in accordance with the purposes laid down in the Act.
 Importance of Delegated Legislation
• Firstly, it avoids overloading the limited Parliamentary timetable as
delegated legislation can be amended and/or made without having to
pass an Act through Parliament, which can be time consuming. Changes
can therefore be made to the law without the need to have a new Act of
Parliament and it further avoids Parliament having to spend a lot of their
time on technical matters, such as the clarification of a specific part of the
legislation.

• Secondly, delegated legislation allows law to be made by those who have

the relevant expert knowledge. By way of illustration, a local authority can
make law in accordance with what their locality needs as opposed to
having one law across the board which may not suit their particular area.
A particular Local Authority can make a law to suit local needs and that
Local Authority will have the knowledge of what is best for the locality
rather than Parliament.
• Thirdly, delegated legislation can deal with an
emergency situation as it arises without having to
wait for an Act to be passed through Parliament to
resolve the particular situation.

• Finally, delegated legislation can be used to cover a

situation that Parliament had not anticipated at
the time it enacted the piece of legislation, which
makes it flexible and very useful to law-making.
Delegated legislation is therefore able to meet the
changing needs of society and also situations
which Parliament had not anticipated when they
enacted the Act of Parliament.
 Control on delegated legislation
1. Procedural Control
2. Parliamentary Control
3. Judicial Control
 Parliamentary Control
• Parliament exercises control over delegated
legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of Parliament
the parameters with regard to delegated legislation.
• Further, there are scrutiny committees which
consider delegated legislation within a Bill as it
passes through the Houses of Parliament.
 Procedural Control
• It is not always possible for Parliament to exercise effective control over
delegated legislation. So, procedural safeguards are necessary:

• Methods of Procedural Control:

• Prior Consultation of Interests which are likely to be affected by the

proposed delegated legislation.

• Prior publicity of rules and regulations.

• Publication of delegated legislation being made mandatory.

 Judicial Control

• Delegated legislation is also subject to control through the

Court. A piece of delegated legislation can be deemed by the
Court to be ultra vires. This means that the body that created
the delegated legislation acted beyond the powers conferred
to them by statute. An example where a body would have
acted ultra vires would be if the delegated legislation goes
beyond what Parliament intended or where the procedural
rules to be followed in relation to the delegated legislation
have not been followed. Any Court action which is brought
challenging delegated legislation is done through the means
of Judicial Review. If the Court finds that a piece of delegated
legislation is ultra vires then that legislation can be declared
void.
 Criticisms of Delegated Legislation
• Delegated legislation is not without its criticisms.
• Firstly, it has been suggested that by having delegated legislation to make
and/or amend laws etc it lacks democracy as too much delegated
legislation is made by unelected people.
• Secondly, delegated legislation is subject to less Parliamentary scrutiny
than primary legislation. Parliament therefore has a lack of control over
delegated legislation and this can lead to inconsistencies in laws.
• In addition, delegated legislation therefore has the potential to be used in
ways which Parliament had not anticipated when it conferred the power
through the Act of Parliament.
• One further criticism of delegated legislation is the
lack of publicity surrounding it. When law is made
by statutory instrument the public are not normally
notified of it whereas with Acts of Parliament, on
the other hand, they are widely publicised.
• One reason for the lack of publicity surrounding
delegated legislation is because of the volume of
delegated legislation made and this results in the
public not being informed of the changes to law.
There has also been concern expressed that too
much law is made through delegated legislation.
 Sub - delegation
• Sub - delegation = When a body or person
receive delegated powers indirectly under a
statute.
• This appears in conflict with the general rule
that a delegate is not able to delegate further,
“delegatus non potest delegare.”
• In India sub delegation without express
authority is invalid.
 Conditional legislation
• When the legislature itself enacts the law and
gives to some other body only the power of
determining when it should come into force or
when it should be applied to a particular area,
there is no delegation of power instead it
would be a case of Conditional legislation.
 Codification of Laws
• Codification (law), the process of forming a legal code (i.e.
formalising the laws of a jurisdiction by setting them out in a
book of law, a codex).
• Codification means “ the reduction of the whole Corpus juris
so far as the particiable, in the form enacted law.
 Kinds
• A creative code is that which makes a law for the first time
without the reference of the other law. E.g.: IPC

• A consolidating code is that code which consolidates the

whole law – statutory, customary and precedent – on a
particular subject and declares it. E.g.: TPA.

• A code may be both creative and consolidating . It may make

a new law and consolidate existing law on a particular
subject. E.g.: Recent legislations.
 Merits
• 1. Certainty: By Codification law becomes certain.
• 2. Simplicity: The Codification makes law simple and
accessible to everybody.
• 3. Logical Arrangement: In the code law is logically arranged
in a coherent form. There are little chances of any conflict or
inconsistency.
• 4. Stability: The codification makes the law stable.
• 5. Uniformity: Codified laws have uniform application.
• 6. Planned Development: The planned development in a
country is possible only through codification.
• 7. Social Reforms: Even for the social reforms, the codification
is proving greatly useful. eg. Dowry Prohibition Act, 1961.
 Demerits
• 1. Rigidity: The Codification causes rigidity in the law. It is essential that
the law must keep pace with the time and should adopt itself to new
conditions. When law is once codified, there is little scope for such
change.
• 2. Incompleteness: The Codes are generally incomplete. It is not possible
to anticipate all the problems that might arise in the future.
• 3. Hardship: The Code generally gives uniform laws, applicable to all
within the territory of the country or a part of it. Its application rarely
varies on the grounds of convictions, customs and the habits of the
individuals. Thus, in some cases causes hardships.
• 4. Defective Codes: Certain defects are bound to remain in a code. They
cannot be removed except by a legislative amendment. It causes great
delay and inconvenience.
 Merits
• Law can be known with certainty.
• Evils of judicial legislation can be avoided.
• Codification is necessary to preserve customs
which favour public policy.
• It is necessary to bring about a sense of unity
in country.
 Demerits
• It brings rigidity in system.
• It cramps the free and natural growth of law.
• A code is a work of many persons and no wonder the
provisions of a code are found to be incoherent.
• Codification makes the law simple and thereby enables the
knaves to flourish.
• A code is likely to disturb the existing rights and duties of the
people by creating new ones.
• No code is complete and self sufficient.
 Legislation and Precedent
• a. In precedents, rules and principles are laid down
by inductive method. In legislation, the deductive
method is resorted to. The Courts take rules from
the statute and apply it to particular areas.
• b. Statute law is definite, brief, clear and easily
understandable. Therefore, in form it is superior to
precedent. In precedent, to know principles and
rules one will have to look into the details of the
case.
 Legislation and Precedent
• c. Legislation is general and comprehensive. Precedent has
none of those merits.
• d. Statute can makes rules for future cases which may arise,
in other words, a statute can lay down beforehand. A
precedent can lay down a rule when a case comes before it.
Thus, its emergence depends on litigation.
• e. The very aim of the legislation is to make law. The main
purpose of the precedents is to interpret and to apply the
law.
• f. Legislation is prospective and retrospective in nature.
Precedents are only prospective in nature.