Precedent

• Imp. source of law- neither as modern as legislation nor is it as old as

custom.
• England- more imp. than any continental country.
• Guidance/ authority- past decisions for future cases.
• Decision- gives new rule/ principle.
• Furnishes as auth. which under many circumstances binds a court to make
same decision in future or in a similar case.
• Doctrine of precedent- not known- India- before establishment of British
rule in India.
• Got judicial recognition U/s. 212 of Govt. of India Act, 1935.
• Position- clear- after 1950- doctrine got constitutional recognition.
• A.141- Law declared by S.C. shall be binding on all courts within territory of
India.
 Precedent Continues…..
• In most developed legal systems, judiciary
considered to be an imp. organ of State. In modern
societies, rights generally conferred on citizens by
legislation & main function of judiciary is to
adjudicate upon these rights. The judges decide
matters on basis of legislations & prevailing customs
but while doing so, they also play a creative role by
interpreting the law. By this exercise, they lay down
new principles & rules which are generally binding
on lower Courts within a legal system.
Application of Precedent in Indian Legal System
Criminal Justice System
Application of Precedent in Indian Legal System
Civil Justice System
 Kinds of Precedent
Authoritative Precedent
• Final & binding- all lower courts.
• Approval- lower courts- irrelevant.
• Source of law
• Judges- abide by it- whether they support or not.
• Binding- as a future judge in lower court must follow decision of a
previous judge in a higher court if case facts are similar.
Persuasive Precedent
• Judges- no obligation to follow- take into consideration while taking
decision.
• Acts as guiding force & helps to reach- conclusion.
• No legal power/ impact.
• Used as reference & depends on judge- to follow or not.
 Kinds of Precedent
Original Precedent
• Makes law- judge must come to a decision without following a
previous decision, as the facts- not come before a court before.
• Creates/ applies a new legal rule.
• Made- when no previous judicial decision on law point.
• Arises- when court has never taken a decision in a case & it has to
use its own discretion to reach on conclusion.
Declaratory Precedent
• Application of existing precedent in particular case.
• Involves declaring an existing law & putting into practice.
• No creation of new law. Simply utilization of an already prevailing
law.
• Good source of law as original precedent.
 Doctrine of Stare Decisis
• Stare Decisis- latin term.
• Means- “to stand by the things decided” or “to stand by the
decision”.
• Doctrine- used in all court cases & with all legal issues.
• Simply a principle/ instruction but not necessarily a rule that
can’t ever be broken.
• Means- Courts look to past for similar issues to guide their
decision. Past decisions- Precedent.
• Legal principle/rule- created by court decision.
• This Decision- becomes an example for judges to decide similar
issues later.
• Doctrine- obligates Courts to look to precedent when making
their decisions.
 Per Incurian
• Literal meaning- Carelessness.
• Means- ‘through want of care’.
• Decision of Court- mistaken.
• Decision of Court- not binding Precedent if given Per Incurian i.e.
without Court’s attention having been drawn to relevant auth. or
statutes.
• Decision of Court- not bonding- not to be followed as a thumb rule by
lower courts.
• When judgment pronounced without paying requisite attention to
relevant authorities/ statutes- said to be wrongfully decided & having
no force of law.
• Lower court- free to depart from an earlier judgment of superior court
where that earlier judgment was decided per incurian.
• Doctrine- exception to A.141 of Const.- embodies doctrine of
Precedents as a matter of Law.
 Res Judicata
• Phrase- evolved from Latin maxim- means ‘the thing has been
judged’.
• Issue before Court- already been decided by another Court
between the same parties.
• Court- dismiss case before it as being useless.
• Concept- applicable both- civil/ criminal Legal System.
• Once final judgment announced in lawsuit- subsequent judges
who are confronted with suit that is identical to or
substantially the same as the earlier one, they would apply
Res Judicata doctrine to preserve the effect of First Judgment.
• Doctrine- to prevent injustice to parties & to avoid
unnecessary waste of resources & time of Judicial system.
 Pre-requisites of Res Judicata
 Must be a final Judgment.
 Judgments must be on merits.
 Claims must be same in first & second suits.
 The parties in second action must be same as those in first.
• S.11 CPC- concept.
• Embodies- doctrine of Res Judicata- rule of conclusiveness of a
judgment.
• Enacts- once matter finally decided by competent court- no
party can be permitted to reopen it in subsequent litigation.
• Rule- puts an end to litigation otherwise parties would be put
to constant trouble/ harassment and expenses
 Ratio Decidendi
• Meaning- “the reason” or “the foundation for a decision”.
• Legal rule- legal reasoning behind judgment of judge or jury.
• Includes- all principles a court relies on- be they moral/ political
or social- to justify their reasoning for coming to a decision in a
case.
• Means- reason of decision.
• Gen. Principle- case is concluded or rule of law upon which
decision is founded.
• Acc. To Prof. Goodhart- R.D- nothing more than decision based
on material facts of case.
• Whether it is a material fact or gen. principle but at end R.D. is
rule of law expressly or impliedly treated by judge as a necessary
step in reaching his conclusion.
 Case Laws
• Bridges v. Hawkeshworth
Held- Rule applied “Finders Keepers”. The R.D.-
finders of goods is the keeper i.e. has right of
possession over it.
• Donoghue v. Stevenson
Held- Rule applied ‘Privity of Contract’. The
manufacture liable to consumer for his negligence
as he was manufacturing goods which is of such a
nature that it is incapable of inspection by retailer.
 Obiter Dicta
• Latin word- meaning- “things said by the way”.
• Opinion /remark- made by judge which doesn’t
form a necessary part of Court’s decision.
• While making decision- judge make
observations- not relevant to issues before him.
• Literally mean- something said by Judge by the
way, which doesn’t have any authority.
• Means- not binding.
 Difference between
Obiter Dicta & Ratio Decidendi
Ratio Decidendi
• May be described as a rule of
law applied by & acted on by
Court or rule which the court
regarded as governing the
case.
• Has a binding authority & is
binding on subordinate Courts.
• Goodhart- rule of law based
on material facts.
• rule of law expressly/ impliedly
treated by judge as a
necessary step in reaching
conclusion.
Obiter Dicta
• Statement made by Judge in
course of his Judgment which
may not be precisely relevant
to issues before him.
• No such authority. It is casual
expression by court which
carries no weight.
• Rule of law based on
hypothetical facts.
• rule of law stand by Judge
which was neither expressly
treated by him as a necessary
step in reaching his conclusion.
 Case Law
S.R. Bommai v. UOI
• Nine judges bench- S.C. held- secularism is one of the basic
structures of India.
• Justice P.B. Sawant & Justice Kuldeep Singh observed- social
Pluralism is one of basic structures.
• Justice K. Ramaswamy observed- that socialism/ social
Justice & fraternity- included in basic structure of
Constitution.
• Observations of learned Judges- obiter dicta as they are not
directly in issue in instant case.
• Ratio of case- that Secularism is one of the basic structures
of Constitution of India.
Do the Judges make Law or Declare Law
• Declaratory Theory- propounded by Hale & Blackstone &
supported by Doctor Carten.
• Acc- no new law created by Judge.
• Judges- don’t make law. Duty- to ascertain & declare-
What the Law is. They only discover existing laws,
particular principle that governs individual cases.
• Though- interpretation- give a new shape to existing law.
• Parliament only legislates & judges only explain & their
decisions are best evidence of What Law is.
• There is no such thing as judge made law.
 Declaratory Theory Continues…
• Theory- based on fiction that English Law is an
existing something which is only declared by
Judges.
• This theory is known as the traditional theory
of judicial Precedent.
 Legislative Theory
• Judges don’t declare law but make law in sense of manufacturing
or creating entirely new law.
• Judges – law maker & fulfill a function that is similar to legislator.
• Judges- law maker but their power of law making is not restricted,
it is strictly limited.
• Ex- judges can’t overrule a statute where statute clearly laid down
law.
• Judges legislation power- restricted to facts of case before him.
• Prof. Dicey- supports view & gives example of English Common law
which is made by judges through their judicial pronouncements.
 Conclusion
• Two theories- not exclusive of each other but
they are rather complementary.
• Both theories don’t represent whole truth.
• Judges develop law but can’t be said to
legislate.
• The Common Law- not made but has grown
with time.
 Merits
• Enables judges- to re-shape law acc. To social needs of
society
• Keeps a check on arbitrary discretion of Judges.
• Gives rise to practical & perfect law as it is based on
problems which arose in case.
• Law contained in case law is certain & easy to understand.
• Helps people to know complicated principles of law.
• Provides useful guidelines to judges. It saves time of judges
& advocated in searching relevant law from law books.
• Provides flexibility to law to adapt itself to new situations.
 Demerits
• Practically difficult to find out a particular case on particular
law point from law reports/ journals.
• Different Jurists- different opinions. Benthem- Precedent
not law as it lacks binding force of State. Austin- it is a good
law as judges are agents of Sovereign.
• Against PNJ that law must be known before it is actually
enforced but in Precedent after parties go to the court-
court decides matter that principle of law is evolved.
• Erroneous decisions of superior Courts create practical
problems for Subordinate courts as they are bound by
decisions of Superior Courts.
 Demerits Continues…
• Alleged- that Precedents are outcome of hasty
& quick decisions of Courts but this is not true
as judges are fully conscious of their duties.
• Some jurist says- precedent is arbitrary in
character because judges are not responsible
to anyone but it is not correct because they
are guided by public opinion.