PRECEDENTS

• There are two types of law – statute law and common law. The first
category refers to the law passed by the parliament, it is written and
must be adhered to. The second type is the common law where
judges decide cases by looking at previous decisions that are
sufficiently similar and utilize the principle followed in that case. This
is called stare rationibus decidendi, usually referred to as stare
decisis, which means ‘Let the decision stand’.
• Precedent Defined in the ‘Oxford Dictionary’ precedent is defined as
‘a previous instance or case which is or may be taken as an example
of rule for subsequent cases, or by which some similar act or
circumstances may be supported or justified’.
• Gray- ‘A precedent covers everything said or done, which furnishes a
rule for subsequent practices’
• In the general use, the term ‘Precedent’ means some set pattern
guiding the future conduct. In the judicial field, it means the
guidance or authority of past decisions for future cases.
• Only such decisions which lay down some new principles are called
judicial precedents. It is the attribution of the authority that makes a
judicial decision a judicial precedent.
• The application of the judicial precedent is governed by the different
principles in different legal systems. These principles are called the
“Doctrine of Precedent
 HISTORICAL EVOLUTION OF
PRECEDENTS
• The doctrine of precedent has evolved from the English law and is pari materia to India. Though
being a concept of the judicial decisions and philosophies ‘precedent’ is considered as an
important aspect for emergence of setting examples by following the judge made laws in the
country.
• 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.
 IMPORTANCE OF PRECEDENTS
• Importance of precedent or previous decision is recognised as a
source of law since ancient times.
• Every developed legal system possesses a judicial system which has a
main function of adjudication of the rights and duties of the citizens.
• Judges perform creative function.
• Precedent plays a vital role almost in every legal system. Common law
mainly is based on judicial precedents.
 Kinds of precedents
• There are mainly four types of precedents:
1.Authoritative precedents - The authoritative precedents are binding in character. This
type of precedents has to be followed by courts which are lower in authority whether
they accept it or not. The authoritative precedents are regarded as legal sources of
law, and are very widely used. For example, a judgement passed by the Supreme
Court has to be followed by every other court in India as they are lower in hierarchy.
a. Absolute precedent: Absolute precedents can be defined as the type of precedents
which have to, compulsorily be followed by the judges, whether they accept it or
not.
b. Conditional precedent: Conditional precedents are binding in nature. They are not
compulsory for judges to follow. The judges can follow these if they want, and can
choose to not tak e them into account as well.
2. Persuasive precedents - The precedents that do not have legal force in
themselves. These precedents are just used by judges for reference purposes
only. They may be applied in the court and are only of guiding nature. These
precedents are also considered historical source of law.
• They can be of any nature – decisions by horizontal courts or lower courts,
foreign judgments, obiter dicta, dissenting judgement, treatises or law
reviews
3.Original precedents - According to Salmond , an original Precedent is one
which creates and applies a new rule. In the case of Original Precedent, it is law
for the future because it is now applied. The number of original Precedents is
small but their importance us very great, they alone develop the law of the
country. They serve as good evidence of law for the future.
4. Declaratory precedents - According to Salmond, a declaratory
precedent is one which is merely the application of an already existing
rule of law. In the case of declaratory precedent, the rule is applied
because it is already law. In case of advanced countries, declaratory
Precedents are more numerous. A declaratory precedent is good as a
source of law as an original Precedent.
 DOCTRINE OF PRECEDENTS
• Ratio decidendi and obiter dictum are two contents of judgment.
• Ratio Decidendi - Ratio decidendi literally means ‘reason for
deciding’. In the judicial context, it is the reason which is cited for
arriving at a decision in a case.
• It is this part of the precedent which has to be followed by the courts
in subsequent decisions but not the general observations of the court.
• As the facts cannot be similar in other cases, the observations
pertinent to the facts made by the judge cannot be binding in the
other cases though the similar laws are attracted. But the reasons for
arriving at a decision are binding.
• The ratio in deciding a case would evolve from the interpretation of a
statute, principles of natural justice, and the common law principles.
• Descriptive ratio -The descriptive ratio is the rationale or the reason
which helped the court to arrive at a decision. It is the original ratio
and is used as an aid in future cases.
• Prescriptive Ratio - On the other hand, the prescriptive ratio is the
way in which the descriptive ratio is used as a precedent in a future
case.
• Obiter Dicta - the opinion expressed by the judge in the court
or during pronouncement of judgment which does not have
any importance in the decision.
• This is not an important constituent to arrive at a decision
but is just used to describe the circumstances. They are the
incidental remarks made by the court while dealing with the
actual conflict between parties.
• If the dictum is a casual remark by the court, it does have
an effect on the parties or the subsequent cases. In another
scenario, certain obiter dicta have recommendatory or
persuasive value but do not bind anyone.
 CONVENTIONS
• International Treaties are most frequent means of creating international rules or standards
that States and other actors of international community are supposed to abide by.
• International treaties are also called conventions, protocols, covenant, "acts",
memorandum of understanding, statutes and so on.
• In the modern international law, the significance of 'international treaty' to create
international rules is highly increased –
1. Creation of international institutions or mechanisms to enforce international law - The
Rome Statute, Statute of ICJ and similar documents of several temporary or transitional
tribunals have provided the international law with 'firmly grounded institutions or
mechanisms' to enforce rules of it.
2. Enlarging and institutionalizing the 'universality' of human rights is one of the most
important achievements made by international treaties following 1945.
3. While treaties create obligation for the parties, the moral perspective they generate for
community of States and people as well is tremendous. The enforcement of treaty is
thus backed by the 'legal as well as moral sanction’.
• Basel Convention on Transboundary Movement of Hazardous
Wastes, 1989
• Known popularly as the Basel Convention, the convention aims for a
reduction in the transboundary movement of hazardous wastes. The
Convention sees to it that creation of hazardous wastes is minimized.
It also prohibits shipment of hazardous waste to countries unable to
dispose of the hazardous waste in an environment-friendly manner.
India ratified to the treaty in 1992 and included some provisions of the
Basel Convention in The Indian Hazardous Waste Management Rules
Act, 1989