Precedents as a source of Law.

A precedent is a concept or rule stated or established in a previous legal case. It contains prior legal decisions made by judges in comparable situations, and so serves as a guide for what must be done in similar circumstances in the future. In the 18th century, the Government of India act, 1935 held that decisions made in federal courts and Privy Council would be binding on the courts during the reign of the British. Since 18th century, precedents have been a characteristic of the Indian legal system and have helped many judges form decisions and reverse some, if found to be arbitrary or mindless.

The various types of precedents include declaratory, original, persuasive, absolutely authoritative and conditionally authoritative ones. In declaratory precedents, mere application of a rule from a previous case is used. Original precedents support creation of new laws and their application. Persuasive precedent is not necessarily needed to be followed. It is not directly considered as a source of law but is seen as a form of historical precedent.

For example, the judgement of one High Court can be seen as a persuasive precedent in another. The absolutely authoritative precedents must be mandatorily followed by the judge. The precedents by a general rule are considered authoritative but can be disregarded in some cases appearing before the Supreme Court, such precedents are considered conditionally authoritative.

The process of judicial decision making maybe deductive or inductive. The deductive method assumes that the legal application to any particular case is fixed and the judge must apply this rule as justice without any reference to his personal view. The inductive method on the other hand involves reasoning inductively, however the judge is bound by the decision of the courts higher than his own court.

Stare decisis is a legal principle which requires judges to abide by and respect the precedents laid by a similar prior decision. It is a latin maxim which means ā€˜to stand by the decisions and not disturb the undisturbedā€™.

There are cases that are to be answered according to the principles of law given in the Constitution. Such principles are deduced by way of recognising what the material facts of the case are so that general principles can be formed to be used in cases that are essentially similar. Such principles are called Ratio Decidendi. On the other hand, some cases do not require the determination of general principles and are answered according to the circumstances of the particular case. These do not lay down any general principles and are called Obiter Dictum. Ratio Decidendi of a case has a binding effect on the precedent.

Judicial precedents ensure that laws are consistent. When cases concerning similar issues are judged they prove to be essential in order to provide formal justice. The advantage of consistency further provides certainty within law. The binding element, Ratio Decidendi incorporates material facts fundamental to certainty. The judicial precedents save the time of the judiciary, professionals and clients, hence making it very efficient in terms of time, effort and money. The doctrine produces flexibility however it must be noted that it demonstrates that an accident must occur in order for the law to develop. Flexibility can be achieved by overruling previous decisions.

The advantage of flexibility contradicts the notion of certainty within the doctrine of judicial precedents. The ability of the judiciary to shape the common law and decide whether the previous case will be binding decreases the certainty.

Professor W. Geldart claims that precedents offer the benefits of predictability, development potential, a large number of specific rules, and a practical nature of these norms. It is, however, restricted and inflexible, and its binding force places a constraint on the judge’s judgement. The Supreme Court in Common cause v. Union of India had made it clear that the task of the court is to weigh different beliefs and give effect to its own ascertain to build the law of the land.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign ā€œBalancing Lifeā€and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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