Judicial Precedent: As a source of law

Introduction

Judicial precedent is important source of law. It is a distinguishing feature of the English legal system because most of the common law is unwritten and owes its origin to judicial precedents. Precedents have a binding force on judicial tribunals for deciding similar cases in future. Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. Judicial precedents based on the principle of stare decisis are also a source of law as they offer a backbone or support to rely on, in cases with similar facts. Treaties and conventions on an international level are also used to make law as with increased globalization, all the countries are required to interact with each other more than before. Justice, equity and good conscience have always been what law and decisions must be based on. In the absence of any one of these, the decision will be held to be arbitrary or unconstitutional and eventually struck down. Therefore, if a judicial precedent speaks with authority and that the principle which it contains would be binding in future cases, precedent then becomes an important source of law, but not the sole source of law.

According to Salmond:- Precedent is, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’ In a strict sense, that case law which not only has a great binding authority but must also be followed.

Authority Of Previously Decided Cases

In almost all legal systems, the judges take guidance from the previous decisions on the point, and rely upon them. But the authority of such decisions is not the same in all the legal systems. In most of the countries including India, acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions are compiled and published in reports. These reports are considered to be very valuable from the legal literature perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are called judicial precedents or precedents.

Nature Of  Precedents

A. They must be purely constitutive and not abrogative at all. This means that a judicial decision can make a law but cannot alter it.

B. They cannot substitute their opinions for the established rule of law.

C. Where there is a settled rule of law, It is the duty of the judges to follow the same.

D. The function is limited to supplying the vacancies of the legal systems, filling up with new law the gaps that exist.

Importance Of Precedents

In the Ancient Legal System:

The importance of the decisions as a source of law was recognized even in very early times. In the past, there have been numerous instances of this. In the Mahabharata, it has been stated that ‘The path is the right one which has been followed by virtuous men.’ This may be interpreted as giving a theory of precedent. In ancient legal systems of Babylonia and China, the judicial decisions were considered to be a great authority, and later on, they were embodied in code law.

In the Modern Legal System:

Among the modern legal systems, the Anglo – American law is judge made law. It is called ‘Common Law’. It developed mainly through judicial decisions. Most of the branches of law, such as torts, have been created exclusively by judges. The Constitutional Law of England, especially the freedom of the citizens, developed through judicial decisions.

Not only in the municipal law but in international law also, the precedents have their importance. The decisions of the International Court of Justice are an important source of International law. These precedents have been recognized by the International Court of Justice by Article 38(2)(d) of the Statue of the International Court of Justice. Further, Article 59 of the same holds that the decisions of the court only have persuasive value for future cases and hence the International Court of Justice is not bound by its own decisions in deciding similar cases in future. It holds that the decision is only binding the parties to the case.

Position of Judicial Precedent Under Indian Law

 Position in Supreme Court-

According to Article 141 of the Indian Constitution, the law declared by it shall be binding on all courts within the territory of India .The expression “all court “used in this article obviously means court other than the supreme court .The decision of the supreme court is binding on the high court and cannot be ignored by it on the ground that relevant provisions were not brought to the notice of the supreme court, and hence its decision is not binding.

The doctrine of precedent in the Supreme Court of India can be better understood by reference to the following point: –

1.  The Supreme Court is not bound by its own previous decisions. However, a smaller bench is bound by the decision given by a larger bench.

 2.  The Supreme Court is not bound by the decisions of the Privy Council and the federal court of India. They only have a persuasive value in the Supreme Court. However, they command great respect in the Supreme Court.

3.  The Supreme Court is not bound by the decisions of foreign court like the supreme court of USA or UK.

Some Important Cases of Precedent: –

  • Bengal Immunity co ltd VS state of Bihar, AIR 1955 SC.
  •  Sajjan Singh VS State of Raj, AIR 1965,SC.
  • Golak Nath VS State of Punj, AIR 1967 SC
  • Kesavananda Bharati VS State of Kerala 1973 ,4 SCC

Position in High Court-

There are 25 High Courts in India for 29 state and 7 Union Territories .Every High Court is headed by a Chief Justice .The National Capital territory of Delhi is the only Union Territory to have a separate High court.

Article 141 states that, “the law declared by the Supreme Court shall be binding on all courts within the territory of India “.The term “law declared” means not only the ratio decidendi of a decision but it includes an obiter dictum also,” provided it is upon a point raised and argued.” Judicial propriety dignity and decorum demand that being the highest judicial tribunal in the country even the obiter dictum of the Supreme Court should be accepted as binding.

1. Every High court is absolutely bound by the decisions of the supreme court of India.

2. The Subordinate courts within the jurisdiction of a High court are bound by the decisions of that High court.

3. A single judge bench of the High court is bound by the decisions of a division bench (2 judge bench) a full bench (3 judge bench) of the same High court.

4. The decisions of one High court only have a persuasive value before other High court and the Subordinate courts falling within the jurisdiction of other High courts.

5. The High courts in India are not bound by the decisions of foreign courts.

Position in Subordinate Court: –

There are various Subordinate courts in India at state level like District and Session court, Magistrate’s court, Civil court, etc. These Subordinate courts are bound by the decisions of the Supreme Court.

Doctrine Of Stare Decisis

Stare decisis is the legal principle which requires judges to abide by and respect the precedents laid down by similar prior decisions. The Latin maxim, Stare decisis et non quieta movere which means, “to stand by decisions and not disturb the undisturbed” forms the basis of this legal principle. In the legal context, judges interpret as meaning to not disturb already settled matters to allow for continuity. If varying judges gave their opinion in different matters in different courts, having similar facts would lead to chaos and many parties would feel like their rights have been infringed and they would feel helpless and like justice has not been served to them. This doctrine is basically a rule or a requirement that a Court must follow the rules established by a superior court.

Authority Of Precedents

The authority of a decision as a precedent lies in its Ratio Decidendi.

Ratio Decidendi and Obiter Dictum-

There are cases which involve questions which admit of being answered on principles. Such principles are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements. The principle that comes out as a result of such case is not applicable only to that case, but to cases also which are similar to the decided case in their essential features. This principle is called Ratio Decidendi. The issues which need the determination of no general principles are answered on the circumstances of the particular case and lay down no principles of general application. These are called Obiter Dictum.

It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis on one or the other point.

Types Of Precedents

  1. Declaratory and Original: In declaratory precedents, the mere application of a rule in a previous legal case is used. Original precedents result in the creation of new laws. Here new laws are created and applied. An example can be where we considered that the power to amend the constitution was not restricted till it was decided that limits must be placed on the same and that all laws in the Ninth Schedule henceforth must also be tested against the basic structure.
  2. Persuasive: Here the precedent is not necessarily needed to be followed. The judge will rely heavily on this case and take it into consideration. It is not directly considered as a source of law but is seen as a form of historical precedents. This is usually seen in High Courts, where the judgements in one High Court can be considered as persuasive precedents in another. This can be seen when similar cases arise in various High Courts the verdict can be made by relying upon judgments from other High Courts. They will not be binding but will be persuasive and will act in favour of the litigating party in whose favour the previous verdicts have been made.
  3. Absolutely authoritative: In these cases, the verdict that has been earlier must mandatorily be followed by the judge. Even if the judge thinks that it is a wrong judgement they are required to follow that precedent because of sheer numbers. This is usually seen in cases where the bench is smaller than the bench that decided upon the precedent that the judge is relying on. This is also possible in cases of hierarchy, where certain courts have to rely on decisions made by superior courts. 
  4. Conditionally authoritative: In this case, the precedents by a general rule are considered authoritative but can be disregarded in cases of the parties appearing before the Supreme Court. The decision can also be overturned. An example can be where we considered that the power to amend the constitution was complete till it was decided that limits must be placed on the same and that all laws in the Ninth Schedule, henceforth must also be tested against the basic structure.

Merits of Precedent:-

The merits of precedent as a source of law mentioned below-

 1) Respect for ancestors.

 2) Saving of time.

 3) Certainty in Law.

4) Satisfy the needs of the society.

5) Helps people to understand the Law.

6) Flexibility in Law.

7) Practical in nature.

8) Development of Law.

Demerits of Precedent:-

The demerits or disadvantages of precedent as a source of law mentioned below-

 1) Very large number.

2) Development of law depends upon litigation.

3) It is incomplete law.

 4) Wrong precedent may be established.

5) Overruled case may be quoted before the court.

Conclusion

From the brief discussion above about the legal value of precedents we can clearly infer that these play a very important role in filling up the lacunas in law and the various statues. These also help in the upholding of customs that influence the region thereby making decisions morally acceptable for the people. This thereby increases their faith in the judiciary which helps in legal development.

These moreover being a sort of respect for the earlier views of various renowned jurists, helps in upholding the principle of stare decisis. It is a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises.  It will save labour of the judges and the lawyers. This way it saves lots of time for the judiciary which is a real challenge in the present day legal system with so many cases still pending for many years now. Precedents bring certainty in law.

If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic and many other values of their age. They mould and shape the law according to the changed conditions and thus bring flexibility to law.

References

https://www.lawteacher.net/free-law-essays/judicial-law/judicial-precedent-is-source-of-law.php

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