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Read the article titled Doctrine of Judicial Precedent in Indian and International Jurisprudence written by Jagrati Gupta only on Legal Bites.
Doctrine of Judicial Precedent
Human civilization will turn chaotic and anarchical if there is no system of laws or regulations. That’s why from time immemorial some form of rules or regulations have been practiced in order to regulate and restrain human tendencies. According to Merriam Webster, the definition of ‘law’ is any binding custom or practice of community that is a rule of conduct or action prescribed or formally recognized as enforced by a controlling authority.
This rule of conduct not only prevents chaos but also safeguards the rights of people. But if a person exercises his rights by contravening or infringing another person’s rights, this type of insecurity occurs in day-to-day human contact and is inevitable. This level of insecurity is eradicated through the law which is placed under three organs: the legislature which formulates laws, the executive which executes them, and the judiciary which decides the matters of laws’ infringement.
Definition of Judicial Precedents
There are numerous sources of law in Indian and international jurisprudence. One of the sources of law is judicial precedents.
- John Gray defines judicial precedents as that it covers everything said or done which furnishes a rule for subsequent practice.
- According to Keeton, a judicial precedent is judicial to which authority has in some measure been attached.
- John Austin defines it as a judiciary’s law.
- According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’
Thus, judicial precedent can be defined as any legal pronouncement or judgement given which has been taken as an example of a rule to be followed in future similar cases. In a nutshell, it can be understood that judicial precedents are followed to avoid different verdicts on similar facts of the case as if there are different verdicts, confusion will arise in public and the defeating parties in all the cases will believe that injustice is done to them which could lead to rebellion and disbelief in the whole legal system.
Principle of Stare Decisis
Stare Decisis means “let the decision stand in its rightful place”. This maxim is used in connection with judicial precedents and binds the judge to follow the earlier rulings or decisions of courts as a legal principle in cases with similar facts and circumstances. The Latin doctrine Stare decisis et non quieta movere literally means to abide by the earlier rulings and not to dishevel the already established principles to avoid chaos. The system of judicial precedents is mostly followed by the lower court, established by the superior courts.
Employment of Stare Decisis in India
In India, stare decisis is practiced by making the lower courts in a State bound by the principles established by the High Court of that state or the Supreme Court. A single judge of the High Court of bound by the judgment of a Division Bench, Full Bench of the Supreme Court. The Division Bench of a High Court is bound by the judgment of the Full Bench of the same High Court and the Supreme Court.
Under Article 141 of the Indian Constitution, the Supreme Court is empowered to declare laws that are to be conformed to by all the lower courts in India. In various judgements, the importance of judicial precedents declared by it has been supported through Article 141 of the Constitution.
In Mohd. Ahmad Khan v. Shah Bano Begum, the Supreme Court held its interpretation of the religious text as binding precedent.
In Vishaka v. State of Rajasthan, the Supreme Court established relevant guidelines and rules to prevent sexual harassment of women at workplaces which should be strictly abided in accordance with Article 141 of the Constitution.
In Indra Sawhney v. Union of India, the Supreme Court decided that the creamy layer in reservation classes should be excluded from the benefits of reservation. In accordance with the Article 141 of the Constitution, the Supreme Court declared the Kerala State Backward Classes Act, 1955 as unconstitutional.
In Pandurang Kalu v. State of Maharashtra, the Supreme Court held that the decisions of the High court will binding until and unless the Supreme Court overrules them.
Lakhani v. Malkapur Municipality, the court held that the decision of the Supreme court is binding on all High Courts.
There have been innumerable judgements where the principle of stare decisis was not abided by as with time new developments had taken place and the conditions were different which persuaded the courts to take a different view in cases of similar facts.
The doctrine of prospective overruling whose genesis was in the American law which meant to overturn or alter the decisions which had been set as precedent when it is discovered by the courts that earlier decisions were not effective and, in some cases, outrightly wrong and the court acknowledges that the following of the same precedent would be against the public interest.
In Sambhu Nath Sarkar v. State of West Bengal, the Constitution bench of seven judges rejected the principle of stare decisis to be followed as the earlier decision in the AK Gopalan case was held to be “inconsistent with the legal philosophy of our Constitution” and it would harm the public interest to continue the mistake in future cases.
In Distributors (Baroda) Pvt Ltd v. Union of India, in this case, also the court overrode the earlier decisions and held them to be invalid and are to be reconsidered, thus, the court is not compelled to follow the wrong path.
In Golaknath v. State of Punjab, the CJI Subba Rao had invoked the doctrine of prospective overruling and held that the court owes a duty to announce new and better rules for future problems when it acknowledges that the principle established by previous rulings are inconsistent and it would rather be wrong to continue them for the sake of maintaining the authority of precedents. So, the earlier judgements in which the legislature under Article 368 of the Constitution was empowered to amend all the parts of the Constitution including Part III was overturned and with this, the Parliament was not allowed to bring any law which curtailed Fundamental Rights.
In Girtha Hariharan v. RBI, in order to protect Section 6(a) of the Hindu Minority and Guardianship Act, 1956 from being declared unconstitutional, the court interpreted it in a different way from the earlier judgements and hence invoked the doctrine of prospective overruling.
In the Mandal Commission Case, the court overruled its judgement in the General Manager, Southern Railway v. Rangachari decided in 1962.
Kinds of Precedents
- Authoritative Precedent: In this, the precedent is strictly abided by the lower courts as these precedents are treated as established principles and sources of law. These are of two types:
- Absolute Precedent: The judge has to mandatorily follow the precedents given in the earlier judgements with no scope of alteration even if it is wrong and inconsistent in the present case. This is usually seen when the bench deciding the current case is smaller in comparison to the bench in which the precedent was set.
- Conditional Precedent: The authority of the precedents is important and is generally followed but, in some cases, it can be disregarded in Supreme Court acknowledging the distinction or the development in the present case.
For example, in IR Coelho v. State of Tamil Nadu, the power to amend the 9th Schedule of the Constitution was earlier held to be complete but in this case, the Supreme Court identified the fallacy of this schedule in which the government had got unrestrained power to formulate any law and place it in this schedule to avoid judicial review and therefore, the Supreme Court established a new condition on this Schedule which intended to take cognizance of those laws which hampered the fundamental rights or contravened the basic structure of the constitution.
- Declarative Precedent: The already established principles or laws are applied in the new case which is further inculcated as a solid precedent in future cases. For example, the concept of ‘prospective overruling’ was introduced by CJI Subba Rao in the Golaknath case which has been applied in a number of cases like in Waman Rao v. UOI, Orissa State Limited v. the State of Orissa, UOI v. AK Chatterjee, etc.
- Original Precedent: Salmond has defined original precedent as one in which the new rules or principles were created and applied. The rules were formulated after acknowledging their importance and necessity and were expected to be followed in future cases as it favours public interest. For example, in the Kesavananda Bharti case, the largest constitutional bench of 13 judges formulated the concept of the ‘basic structure’ of the constitution which is to be followed whenever considering the validity of any law or policy.
- Persuasive Precedent: Persuasive precedents do not carry binding value and the judge rather has discretionary power to whether follow them or not. In this, the judge may take consideration of them but is not bound to strictly abide by them. They are seen as historical precedents and not as sources of law. This is usually seen when the judgements given in a similar case by one High Court are seen as persuasive by another High Court but do not bind the judge to compulsorily follow them.
System of Judicial Precedents in International Law
The idea of trying similar cases on the same principles set by the earlier judgements holds an imperative position in many common law systems. Some of the countries in which the judicial precedents are followed as a source of law are:
- England: The English jurisprudence allots a huge significance to judicial precedents. That’s why the House of Lords has to strictly abide by its earlier decisions, similarly, every lower court has to follow the precedents set up by the higher courts. The Court of Appeal is also confined to following its own earlier judgements. The precedents of the persuasive kind are also followed in which the decision of one court of the first instance does not bind the court of a similar category. In London Tramways v. London County Council, the House of Lords expressed the view that it was bound by his all-previous judgements. In Young v. Bristol Aeroplane, this case set the principle that the Court of Appeal is bound by its own decisions.
- The United States: The genesis of ‘prospective overruling’ in this country is evidence of not relying absolutely upon judicial precedents. Though there is a general rule for inferior courts to follow the precedents set by the superior courts it is a frequent scenario in which the existing precedent is not followed and is mostly overruled. If the court of one state is assigned the duty to determine the law of another state, the latter state is bound to follow it.
Federal courts in matters of state law are bound to follow its precedents and vice-versa. An instance, where judicial precedents were followed, is in Casey v. Planned Parenthood where the precedent of acknowledging a woman’s constitutional right to abortion set in Roe v. Wade was abided by. In Payne v. Tennessee, the Court overturned two precedents—Booth v. Maryland and South Carolina v. Gathers—to hold that the Eighth Amendment did not prohibit a capital sentencing jury from considering victim impact evidence.
- International Criminal Court and International Tribunals: The position of judicial precedents in ICC and international tribunals is still an unmapped territory as the number of international rulings has only recently become sizeable. In Tadic Trial, the judges were unable to seek any guidance on whether to follow the interpretations of other international judicial bodies. In a question of whether to directly use external judicial decisions, Judge Shahabuddin observed that ICC or any tribunal is free to consult the experiences of other judicial bodies with a view to enlighten themselves.
- International Court of Justice: Under Article 59 of the ICJ Statute, the Court is free not to follow its earlier judgements. Though the court is not bound to follow its past decisions generally it seeks to rationalize its past decisions to sustain its continuity. The sources of law that ICJ can put to use is mentioned in Article 38(1) of the ICJ statute. The Court has generally referred to its earlier judgements in present cases but it ensures that it does not make an impression of mandatorily following them. It is evident that the practice of the common law principle of judicial precedent is not followed in ICJ and therefore, its decisions are not a source of law in international adjudications.
- European Court of Justice and European Court of Human rights: In this court, there is no binding value of judicial precedents. Similar is the case in ECHR where it had stated that it is not bound to its own decisions but in some exceptional circumstances will follow it. Therefore, there seems to be a relative ambiguity in the application of precedents.
The value of judicial precedents is magnificently significant, and lays a path and is a source of enlightenment in future similar problems. It is a source of knowledge and solution to academicians, researchers and law students due to its clarity in thought and arrangement. Thus, the principles and rules established in the earlier judgements are bound to be followed in similar future cases as it not only prevents chaos and confusion but also enhances confidence in judicial institutions that it will provide justice.
But there are many instances where the limitation to only follow the precedents has constrained judicial activism. That’s why in some landmark judgements, the courts have refused to follow them due to the inherent wrong nature of the precedents or the obsolete principle it propagated, and therefore new rules and interpretations were done and passed on.
 A. Shanmuga Sundaram & Dr. P.R.L. Rajavenkatesan, Stare Decisis: The Principle of Precedents and its Practise in India, Law Finder Live, July 17, 2020, (Online) Available from: Click Here (Accessed January 14, 2022).
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