Precedent as a Source of Law

By | November 13, 2021
Precedent as a Source of Law

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This article titled ‘Precedent as a Source of Law’ is written by Nazim Uddin. The article discusses the definition, history and operation of the Doctrine of the Precedents as a Source of Law.

Precedent as a Source of Law

“महाजनो येन गतः स पन्था”

“That path is the right one which has been followed by virtuous men” -MAHABHARAT

Every developed legal system has a Judicial organ. The main purpose to have a judicial organ is to adjudicate the rights and obligations of the citizens. In the beginning adjudication of courts was guided by customs and usages. As society grows, legislation becomes the main source of law and judges decide cases according to the law.

Even at this stage, judges perform some creative role in the matter of interpretation, in filling up any lacuna in the law made by the legislation, the judges, to some extent, depend on their own sense of right and wrong and in doing so they adapt the law to the changed conditions. The decisions on such points become the authority or guide for the subsequent cases of a similar nature.

I. Definition of Precedent

According to the Oxford dictionary, Precedent means, ‘ a previous instance or case which is, or may be taken as an example of a rule for subsequent cases, or by which some similar act or circumstances may be supported or justified’.

According to Gray, “Judicial Precedent covers everything said or done, which furnished a rule for subsequent practice”.

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

According to Black’s Law dictionary; Rule of law is established for the first time by a court for a particular type of case and thereafter referred to deciding similar cases.

Generally, it means some set pattern guiding future conduct. In the court of law, it means the guidance or authority of past decisions for future cases.

II. History of Precedent

Indian law is based on the common law of England because of the long period of British colonial influence during the British Raj. Though there are ancient texts which suggest that the precedent has an ancient root like the Mahabharat says “ that path is the right one which has been followed by virtuous men” to say, there was the theory of precedent in India but there is no record of cases or any other reliable evidence upon which anything can be said definitely.

Precedent became a source of law only during British rule in India. The Government of India Act 1935 established the Federal court and Privy council, thus the decision of the federal court was binding on all courts below it. The decision of the Privy council was binding on the federal courts and below courts and the Privy council was not bound by its own decisions.

The doctrine of precedent is expressly mentioned in Article 141 of the Indian constitution,1950. Article  141 reads as “ The law declared by the Supreme Court shall be binding on all courts within the territory of India”. The decision of a High court is binding on all lower courts within the territorial jurisdiction of that High court.

Similarly, a decision of a higher bench is binding on a lower bench. But Supreme court is not bound by its decisions. The doctrine of precedent in the Supreme court of India can be better understood by the following points:-

  1. The supreme court is not bound by its own previous decisions, but a smaller bench is bound by the decision of a larger bench.
  2. The supreme court is not bound by the decisions of either the Privy council or the Federal court of India; .they only have persuasive value.
  3. The supreme court is not bound by the decisions of foreign courts.

III. Operation of the Doctrine of Precedent in High Courts

The operation of the doctrine of precedent will be better understood by answering the following questions:

1. How far are the decisions of the High court binding on the courts below it?

Answer: The decisions of the High court is binding on all subordinate courts and tribunals within its jurisdiction. The decision of one High court has only a persuasive value in a court that is within the jurisdiction of another High court.

2. How far the High court is bound by its own decision?

Answer: The decisions of a bench are binding on a smaller or co-ordinate bench. One bench of the same High court cannot take a view contrary to the decision given earlier by another co-ordinate bench of that High court. It is bound by such decisions.

3. What is the authority of the Supreme court decision in the High courts of the country?

Answer: The Supreme court is the highest judicial authority, therefore the decisions of the Supreme court is binding in all courts in the country.

IV. Application of the Doctrine of Precedent

The authority of a decision as a precedent lies in its ratio decidendi, so before going ahead we need to understand what is ratio decidendi?

Ratio decidendi is a Latin phrase meaning ‘the reason’ or the rationale for the decision. Ratio decidendi is the point in a case that determines the judgement or the principle that establishes the case.

Ration decidendi generally means the reason for deciding. The issue which needs the determination of no general principles are answered on the basis of the circumstances of the particular case and lay down no principles of general application, these are called Obiter dictum. it is the ratio decidendi, not the obiter dictum that has the binding effect as a precedent.

V. Types of Precedent 

There are four types of precedents:

  1. Authoritative Precedents: They are binding in character. These types of precedents have to be followed by courts that are lower in authority, whether they accept it or not. The authoritative precedents are regarded as the legal source of law. For example,  A judgement passed by the Supreme court has to be followed by all lower courts as they are lower in the hierarchy. Authoritative precedents can be further classified as Absolute Precedents and Conditional Precedents.
  2. Persuasive Precedents: if the precedents don’t have legal force in themselves, they are called persuasive precedents. These precedents are just used by judges for reference only and they are only guiding nature.
  3. Original precedents: According to Salmond these precedents establish or create new law. These precedents are mostly formed when no past reference is available for a particular source of law.
  4. Declaratory Precedents: These precedents are mostly used to declare or apply existing rules and judicial decisions.

VI.Merits and demerits of the doctrine

As the discussion shows the doctrine of precedent has assumed a very important place in modern times but many jurists have expressed their opinion  FOR and Against the doctrine.

The supporters of the doctrine put forward the following arguments in favour of the doctrine. They are as follows:-

  1. Respect for Ancestors: It shows respect for the opinion of one’s ancestors. Eminent jurists like Coke and Blackstone have supported the doctrine on this ground.
  2. Saving of time: A question once decided should be settled and should not be subjected to re-argument in every case in which it arises. It will save time as well as the labour of the judges and lawyers. If the precedent is not followed, every case would go from the court of the first instance to the highest court causing delay, expense and inconvenience to the public.
  3. Certainty of law: Precedent brings certainty in the law. If the court do not follow the precedent and the judge start deciding and determining issues every time fresh without having regard to the previous decisions on the point, the law will become most uncertain and it will confuse the layman.
  4. The flexibility of law: Precedent brings flexibility in the law. Judges in giving their decisions are influenced by the social, economic and many other values of their age. They shape the law according to the changed conditions and brings flexibility in the law.

The demerits or disadvantages of the doctrine of precedent are as follows:-

  1. Very large in number: the vastly increasing number of cases has an overwhelming effect on the judges and the lawyers. It is very difficult to trace out all the relevant authorities on every point.
  2. Development of law depends upon litigation: the great demerits of the doctrine of precedent is that the development of law depends on the incidents of litigation. Sometimes most important points may remain unadjudicated because nobody brought an action upon them.
  3. The wrong precedent may be established: the most disadvantage of the doctrine of precedent is that if the wrong precedent is established it will impact society badly

VII. Conclusion

After going through the details of legal precedent we can clearly infer that Precedent plays a very important in filling up the lacuna’s in law and various statutes. It helps in upholding customs that influenced that region thereby making decisions morally acceptable for the people.

Precedent works like a lighthouse in dark by guiding all courts, it brings certainty in the law. Precedents are the guidelines that must be followed by lower courts to ensure real justice, uniformity, consistency in judicial decisions and to provide predictability to the individual rights.


References

  1. G. Kusuma, Precedents as a source of law, Available Here.
  2. Article 141 in The Constitution Of India 1949, Available Here.
  3. V.R.G. & G.O.M.C. Co. V.  State of A.P., A.I.R.1972 S.C.51
  4. Vaishnavi Makne, Kinds of Precedents, Available Here.
  5. N. Mani Tripathi, Jurisprudence, p.no.228-230 (Allahabad Law Agency, Faridabad,19th Edition 2012)

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
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Author: Nazim Uddin

Department of Law Assam University Silchar

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