Precedent form the primary source of law these days, they tend to strengthen the
laws and judicial system of the country and help us to improve the formation of
laws of the country and make them suitable according to the situations. But the
basic problem in its application is the unavailability of proper records for its
effective implementation, improving which will improve the situation and make
the system more flexible.
History of Precedent
Indian law is largely based on English common law because of the long
period of British colony influence during the British raj. Precedents became a
source of law only during the British rule in India. The government of India act
1935 established a federal court and Privy Council whose decisions were binding
on all the other courts in the country and this was the beginning of using
precedents in making judgments, soon with passage of time precedents acquired a
lot of importance.
Meaning of precedent: a precedent is an event or an action that has occurred
earlier and acts as a guide for similar situations. According to Bentham
precedents are judge made laws. Any particular precedent establishes a
principle or a rule that is followed while taking similar decisions.
According to black's law dictionary:
Rule of law established for the first time by a court for a particular type of
case and there after referred to deciding similar cases.
According to Keeton:
A judicial precedent is judicial to which authority has in some measure been
Doctrine: a Latin term called stare decisis
is the doctrine of legal precedent.
The term stare decisis refer to courts looking at similar or historical case as
a guide to take a judgement in future, it means to stand by the decided cases.
This doctrine is mentioned in the article 141 of the constitution. It is used in
all courts and in all legal issues.
Article 141 of constitution:
The doctrine of precedent is expressly incorporated in India by Article 141 of
the Constitution of India, 1950. Article 141 provides that the decisions of the
Supreme Court are binding on all courts within the territory of India. Although
there is no express provision, but by convention the decisions of a High Court
are binding on all lower courts within the territorial jurisdiction of that High
Court. Similarly, a decision of a higher Bench, is binding on the lower
Bench. In the article all courts refer to all the other courts except Supreme
Court, the Supreme Court is not bound by its decisions.
Types of precedents
- Binding precedents: binding precedents are also known as authoritative
precedents. These precedents are bound to be followed by a lower court or
other equivalent court once a judgment is made whether they approve it or
- Persuasive precedent: persuasive precedents include decisions taken by
an inferior court that a higher court or any other court is not obliged to
follow. It depends on the court to decide whether to consider it or not.
- Original precedent: An original precedent arises when the court has
never taken a decision in a case and it has to use its own discretion to
reach a conclusion. It helps to create new law.
- Declaratory precedents: A declaratory precedent is application of
existing precedent in a particular case. A declaratory precedent involves
declaring an existing law and putting into practice, hence it does not help
in creating new law.
The factors that destroy the authority of the precedent:
- A precedent ceases to be binding if statute or statutory rule
inconsistent with it is subsequently enacted, or if it is reversed or
overruled by a higher court.
- An authoritative judgment can discard the earlier decisions:
a) If the precedent decision was given in ignorance of law;
b) If the precedent decision is inconsistent with the decision of the
c) If the earlier decision is contrary to reason (i.e. unreasonable)
Parts of a decision
Ratio decidendi is taken from a Latin term which means reasons for decision
It includes the rule or principle established and formulated by means of
decision. The principle is applicable in all future judgments that compose
similar facts; ratio decidendi is binding on all the lower courts of the
country. The ratio or reasons for taking a decision are deduced from the facts
of the case and later applied in all the other cases, it forms the basis for
accepting a particular decision as precedent.
Obiter dictum is an opinion or a remark made by a judge which does not form a
necessary part of the court's decision. Obiter dicta is a Latin term which
means things said by the way. Obiter dicta refer to certain opinions, ideas,
examples, statements, observations, etc that are made by the judge while taking
the decisions. These opinions are not binding on all the other courts while they
are only persuasive in nature.
Advantages of judicial precedent
- Everyone dealing with a similar case is treated in a similar manner
there is equality and fairness of justice.
- It acts as guidelines to decide future cases.
- Precedents saves time and increases convenience as a question once
decided is settled and it saves the time and labour of judges and lawyers.
- Precedents help to prepare new statutory laws and adjust according to
the changing conditions of the society.
- Cases which makes them more practical.
- Binding precedent establish a rule that helps to maintain stability.
Disadvantages of precedent
- A precedent makes a lower court bound to follow it which sometimes
forces it to take lesser or harsher decisions then actually required.
- It is rigid to change a precedent once followed.
- There are many precedents regarding many cases and hence it makes it
difficult to implement the right precedent in the right case.
- When a case is distinguished it is not mandatory to follow a precedent.
- Some situations are not recognized under precedent as they are not
brought into account.
Types of opinions
A dissenting opinion is an opinion written by a justice who voted in the
minority. The dissenting opinion explains why the dissenting justice disagrees
with the outcome and reasoning of the majority of the court. Since the
dissenting opinion represents the minority position, the reasoning is not
binding precedent. However, the dissenting opinion offers valuable insight into
the deliberative process behind a case and articulates reasoning that future
court cases could revisit.
A concurring opinion agrees with the outcome of the majority opinion but not
necessarily the reasoning found in the majority opinion. The concurring opinion
gives a concurring justice an opportunity to further explain the legal reasoning
of a case or to offer a completely different legal reasoning for the
Use of precedent in US
United States uses the common law system in its state courts and to a lesser
extent in its lower courts. The defining principle of common law is the
requirement that courts follow decisions of higher level courts within the same
jurisdiction. It is from this legacy of stare decisis that a somewhat
predictable, consistent body of law has emerged.The court hierarchy is
clearly defined The federal court system is based on a three-tiered structure,
in which the United States District Courts are the trial-level courts; the
United States Court of Appeals is the first level court of appeal; and the
United States Supreme Court is the final arbiter of the law. The system consists
of both the judge and the jury and their respective roles.
Common law refers to judge made laws which are otherwise called as case laws,
these case laws can be based on constitutional provisions, statutory provisions
or it can be pure decisional case laws. Thus case laws are properly recorded and
are available even to a common researcher. The system of precedent is also very
flexible, as the US Supreme Court overruled many of its judgments. For example:
between 1946 and 1992 almost 130 of its judgments were overruled. Hence the
system provides for effective implementation of the common law with the
principle of stare decisis and a flexible structure.
Good examples of precedents: Vishakha and others vs. State of Rajasthan (air 1997 sc 3011)
It is regarded as one of the landmark cases in India because this case
was the first of its kind to provide safety for women at their work places. The
roots of the case are attached to miss bhanwari devi who was a social worker and
was brutally gang raped by upper case men, as she opposed a child marriage
.though she filed a case she was unable to get a justice. Bhanwari Devi's
determination attracted many women and ngos to file a public interest litigation
(PIL) collectively under the platform of Vishakha for the violations of article
14,15,19(1)(g) and 21.the judgment given by the bench of J.S Verma, Sujata
Manohar and B.N Kripal laid down the vishakha guidelines to protect women
against sexual harassment at work place ,later in 2013 it was transformed into
a the sexual harassment of women at workplace act,2013, which enabled one of the
biggest victories of women.
Peoples union for civil liberties vs. union of India 2001: right to food:
This case made India the first nation to protect right to food under its
constitution. The case deals with providing food to the starving population
through effective PDS system. outside the city of Jaipur the gowdowns of food
corporation of India (FCI) were over flowing and were a rotten and villagers
nearby were eating food on rotational basis and also the government had 40
million tonnes above the buffer stock, which lead the PUCL of Rajasthan to file
a case and the judgment introduced various acts like mid day meals, integrated
child development system, annapurna scheme and many more to protect the people
below poverty line and provide food to them at subsidized rates.
From the above discussion it can be inferred that precedents play a very
important role in filling the lacunas in law and various statues, it also
increases the faith in judiciary and make laws morally acceptable, it also
brings certainty to law.
precedents are a very effective source of law as they are time efficient and
also ensure equal justice, but a good system needs to be developed with
efficient and clear hierarchy of court that properly defines the courts in
various levels, India has adopted this system from common law but lacks in its
implementation because of many subordinate courts and a large no. of cases
registered, hence the hierarchy has to be more clear and proper record of all
the cases. We have to categorize the different courts available under certain
categories and specify exactly whose decision is binding on whom and maintain
record of all the decisions that are declared as precedents.
This system helps to interpret law and make flexible changes according to
necessity and changing requirements.
- Definitions for precedent, DEFINITIONS AND TRANSLATIONS (November 26,
- Neerja Gurgani, Precedents as a source of law, LAWCTOPUS (may 7, 2015),
- Stare decisis and Doctrine in India, LAW TEACHER, ( November 11,
- DR.SR.MYNENI, LEGAL LANGUAGE AND LEGAL WRITING 179 (1ed.,Asia Law House)
- Obiter dictum law and legal definition, US LEGAL(November 11,18)
- James Haskell, What is the difference between a concurring and
Dissenting opinion?, LEGAL BEAGLE(November 11, 18), https://legalbeagle.com/8599709-difference-between-concurring-dissenting-opinion.html
- Toni.M.Fine, Excerpt reproduced from American Legal Systems, LEXIS NEXIS
(November 11, 18), https://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legal-system.page