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Precedents as a source of law

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.[1]

According to Keeton:

A judicial precedent is judicial to which authority has in some measure been attached.[2]

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.[3] 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

  1. 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 not.
  2. 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.
  3. 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.
  4. 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:

  1. 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.
  2. 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 higher court;
    c) If the earlier decision is contrary to reason (i.e. unreasonable)[4]

Parts of a decision

Ratio decidendi

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

Obiter dictum is an opinion or a remark made by a judge which does not form a necessary part of the court's decision.[5] 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

Dissenting Opinion

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.

Concurring Opinion
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 decision.[6]

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.[7]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.

  1. Definitions for precedent, DEFINITIONS AND TRANSLATIONS (November 26, 18),
  2. Neerja Gurgani, Precedents as a source of law, LAWCTOPUS (may 7, 2015),
  3. Stare decisis and Doctrine in India, LAW TEACHER, ( November 11, 18),,
  4. DR.SR.MYNENI, LEGAL LANGUAGE AND LEGAL WRITING 179 (1ed.,Asia Law House) (2017)
  5. Obiter dictum law and legal definition, US LEGAL(November 11,18)
  6. James Haskell, What is the difference between a concurring and Dissenting opinion?, LEGAL BEAGLE(November 11, 18),
  7. Toni.M.Fine, Excerpt reproduced from American Legal Systems, LEXIS NEXIS (November 11, 18),

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