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Judicial Precedent Is Source of Law

Judicial precedent is the source of law where past decisions create law for Judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis’, meaning to “stand by decided matters”. A binding precedent is where previous decisions must be followed. This can sometimes lead to unjust decisions, when talking about the advantages and disadvantages of binding precedent. How the process of judicial precedent works, including the hierarchical structure of the courts, moving on to the advantages and disadvantages of using the doctrine.

A binding precedent is created when the facts of a latter case are sufficiently similar to the facts of a previous case. The doctrine of precedent is often referred to as being a rigid doctrine. Within the court hierarchy, every court is bound to previous decisions made by courts higher than them. At the very top of the court hierarchy is the European Court of Justice, followed by the House of Lords, which is considered to be the Supreme Court as many laws do not concern European Union law. Decisions made by the House of Lords become binding on all other Courts within the hierarchy. Below the House of Lords is the Court of Appeal, which has two Divisions, Civil Division & Criminal Division. Both Divisions are bound to decisions made by the House of Lords and the European Court of Justice. Additionally, they are bound to their own decisions, with the exception that the Criminal Division is more flexible where a case involves a person’s liberty. The Divisional Courts along with the High Court are also bound to decisions made by the House of Lords and the European Court of Justice, with the addition to the Court of Appeal, and the Divisional Courts in the case of the High Court.

Between 1898 and 1966, the House of Lords were bound to their own previous decisions, making the law consistent due to rulings made in London Street Tramways Vs London County Council [1898]. In 1966, the Lord Chancellor issued a Practice Statement, stating, “the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law”. It also stated that the House of Lords would be able to “depart from a previous decision when it appears right to do so” (supra n.2).

The House of Lords attempt to follow the majority of past decisions. Exceptions include where unjust decisions result from following past decisions. When deciding cases, there is a test of subjective recklessness that is relied upon. This is where certain aspects of particular cases are taken into account. For example, in the case of R Vs Caldwell [1982], the defendant got sacked from a hotel that he worked at; and one night got drunk and set fire to the hotel, with the intention to cause damage to the property. However, there were also guests sleeping in the hotel. He was, therefore, charged with not only arson, but also with intent to endanger human life. Lord Diplock decided to remove the objective test, as being drunk was not seen as a defence for recklessness.

In R Vs G [2003] the objective test was put back in as it was decided that the defendants should be judged with consideration to their age and understanding. Two boys, one aged eleven and the other twelve, camped in a yeard behind a shop with permission from their parents. They set fire to some newspapers, thinking that the fire would go out itself. However, the fire spread to nearby bins and finally to the shop. Over £1 million of damage was caused. The boys were unaware of the damage that they had caused as they had left before the fire spread. As they did not intend the damage it was decided that their infancy should be taken into account. In their defence, reckless behaviour is where the defendant is aware of the risk, and seeing as the boys did not intend the damage, the objective test was put back in.

These cases show that the House of Lords are prepared to depart from past decisions when it is desirable to do so. Similarly, in Elliot Vs C [1983], a 14 year old girl who had learning difficulties, was playing with matches and set a neighbours shed on fire. The case was acquitted on the basis that she was unaware of the damage caused. However, an appeal by the prosecution was allowed, based on the Caldwell test that being unaware of the damage caused is irrelevant. This case is in between R Vs Caldwell (supra n.4) and R Vs G (supra n.5), as it is decided on the basis of the Caldwell test, but has similar facts to the latter case. This could cause problems for future cases, making it difficult for Judges to decide which case is best suited to follow.

The Practice Statement marked an important change to the doctrine of precedent. The first major use was in Herrington Vs British Railway Board [1972], however, it wasn’t until the 1980’s and 1990’s that the House of Lords showed more willingness to use the Practice Statement. In Pepper Vs Hart [1993], a young child was burned on an electric railway. The playground where the child was playing was separated from the railway by a fence that was damaged. The Station Master knew that the children often trespassed onto the railway, but did nothing about it. The previous case of Addie Vs Dumbreck [1929] held that the occupier of land had no duty of care for the trespassers; it was in fact the duty of the parents. However, this case was overruled in the case of Pepper Vs Hart (supra n.8) as the House of Lords held that the Judges could refer to Hansard in interpreting the case. They came to the conclusion that the case “involved the law on the duty of care owed to a child trespasser”, and found that the stationmaster did not do anything to ensure the safety of the child trespassers, even though he was aware of the risk.

The Court of Appeal, being below the House of Lords in the court hierarchy, is bound to any decisions made by the House of Lords. However, the Court of Appeal tried to challenge this authority in Broome Vs Cassell [1971] and also in the latter case of Miliangos Vs George Frank (Textiles) Ltd [1976]. However, the House of Lords rejected both attempts. This suggests that the Court of Appeal along with many other courts lower in the hierarchy do not exercise any power in relation to the doctrine of precedent.

The Court of Appeal is also bound to its own decisions as decided in Young Vs Bristol Aeroplane Company Ltd [1944], along with three exceptions. These include the right to choose between prior conflicting decisions, to refuse to follow a decision that is inconsistent with the House of Lords decisions and to refuse to follow a decision that is made per incurium (in error). The Court of Appeal attempted to challenge this authority in Davis Vs Johnson [1979], and Lord Denning suggested that the Court of Appeal should have similar powers as the House of Lords. However, this approach would result in the House of Lords becoming useless as the Court of Appeal is usually first to deal with cases, and would affectively break the court hierarchy.

Although the doctrine of precedent is considered to be a fetter upon the English Legal system, there are also ways of avoiding the strict applications of precedent. Three ways in which precedent may be avoided include distinguishing, overruling and reversing. Distinguishing is where a Judge is able to draw differences between the case he is deciding and a past case that he would usually have to follow, showing that there are not enough sufficiently similar facts between the cases to bind them. Therefore he would not be bound to a past decision. This was shown in the differences between Balfour Vs Balfour [1919] and Merrit Vs Merrit [1971]. Although both cases involve husband and wife, in Balfour Vs Balfour (supra n.15) it was merely a domestic arrangement meaning there was no legal intention. However, in Merrit Vs Merrit (supra n.16), the agreement was made after they had split up, making the agreement legally binding.

Overruling is where the court later decides that the decision in a previous case is wrong. The House of Lords exercising the power of the Practice Statement, to overrule its own decisions, can demonstrate this. The House of Lords overruled a past decision made in Davis Vs Johnson (supra n.14) in Pepper Vs Hart (supra n.8), whereby, the House of Lords ruled that Hansard could be referred to in order to understand the actual meaning of certain words within an Act of Parliament.

Finally, reversing is where a court overturns a decision made by a court lower than itself in the court hierarchy. For example, the Court of Appeal could reverse a decision made by the High Court.

As the question addresses, the doctrine of precedent can be seen as a restraint on the development of law due to its strict application. However, judicial precedent does have its advantages. The main advantage of using precedent is that it provides certainty in the law. As cases with sufficiently similar material facts are bound by past decisions, it provides an idea of how the case will be decided. Another advantage is that it provides consistent decisions within the law, which also ensures fairness. Consistency also provides that people are reassured in the law, as they do not feel that they are being treated unfairly.

However, precedents could become ‘out of date’, for example in R Vs R [1991], the laws changed in the respect that a man could now be guilty for raping his wife, whereas, before he couldn’t. This can be referred to as being persuasive precedent, which is not binding on the courts. A Judge has the right to consider a persuasive precedent and be persuaded to follow it if he believes that it provides the correct principle. The introduction of the Practice Statement ensured that flexibility was restored in the development of the law. The ability to overrule past decisions means that there is room for law to develop at the same rate as society changes. Precedent also provides a time saving element, which in the long run also saves money. Being bound to past decisions, courts avoid long periods of litigation. As cases with sufficiently similar facts would have already been decided, it saves the process of deciding the legal ruling, which can often take a long time.

However, the rigid approach of the doctrine is often criticised for inflexibility. As courts lower down in the court hierarchy are bound to decisions made by courts higher than them, any bad or unjust decisions made would have a knock on affect, as they are bound to follow them. In defence of this, the House of Lords are able to depart from past decisions in order to amend unjust decisions made by means of the Practice Statement. However, few cases actually reach the House of Lords, meaning that it down to the other courts to decide cases. Although precedent is seen as being consistent, it also brings complexity to the law. Seeing as there are millions of cases decided by court, it is often difficult to find relevant past cases. Application of a wrong past decision could lead to an unjust decision being made in a latter case. The law also becomes complex as previously discussed, when cases are distinguished and a new precedent is formed. This is demonstrated in the cases ofR Vs Caldwell(supra n.4) and R Vs G (supra n.5), which later made the decision in Elliot Vs C (supra n.6) complex.

Overall, the doctrine of judicial precedent brings equally both advantages and disadvantages to the English Legal System. Despite being referred to as being a fetter upon the courts, the rigid application of precedent is upheld in order to provide consistency. As decided by the House of Lords in London Street Tramways Vs London County Council (supra n.2), as the Lords held that certainty in the law was more important than the possibility that unjust decisions would be made as a result of following past decisions. The so called ‘fetters’ the doctrine of precedent puts on the English Legal System, can be seen as something that is simply only in existence in the minds of lawyers, as it is in the hands of such professionals to decide whether consistency is more important that allowing the law to develop. There are opportunities for avoiding the rigidity of judicial precedent, proving that the doctrine does display some margin of flexibility.

What Does Stare Decisis Mean?

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts be approached in the same way. Simply put, it binds courts to follow legal precedents set byprevious decisions.

Stare decisis is a Latin term meaning "to stand by that which is decided."

The principle of stare decisis is embedded in Latin Maxim ‘stare decisis et non quieta movere’, firmly entrenched in British system of doctrine of binding precedent and embodied in Article 141 of the Constitution of India. The Supreme Court of India has long been recognised for judicial creativity. In order to cope up with the pressure of work, the distribution of cases to Benches especially the Courts where there are large number of Judges, this principle has been evolved for maintaining judicial decorum, propriety and discipline and also for not unsettling the settled law by each individual view unless it is overruled by the Higher Court or a Larger Bench. Thus, even where the Bench of a co-ordinate jurisdiction, having a different view of any earlier such Bench, the proper course open is to request the Chief Justice to refer the matter to a Larger Bench.

The principle o binding precedent is well settled. Not only the decisions of Higher Courts are binding on the courts lower in hierarchy, even in the same court it binds Bench of Lower strength of Judges even to equal number of Judges of co-ordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently constituted Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide to the contrary but has an option with judicial sanction to refer it to the Larger Bench. It provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. The expressions ‘binding’ and ‘on all courts’ catch our eyes. It is to be discerned as to what is binding and determined whether the Supreme Court is bound by its own decisions.

It is settled law that an authoritative law laid down after considering all the relevant provisions and the previous precedents, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a Larger Bench in the larger public interest to advance the cause of justice.
The Supreme Court, in Tribhovandas Tribhovandas Purshottamdas Thakkar Vs Ratilal Motilal Patel & Ors., AIR 1968 SC 372 held that the Single Judge of the High Court is bound to accept as correct judgments of the Courts of co-ordinate jurisdiction and of Division Benches and of Full Benches and of the Supreme Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.

The Supreme Court of India in Union of India Vs Godfrey Philips India Ltd., AIR 1986 SC 806 observed that "we find it difficult to understand how a Bench of two Judges in M/S. Jeet Ram Shiv Kumar & Ors. Vs State of Haryana & Anr., AIR 1980 SC 1285 could possibly overturn or disagree with what was said by another Bench of two Judges in M/S Motilal Padampat Sugar Mills Co. Ltd. Vs State of U.P. & Ors., AIR 1979 SC 621. If the Bench of two Judges in Jeet Rams case (supra) found themselves unable to agree with the law laid down in Motilal Padampat Sugar Mills case (supra), they could have referred Jeet Rams case (supra) to a Larger Bench, but we do not think it right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court."

The Honble Supreme Court speaking through Justice D. K. Jain & H. L. Dattu, in"Shanker Raju Vs Union of India", (2011) 2 SCC 132, explained the legal concept of Stare Decisis. The doctrine pertains to the concept of being bound by ones earlier decision. The concept, as applicable in India, has been explained by the Supreme Court as under;

The Doctrine of Stare Decisis

"10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim stare decisis et non quieta movere, which means "to stand by decisions and not to disturb what is settled." Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. inWaman Rao Vs Union of India, (1981) 2 SCC 362 at Pg. 392 thus:
"40. ... for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis."

11. In Manganese Ore (India) Ltd. Vs Regional Asstt. CST, (1976) 4 SCC 124, at Page 127, it was opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

12. In Ganga Sugar Corpn. Vs. State of U.P, (1980) 1 SCC 223 at Page 233, this Court cautioned that, "the Judgments of this Court are decisional between litigants but declaratory for the nation." This Court further observed:
"28. ... Enlightened litigative policy in the country must accept as final the pronouncements of this Court... unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneousin the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions."

13. In Union of India Vs Raghubir Singh, (1989) 2 SCC 754, at page 766, this Court has enunciated the importance of doctrine of binding precedent in the development of jurisprudence of law: "8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.

9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

14. In Krishena Kumar Vs Union of India, (1990) 4 SCC 207, at Page 233, this Court has explained the meaning and importance of sparing application of the doctrine of Stare Decisis: "33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it."

15. In Union of India & Anr. Vs Paras Laminates (P) Ltd., (1990) 4 SCC 453 at Page 457, this Court observed as under: "9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason orground of the judicial decision in the earlier cases on identical matters".

It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled.

16. In Hari Singh Vs State of Haryana, (1993) 3 SCC 114, at Page 120, this Court stated the importance of consistent opinions in achieving harmony in Judicial System:
"10. It is true that in the system of justice which is being administered by the courts, one of the basic principles which has to be kept in view, is that courts of coordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on a question of law. If courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy."

17. In Tiverton Estates Ltd. Vs Wearwell Ltd., (1975) Ch 146 at Page 371, Sorman L. J., while not agreeing with the view of Lord Denning, M. R. about desirability of not accepting previous decisions, said as follows:
"I decline to accept his lead only because I think it damaging to the law to the long term--though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty--one of great objectives of law."

18. The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. The pronouncement of law by a larger Bench of the this Court is binding on a Division Bench of this court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. We further add that it would be inappropriate to re-agitate the very issue or a particular provision, which this Court had already considered and upheld.

Ratio binds, not rationes

It is easy to define A ratio decidendi, but difficult to determine it. Obiter is easy to show, and ratio difficult to demonstrate. There may be indeterminacy of decision or wilderness of single instances. There are large prescriptions of case law defying space which can wrap the whole orb several times all over. There is an esoteric quality about the type of reasoning required for unraveling of cases. It is ratio that is binding, not rationes.

Theory of logical plenitude of law

A critic may say that a subordinate Judge is not bound to worship the golden idols of the past if they have feet of clay, but while a Judge may not revere, he is bound to follow such precedents as are binding upon him. Distinguish or follow is the pearl of wisdom. A Judge may not refuse to decide a case on the ground that law is silent or obscure. The theory of logical plenitude of law impels him to invent a rule where there is none. Since the Supreme Court is the Court of last speak, its enunciations of law are binding leaving aside ultra vires enunciations known as obiter.

Wise to Revise

The twin attributes of a Judge are consistency and predictability. Clinging to consistency is no virtue at the costs of denial or sacrilege of justice. Where justice is amiss, it is no folly to be wise to correct, review and revise. To err is human, so do judges. An infallible judge is yet to be born, as is epigrammatically said. It is always better to be right and stand corrected than be consistently and persistently wrong. Perpetuating an error is no heroism. Who knows this better than a judge, be it of a subordinate court or summit court.

Written by: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K
The Author can be Reached at: [email protected], [email protected] 

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