A decision that has already been taken by a higher court is binding to the lower
court and at the same time stands as a precedent to the lower court judgment,
which cannot be altered by a lower court. This principle is known as Stare
decisis, which is derived from the Latin phrase “stare decisis et non quieta
movere”, which means to stand by the decided matters. In India, it is commonly
known as the concept of precedent.
As per Black’s law dictionary stare decisis means to stand by decided cases, to
uphold precedents, or to maintain former adjudications.
As explained by prof. A. Lakshminath, the doctrine of stare decisis helps to
generate judicial accountability along with it, it also ensures fairness in
adjudication and excludes arbitrariness, and helps in maintaining stability and
certainty. Prof. further explained that stare decisis is both a social as well
as a legal norm.
The desire for certainty and continuity in law gave rise to the doctrine of
stare decisis. This doctrine was initially used in medieval England and America,
where the common-law courts looked into the judgment of earlier cases as
guidance also they had the power to reject those which they do not consider good
or which they considered bad.
Initially, due to the lack of recording the decisions or judgment of cases in
written form, the doctrine of stare decisis was not freely used, but after the
concept of recording the judgment came, widespread use of this doctrine was
It was in the 17th century for the first time in England, the decision of
Exchequer courts was given a binding force. Later in 1883, the urgent need for
recognizing the binding force of precedents was brought into notice in the case
of Mirehouse v. Rennel.
Further in 1873 and 1875 came up the Supreme Court
Judicature Act, where the theory was stare decisis was established. In India the
concept of precedent established after the Britishers came to India, which lead
down the hierarchy of courts and the concept of higher courts judgment binding
the decision of the lower courts.
In 1935 the Government of India Act, explicitly mentioned that the decision of
Federal Courts and Privy Council will be binding all the other Courts decision
in British India. Hence, from the 18th century till date stare decisis is a
characteristic feature of our legal system.
The doctrine of stare decisis under Article 141 of the Constitution of India
Article 141 of the Indian Constitution states that “law declared by Supreme
Court to be binding on all courts within the territory of India.” Article 141
states that only the ratio decendi of a case is binding not the obiter dicta and
the mere facts of the cases. Therefore, while applying the decision of S.C. by
other courts, what is required is to understand the true principle laid down by
the previous decision.
Some basic concept of Article 141
- All the courts in India are bound by law to follow the decision of the
- Firstly the judgment has to be read as a whole and at the same time, the
observation from the judgment has to be determined in the light of the
questions presented before the court.
A judgment is used as a precedent only if it is based on deciding or
resolving a question of law.
- Sometimes while deciding a case court is divided, during that situation
the decision taken by the majority of judges will be later used as a
precedent, not the decision taken by the minority of judges.
- Ex-parte decisions by S.C are also binding and can be used as
- S.C. is not bonded by its own decision.
Procedural irregularity and immateriality do not invalidate the
binding nature of a judgment.
Special leave petitions are binding.
Types of precedents
- Original and Declaratory precedents:
original precedents refer to
those cases where there is a question of law that has not been decided before,
and then in such a case the decision of the judge forms originally An original
precedent is a law for the future, which creates and applies new rules.
Declaratory precedent means those cases where the application of an existing
rule of law is used. In such cases, it is seen that the rule is applied because
a law already existed on it.
- Authoritative or Binding preceden:
it is also known as a mandatory
precedent or as a binding authority. It means those decisions which the judges
must follow whether they approve it or not. It denotes the higher court's
decisions that are binding over the lower courts of that region.
- Persuasive precedent:
these precedents are not as binding as the
authoritative precedents. These precedents mean that while making any judgment
the judge has to consider these precedents and has to give higher weightage to
it. The main concept behind considering it is that it is relevant and can help
in making a fair decision. These cases could be of could which are put at a
similar level in the hierarchy of courts. Even lower court decisions can play a
role in persuasive precedent.
Decisions that are not considered binding under Article 141 of Indian
There is some decision which is not considered as a precedent or which do not
have a binding effect. Those are:
- The decision that is not expressed
- The decision not founded on reasons,
- The decision that does not proceed on consideration of the issue.
- Obiter dicta of a case are not binding, hence it cannot be relied upon
solely as a ground to hold any statutory rule invalid.it has a persuasive
- Decision is rendered per incuriam is not binding. Per incuriam’s
literal meaning is resulting from ignorance. Hence any decision made on per
incuriam, is not used as a precedent.
- Decision is rendered sub-silentio, and then also it is not used as
precedent. Sub-silentio means a situation when the point of law involved in the
decision is not perceived by the court. It means when a point of law or
particular question of law was not consciously determined.
- C’s observations on the facts of the cases are not binding.
Advantages of precedents
Precedent means to follow the same which has been done earlier. Hence the first
step while considering the precedent is to look at the similarity, if there is
any then the magnitude or degree of similarity that existed between the
problems. After this, it has to be seen whether the same has been used before a
precedent and has resolved the problem in this manner, the precedent works.
Therefore the advantages our legal system enjoys by adapting this doctrine are:
- It is time saving avoids unnecessary litigations
- There is an orderly development of the law
It brought greater certainty and consistency in the law, which is
the most remarkable advantage. A good decision-making body needs to have
- Avoid arbitrariness in judgments.
- It eliminates the element of ambiguity and enables the lower courts to
follow the decision of the higher court unanimously.
- The presence of precedent decreases the probability of a judge making a
- It also serves the concept and interest of justice as giving the
different decisions to similar situations might be considered unjust.
Disadvantages of precedents
Every good thing comes with its by-products which are bad or have a negative
effect. Some of the negative effects of stare decisis doctrine are:
- Also practical law is based on experience, by considering precedent the
scope of experience decreases which hampers the essence of practicing law.
- It is being criticized because of its limiting effect on the development
- The first and foremost disadvantage of this doctrine and the precedent
system is its rigidity.
- Another disadvantage is its complexity which sometimes makes the
situation more uncertain.
- Many times judicial mistakes are being continued in the form of
Hence, the stare decides doctrine is very helpful for our judicial system. But
at the same time, the convenience of following the precedent should not be left
to degenerate into just a mechanical exercise performed without any thought. It
should be used carefully, in the view of promoting justice and equity.