Sneha Chavan

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Module 2. Sources of Law
PYQ
1. The doctrine of precedent is the life blood of every legal system which to
be viewed in the right of the concept of perspective overruling . Discuss
with the help of case laws? (15 marks) (2022)
2. Critically examine the significance of legislation as source of law and
explain the merits of legislation over custom? (15 marks) (2022)
3. Evaluate and compare legislation as a source of law in comparison with
other sources of law?(15 marks) (2022)
4. Write a critical note on meaning ,nature ,merits , demerits of legislation
as a source of law? (15 marks) (2022)
5. Short note
A. Volkgiest
B. Kinds of law. (2022)

Explain different types of sources of Law?

Introduction
In the Indian context, the expression “sources of law” is generally used in two
senses. In the first according to Hindu scriptures- duty is the foundation head of
all law, in the second phase, the expression ‘source of law means where one
must resort to getting to Law. Dr. C.K. Allen asserts that the true sources of law
are agencies through which the rules of conduct acquire the character of law
because of their certainty, uniformity and binding force. According to Fuller, the
“source of law” includes the material from which the Judge obtains rules for
deciding cases. In this sense, it includes statutes, judicial precedents, customs,
opinions of legal experts, jurists, etc[1]. According to Salmond, there are two
main sources of law (I.)Material Source and (ii) Formal Source of Law.

The material sources are further sub-divide into legal sources and historical
sources. He defined a formal source of law as that from which a rule of law
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derives its force and validity. He, however, clarified that from the material
source, the law derives only its matter and not the validity. Thus the will of the
state as manifested in the Statute Book or decisions of Courts are their formal
source of law while legislation, customs, agreements, and professional opinion
of jurists, etc are the material sources of law. Salmond further pointed out that
historical sources pertain to legal history and not to legal theory. Historical
sources may become legal if they are recognized by law or incorporated as a part
of the law. In this article, I would deal on Custom as a source of law, Judicial
Precedents, Legislations and other sources which include- religion, equity, social
values, and Professional opinion of eminent jurists, Judge, etc

SOURCES OF LAW
According to the Oxford dictionary, the term source can be defined as the point
from which something starts[1], basically the origin of something. In short,
“sources of law” can be defined as the origin from where law comes into
existence. Lon L. Fuller stated that a judge while deciding upon different cases
applies certain rules and these rules can be termed as “sources”.[2]

There are multiple speculations as to this source of law, variety of claims and
counter claims are laid down by various schools of law. The positivist law
theorists such as John Austin states that it is the sovereign who makes and
enforces the law. The natural law theorists state that nature and human reason
are the sources of law. F.K. Von Savigny and Henry Maine consider custom as
the most important source of law.

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of
jurisprudence, classified the sources of law into mainly two categories,i.e.,
material sources and formal sources.
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Material sources

Material sources of law are those sources from which the law gets its content or
matter, but not its validity. There are two types of material sources which are
legal sources and historical sources.

Legal sources

Legal sources are the instruments used by the state which create legal rules.
They are authoritative in nature and followed by courts of law. These are the
sources or instruments that permit newer legal principles to be created.
According to Salmond, legal sources of English law can be further classified into
four categories-

• Legislation,
• Precedent,
• Customary law, and
• Conventional law.

Historical sources

Historical sources are sources that influence the development of law without
giving effect to its validity or authority. These sources influence legal rules
indirectly. The difference between legal and historical sources is that all laws
have a historical source but they may or may not have a legal source. Decisions
given by foreign courts serve as an example for this kind of source.

Formal sources

Formal sources of law are the instruments through which the state manifests its
will. In general, statutes and judicial precedents are the modern formal sources
of law. Law derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton

classified sources of law into the following:
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Binding sources

Judges are bound to apply such sources of law in cases. Examples of such sources
are statutes or legislation, judicial precedents, and customs.

Persuasive sources

Persuasive sources are not binding but are taken into consideration when
binding sources are not available for deciding on a particular subject. Examples
of such sources are foreign judgements, principles of morality, equity, justice,
professional opinions, etc.
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Q. Write a critical note on meaning ,nature ,merits , demerits
of legislation as a source of law?
Synopsis

1. Introduction
2. Meaning and Definition of Legislation
3. Types of Legislation
4. Advantages of Legislation
5. Precedent and Legislation
6. Legislation and Custom
7. Demerits of Legislation
8. Conclusion

Introduction
Legislation means the process of lawmaking. Legis means law and Latum mean
“making”, and as a whole it means lawmaking. According to Austin, it means the
making of law by a supreme or a sovereign authority which must be followed by
people of every stratum of the society. Salmond defines Legislation as the
process of lawmaking by a competent and able authority.

Legislation is the process of lawmaking where a competent authority is given the

task of drafting and enacting the law in a state. It is also said to be a strict concept
of lawmaking because there is only one body which is entrusted with the work
of lawmaking and also there is no scope of any alteration as such because of
codified and watertight laws which leave a very minuscule range of the
amendment.

Meaning
Legislation means the process of law making. Legis means law and Latum mean
“making”, and as a whole it means law making. According to Austin, it means
the making of law by a supreme or a sovereign authority which must be followed
by people of every stratum of the society. Salmond defines Legislation as the
process of law making by a competent and able authority.

Legislation is the process of law making where a competent authority is given

the task of drafting and enacting the law in a state. It is also said to be a strict
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concept of law making because there is only one body which is entrusted with
the work of law making and also there is no scope of any alteration as such
because of codified and watertight laws which leave a very minuscule range of
the amendment.

LEGISLATION’S DEFINITION

According to Salmond: “Legislation is that source of law which comprises in the

assertion of lawful standards by a competent specialist.”

According To Austin: “Legislation is the command of the sovereign or the

superior authority which must be followed by the common masses backed by
sanctions”.

According to Gray: “Legislation implies the formal expression of the

administrative organs of the general public.”

Types of Legislation
Legislation can have numerous reasons, for instance, to direct, to approve, to
endorse, to give, to authorise, to allow, to proclaim, to confine and to annul.
Therefore in enacting any legislation and the rule of law, the welfare of the
citizens must be kept in mind and therefore, it is must be adopted in the best
interests of the citizens.Some different types of legislation are as follows.

SUPREME LEGISLATION

The Supreme legislation is the legislation adopted by the sovereign intensity of

the state. In this manner, some other authorities which are the organ of the
state cannot control or check it. It is considered incomparable as well as lawfully
powerful. An established piece of this rule can be found in Dicey’s book, ‘The
Law of the Constitution‘.

There is no legitimate restriction on its capacity. Indian parliament is likewise

preeminent. Even though there are different constitutional amendments upon
its capacity, it isn’t subject to any other administrative authorities inside the
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state. Therefore the sovereign jurisdiction of the state can’t be revoked,
cancelled or constrained by some other authoritative organ of the state.

The supreme legislation is that which has been recognized by the government’s
sovereign power. As a result, some of the state’s organs are unable to handle or
control it. It is thought to be exceptional as well as legally revolutionary. Its scope
is unrestricted in any manner. Similarly, India’s parliament is transcendent.
Regardless of the fact that there are various established revisions on its purview,
it isn’t reliant on any other state personnel. As a result, the state’s sovereign
region cannot be denied, dropped, or compelled by any other lawful organ of
the state.

Subordinate Legislation
Subordinate legislation will be legislation by some other authority than the
Supreme specialist in the state. It is made under the powers designated by
the Supreme authority. Such legislation owes its reality, legitimacy, and
continuation to the Supreme expert. It can be cancelled and abrogated anytime
by the power of the sovereign authority and therefore, it must offer an approach
to sovereign legislation. Subordinate legislation is liable to parliamentary
control. Five unique types of subordinate legislation can be distinguished.

The following are the different kinds of subordinate legislation:

Executive legislation: At the point when legislative powers are delegated by

the designated official to an executive, it is called executive legislation. Even
though the significant capacity of the official is to execute the laws and carry on
the organisation, he/she is continuously dependent on some subordinate
enactment powers. Today, for all intents and purposes of each law sanctioned by
the lawmaking body contains assignment statements giving law-making powers
by the official to the executive in order to enhance the statutory arrangements..
Colonial legislation: The nations which are not autonomous, and are under
the control of some other state have no Supreme capacity to make law. Such
countries can be in different classes such as colonies, domains, secured or trust
regions and so forth. The laws made by them are subject to the Supreme
legislation of the state under whose control they are. Therefore it is subordinate
legislation. England has had numerous colonies and territories. The laws made
by them for the self-government are subject to modification, nullification, or
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supersession by the legislation of the British Parliament. As the colonies are free,
accomplished freedom and practically all the British domains have an unlimited
power for legislation, hence sooner rather than later, we might have this class
of subordinate legislation no more in existence.

Judicial legislation: Powers delegated to the judicial system to make and

implement their own laws to maintain transparency in the judicial system of the
country. This will also ensure that there is no involvement of any other organ of
the government in the governance of the judicial system of the state.

Municipal legislation: Municipal bodies are offered powers to make bye-

laws concerning their neighbourhood matters. Bye-law made by a
neighbourhood body works inside its individual area. In India, such municipal
bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so
on. There is a move for allowing extensive powers to Panchayats. Along these
lines, there is a plausibility of extension of this sort of subordinate enactment in
our nation. Balwant Rai committee appointed by the Parliament gave some
parliamentary reforms needed in the Panchayat system of the country. The
recommendations were later on incorporated in the Constitution by 73rd
Amendment..

Autonomous legislation: At the point when the Supreme authority gives

powers upon a gathering of people to administer on the issues depended to
them as a gathering, the law made by the last is known as the autonomous
law and the body is known as a self-ruling body. A railway is an independent
body. It makes bye-laws for the guideline of its organisation, and so on. A college
is likewise a self-governing body. Even some universities in India have been
granted the status of autonomous bodies..

Delegated legislation: Delegated Legislation is legislation made by any

authority other than the legislature. It denotes the rules, orders, notifications,
bye-laws, or directions made by the executive authorities under the law passed
by the Parliament. It also means the output of the exercise of power. Delegated
legislation is further deemed necessary to meet the cases of emergency arising
of war, insurrection, floods, economic depression, epidemics, etc. The executive
must, therefore, be armed with rulemaking power so that it may initiate
appropriate remedial action immediately without waiting for the law to be
passed by the legislature which is a lengthy process.
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There are three procedures according to which delegated legislation can be
controlled

1.Procedural Control

2. Parliamentary Control

3. Judicial Control.

Advantages of Legislation as a Source of Law

Verifiably additionally the legislation has dependably been perceived as a
significant wellspring of law as contrasted and different sources. There are two
apparent explanations behind the legislation is viewed as a standout amongst
the most significant sources of law. Right off the bat, it includes setting down of
legitimate principles by the lawmaking bodies which the State perceives as law.

Besides, it has the power and authority of the State. It is hence said by Dias and
Hughes that conscious law-production by a legitimate power, i.e. the State is
called ‘legislation’ which gave that sovereign is correctly perceived as the
supreme power by the courts. Relative Merit of Legislation over Precedent and
customs have been discussed below.

Some main advantages of legislation are as follows.

1. Abrogative Power—It can change or annul old law, which control isn’t
controlled by different sources.
2. Effectiveness—It separates the elements of making law and
overseeing it between the Legislature and the legal executive.
3. Declaration — it gives that principles of law will be known before they
are authorised.
4. Reliance on Accidental Legislation — Legislation is independent and
emerges out of as the authoritative source of law it need not hold up
until the original case of legislation.
5. Unrivalled in Form — It is predominant in structure, brief, clear,
effectively available and understandable as against case law, which is
an increase of sense in a considerable amount of pointless issue.
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Precedent and Legislation
1. The legislation has its source in the process of law which is basically
enacted and enforced by the State while the precedent has its origin in
ancient and historic judicial pronouncements.
2. Legislation has an authoritative force on courts by the assembly.
However, precedents are made by the courts themselves.
3. Legislation signifies formal declaration of law by the governing body
though precedents are acknowledgement and use of new standards of
law by courts in the administration of equity, justice and good
conscience.
4. Legislation is ordered before a case emerges. However, the precedent
appears simply after the case has developed and taken for the choice
of the court.
5. Legislation is basically of an exhaustive structure while the extent of
legal precedent is restricted to comparable cases as it were.
6. Legislation is commonly and generally forthcoming while precedent
is retrospective in nature.
7. Legislation is announced or distributed before it is brought into power,
on the other hand, precedent comes into power on the double, i.e.
when the choice is articulated.
8. Legislation is finished with the goal of the lawmaking process yet it isn’t
so on account of the precedent. The precedent which incorporates
ratio decidendi and obiter dicta are expected to settle a particular
contest on the purpose of law once for all.
9. It isn’t hard for people, in general, to realise the law instituted by
lawmaking body yet the precedent dependent on the case law isn’t
effectively known to the general population. Now and again, the
attorneys who manage law are themselves oblivious about the current
case-law. Therefore it makes a precedent of an ambiguous nature.
10.Legislation includes law-production by deductive strategy while case-
law is made by resorting to an inductive technique.
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Legislation and Custom
1. The presence of legislation is basically by law, while customary law is
wholly accepted in a particular boundary.
2. Legislation is enacted out of hypothetical standards. However,
customary law becomes is adopted because of its very well and long
presence in history.
3. Legislation as a source is indeed a long lasting nature of law, as
contrasted to the custom which is the most established type of law and
is followed by a particular sect
4. The legislation is a fundamental characteristic for a present-day society
while the customary law was created in a crude social order.
5. Legislation is finished, exact, written in the structure and effectively
open. However, customary law is generally unwritten am non-
scriptum and is hard to follow.
6. Legislation results out of the deliberations while custom develops
inside the general public in the ordinary course.

Demerits of Legislation
There is no source of law which is perfect and totally complete in its form and
sense, some lacunas and loopholes could be easily found in every source of law
which is as follows in the case of legislation.

1. Unbending nature—Law in the legislation is inflexible though the law

in the precedents is versatile and adaptable.
2. In view of Hypothesis — Legislation, for the most part, continues
on speculative certainties, by considering the existing environment and
surrounding in which the established law is frequently observed to be
blemished in its application to the mind-boggling issues emerging in
genuine life though piece-scratches develop out of the commonsense
exigencies and convenience.
3. An excessive amount of Importance to the Wordings—Legislation
appends a lot of significance to its wordings. Thus, if the articulation is
faulty, the law in itself gets effectively turned. In the precedents, the
wording matters close to nothing as there is a genuine introduction
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which performs separate checks on the applicability of precedent as a
source of law. Same goes with the customary law as well.

Conclusion
Legislation is therefore regarded as the most important source of law in the
prevalent times. Hence it is considered to be the codified form of law which is
commanded by the sovereign to the common masses, and it becomes a
predicament situation to regard legislation as the authoritative source of law.

Legislation is one of the foremost and most important source of law in today’s
world. Most countries in today’s world regard legislation as an essential source
of law and follow this system of lawmaking. Although some lacunae and
loopholes are there which exists in the present form but then too the difficulties
such faced are relatively less than that faced from the other sources of law
viz. custom and precedent as legislation as a source of law tries to bring
uniformity by avoiding the ambiguity.
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Q. Explain Customs as a Source of Law.

Synopsis
• Introduction
• Definitions
o John Salmond
o C.K. Allen
o J.L. Austin
• Origin of Customs
o Sir Henry Maine
▪ Law by rulers under divine inspiration
▪ 2. Developing of Customs
▪ 3. Knowledge of law in the hands of priests
▪ 4. Codification
o T. Holland
• Types of Customs
o Customs without binding obligation
o Customs with binding obligations
▪ Legal Customs
▪ Conventional Customs
• Requisites of a Valid Custom
o Reasonability
o Conformity with Statute Law
o Certainty
o Consistency
o Antiquity
o Continuity
o Must be peaceful in its practise
o Must not be opposed to Public Policy
o Must be General or Universal
• Theories of Customs
o Historical Theory
o Analytical Theory
• Conclusion
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Introduction

In every society, the custom is prevalent and plays an important role to regulate
society. In earlier stages, the custom is the rules and regulations of society. Due
to the progress of society custom is modified and became an enforcement law
in society. So, the custom is one of the sources of law. With the progress of
society custom gradually diminish and legislation and Judicial precedents
become the main sources. Although the custom is generally accepted and
recognized as law by law courts provided it is proved to the satisfaction of the
court.

Origin of customs

Regarding the origin of customs, there are different views. According to

the Historical Jurists of Germany say that they originated from the “common
consciousness of people”. Another view is that they come into existence due to
necessity or convenience. Some say that “Man’s nature of imitation” is the main
cause of the origin of customs. Any particular conduct, imitated by a group of
people for a long time becomes a custom. There is a series of reputed Jurists
who assert that judicial decisions are the basis of custom. The custom was based
more on the primitive notions than on any logic or principle of justice. Solutions
were followed in similar cases and in this way it becomes custom.

In primitive societies, there was no external authority over people, yet people
organized themselves in cohesive groups with a mechanism for fairness and
liberty.People developed rules and regulations through spontaneous reaction to
their circumstances as well as a coordinated conscious decision to arrive at
them.Eventually, people started recognizing traditions, practises, rituals which
were prevalent in a certain territory or group, and saw how they formed a
systematized approach to social regulation.In Britain, Jurists and legislators
started studying these patterns, recording their prevalence, usage and
applicability. These came to be known as customs, which were then formalized
and put into legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.
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Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of

Themistes or judgments.” Themistes were judicial awards which were dictated
to the King by the Greek goddess of justice. He explained, “Themistes, Themises,
the plural of Themis, are the awards themselves, divinely dictated to the judges.

He described the development in distinct steps. These are:

1. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine sanction for their
commands. They were believed to be messengers of God, laying out the law for
the people.

2. Developing of Customs

Gradually, as people get into the habit of following the dictates of their rulers,
they develop into customary law, and becomes a part of people’s daily living.

3. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a minority, primarily

religious people. This is possible due to the weakening of the power of the rulers
over people. Priests study customs, recognize patterns, understand their
relevance and formalize customs.

4. Codification

The last and final stage is that of codifying these laws. Priests study
customs meticulously and put it on paper. This code is then promoted and
spread to newer areas and territories.

T. Holland

According to Holland, “custom is a generally observed course of conduct”.

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Holland says that custom originated in the conscious choice by the people of the
more convenient of the two acts.

For Holland, customs grow through imitation. In early political societies the king
or the head of the society did not make laws but administered justice according
to the popular notions of right and wrong, whichever were enshrined in the
course of conduct pursued by people- in general. What was accepted by the
generality of the people and embodied in their customs was deemed to be right
and which was disapproved by them or not embodied in their customs was
deemed to be wrong.

Definitions

John Salmond

“Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of justice and public utility.”

For Salmond, a valid custom has absolute legal authority which as the force of
law in itself. He divides Customs into two:

1. General Custom – A general custom has the force of law throughout

the territory of a state. For example, the Common Law in England.
2. Local Custom – The local custom are those which operate have the
force of law in a particular locality. The authority of a local custom is
higher than that of general custom.

C.K. Allen

C.K. Allen defines custom as “legal and social phenomenon growing up by forces
inherent in society—forces partly of reason and necessity, and partly of
suggestion and imitation.”
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J.L. Austin

“Custom is a rule of conduct which the governed observe spontaneous and not
in pursuance of law settled by a political superior.”

Austin’s ideas were often seen in contravention to customary law because for
him, the political superior was the only source of law and customs were not ‘real
law’. They needed the assent and command of the Sovereign to be considered
law.

Types of Customs
There are two broad categories into which customs can be divided. These are
customs without binding obligation and customs with legally binding
obligations.
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1. Non-Binding Customs

These are those customs attached with no sanctions and are non-obligatory in
nature. Though it is not mandatorily to be pursued, the long-standing practice
inculcated people with the fear that if they don’t abide by it, they will end up
facing social consequences from their own community. For instance, all the
Hindu temples in India have an entrance restriction for women that they are not
allowed to enter the temple during their menstrual period.

Likewise, there is an old tradition that many temples are still following is the
prohibition of women between the ages of 10 to 50 from entering the temple
premises. Although these kinds of traditions are not backed by any reasonable
law or sanction as it is being a discriminatory practice that violates Article 14 of
the Indian Constitution, the majority of women themselves acquiesce to it
because of social pressure. Thereby, non-binding customs can be called social
customs.

2. Binding Customs

These are those customs backed by sanctions and enforced by the state. A
custom acquires legal character only if it satisfies the essentials that determine
its validity/recognized by the court of law. Binding Customs are enforceable as
it regulates the social relations of the people. Intestate succession and
inheritance of property can be the best example of Binding customs. Further,
Binding Customs are categorised into Legal customs and Conventional customs.

(a) Legal Customs: The customs, which are recognised by the court of law,
become a part of law of the land, and operate as binding rule of law are Legal
customs. These customs are certain and absolute. For instance, if a Hindu
marriage is not solemnized i.e. performed without any customary ceremonies
and rituals will not be considered to be a valid marriage. Children born of such
wedlock may happen to carry the title of illegitimate children.

• Local Customs: Customs that prevail within a specific geographical

area will be called local customs. Sometimes, it may not confine to
a locality that is to a village, town, or district, as these customs
travel with the families or sections to whichever place they go.
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• General Customs: These customs prevail throughout the territory
of the state/country and become the law of the land. Back then, the
general customs were considered to be the sole source of British
common law, but not precedents and statutes transcend customs
in being the source of law.
(b) Conventional Customs: The conditions binding on the parties to the
contract/agreement are Conventional Customs. According to Salmond ‘, A
conventional custom is one whose authority is conditional on its acceptance and
incorporation in an agreement between the parties to be bound by it.’

Requisites of a valid custom

1. Reasonability

A custom must be in conformity with basic morality, the prevailing

understanding of justice, health and public policy. If it is not reasonable in its
origin or practise, it cannot be considered a valid custom. For example, Sati was
an accepted custom once, but with the modern moral understanding, it is
reprehensible, and therefore it cannot be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality
or ethical concerns, or contain eternal wisdom, it just needs to be relevant to
contemporary times, useful and capable of being legislated on.

2. Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practise,
however widespread and accepted, if found in violation of any statute of a said
territory cannot be considered a custom.

3. Certainty

It must be clear and unambiguous as to what the custom is and how it is

practised. A custom can only hold up in a court of law when it is not indefinite
or uncertain. It needs to be absolute and objective in theory and in action.
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4. Consistency

A custom must be consistent with the general principles of Law which form the
basis of every law or statue which exists. These principles form the basis of ideas
like Justice, fairness and liberty, and every custom must be in consonance with
these.

5. Antiquity

It is necessary for the custom to have been followed for time immemorial. The
practise must be so ingrained in society, that legislating it seems like the only
natural step. Recent or modern practises cannot be custom until they become
firmly established in society.

6. Continuity

A custom must not be interrupted or its practise must not be sparse. It needs to
be continuing for time immemorial without any interruption.

7. Must be peaceful in its practise

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be

considered a custom.

8. Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom is operating in, has
to be conformed to.

9. Must be General or Universal

According to Carter,“Custom is effectual only when it is universal or nearly so. In

the absence of unanimity of opinion, custom becomes powerless, or rather does
not exist.”
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Theories of Customs

Historical Theory

As indicated by this school, custom contains its own legitimacy, since it would
not exist at all except if some profound needs of the general population or some
local nature of societal needs offer validity to it.

The development of law does not depend upon the subjective will of any person.
It because of the knowledge of the communities and civilizations that have
existed throughout history.

Custom is achieved from the common conscience of the general population. It

springs from an innate feeling of right. Law has its reality in the general will of
the people. Savigny calls it “Volkgeist”.

Analytical Theory

Austin was the main proponent of the Analytical theory. For him, Customs did
not have any legally binding force in themselves. Their legal character is always
subject to the assent of the Sovereign. For him, customs were merely reflection
of law, and were not ‘real law’. Customs need the modification and the approval
of judges, jurists or rulers for them to have any binding force on people. This is
in consonance with his idea that all law is the ‘Will of the Sovereign”.

Conclusion
Therefore, it can be seen that Customs are a very important source of law, which
have their historical roots in the earliest and most primitive of societies, and still
hold relevance. Society is constantly in the process of establishing newer
practices which might in due time turn into usages or customs.

We depend on customs and are governed by them, knowingly or not. The English
Common law can be interpreted as a formalization of existing customs, and
therein lies the importance of having the right customs in society.
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Q. Explain Judicial precedent is a source of Law.

Introduction
Judicial precedent is important source of law. It is a distinguishing feature of the
English legal system because most of the common law is unwritten and owes its
origin to judicial precedents. Precedents have a binding force on judicial
tribunals for deciding similar cases in future. Judicial precedent is the source of
law where past decisions create law for judges to refer back to for guidance in
future cases. Judicial precedents based on the principle of stare decisis are also
a source of law as they offer a backbone or support to rely on, in cases with
similar facts.

Treaties and conventions on an international level are also used to make law as
with increased globalization, all the countries are required to interact with each
other more than before. Justice, equity and good conscience have always been
what law and decisions must be based on. In the absence of any one of these,
the decision will be held to be arbitrary or unconstitutional and eventually struck
down. Therefore, if a judicial precedent speaks with authority and that the
principle which it contains would be binding in future cases, precedent then
becomes an important source of law, but not the sole source of law.

Definition
In general, the term precedent means, ‘a previous instance or case which is, or
may be taken as an example of rule for subsequent cases, or by which some
similar act or circumstances may be supported or justified.’
1. According to Gray, ‘ precedent covers everything said or done, which
furnishes a rule for subsequent practice.’
2. According to Keeton, ‘a judicial precedent is judicial to which authority has
in some measure been attached.’
3. According to Salmond, ‘in a loose sense, it includes merely reported case
law which may be cited & followed by courts.’ In a strict sense, that case
law which not only has a great binding authority but must also be
followed.
4. According to Bentham precedents are ‘Judge made Law.’
5. According to Austin precedents are ‘Judiciary’s Law.’
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.

Meaning of Judicial Precedent: –

Judicial precedent means the process whereby judges follow previously
decided cases where the facts are of sufficient similarity. In judicial precedent,
similar cases have been decided in the past. Judicial precedents based on the
principle of stare decisis are also a source of law as they offer a backbone or
support to rely on, in cases with similar facts. Judicial judgment is therefore
based on the ‘doctrine of stare decisis’, namely to “stand according to the
decision already made”.

A Judicial precedent is a principle or a rule or judgement that was declared

or laid down in a previous legal case. It is binding or advisory on tribunals and
courts when a similar case with similar facts arises before it. These are nothing
but previous legal decisions that have been taken by judges in similar cases in
these courts that provide an outline as to what must be held in similar cases that
arise before the court or similar cases that arise in lower courts or similar cases
that arise before a lesser bench. A lesser bench is when the number of judges is
lesser than those that decided the case that the new bench will be basing their
decision on.

In the 18th century, the Government of India Act, 1935, held that decisions
made in Federal courts and in the Privy Councils would be binding on the courts
during the reign of the British. Since the 18th century, precedents have been a
legal characteristic of the Indian legal system and have helped many judges form
decisions and reverse decisions that later on were found to be arbitrary or
mindless.
There is a term, called the ‘doctrine of stare decisis’, which states that
the judgment of the court is an example to be followed in future cases of a
similar nature. The reason a precedent is recognized is that the judiciary’s
decision is considered correct. The use of precedent helps to gain confidence in
the litigation judicial system. The administration of judicial decisions is just and
fair.
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Types of precedents
1. Declaratory and Original: In declaratory precedents, the mere
application of a rule in a previous legal case is used. Original precedents
result in the creation of new laws. Here new laws are created and
applied. An example can be where we considered that the power to
amend the constitution was not restricted till it was decided that limits
must be placed on the same and that all laws in the Ninth
Schedule henceforth must also be tested against the basic structure.
2. Persuasive: Here the precedent is not necessarily needed to be
followed. The judge will rely heavily on this case and take it into
consideration. It is not directly considered as a source of law but is seen
as a form of historical precedents. This is usually seen in High Courts,
where the judgements in one High Court can be considered as
persuasive precedents in another. This can be seen when similar cases
arise in various High Courts the verdict can be made by relying upon
judgments from other High Courts. They will not be binding but will be
persuasive and will act in favour of the litigating party in whose favour
the previous verdicts have been made.
3. Absolutely authoritative: In these cases, the verdict that has been
earlier must mandatorily be followed by the judge. Even if the judge
thinks that it is a wrong judgement they are required to follow that
precedent because of sheer numbers. This is usually seen in cases
where the bench is smaller than the bench that decided upon the
precedent that the judge is relying on. This is also possible in cases of
hierarchy, where certain courts have to rely on decisions made by
superior courts.
4. Conditionally authoritative: In this case, the precedents by a general
rule are considered authoritative but can be disregarded in cases of the
parties appearing before the Supreme Court. The decision can also be
overturned. An example can be where we considered that the power
to amend the constitution was complete till it was decided that limits
must be placed on the same and that all laws in the Ninth Schedule,
henceforth must also be tested against the basic structure.
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Position of Judicial Precedent Under Indian Law

Position in Supreme Court-

According to Article 141 of the Indian Constitution, the law declared by it shall
be binding on all courts within the territory of India .The expression “all court
“used in this article obviously means court other than the supreme court .The
decision of the supreme court is binding on the high court and cannot be ignored
by it on the ground that relevant provisions were not brought to the notice of
the supreme court, and hence its decision is not binding.

The doctrine of precedent in the Supreme Court of India can be better

understood by reference to the following point: –

1. The Supreme Court is not bound by its own previous decisions. However, a
smaller bench is bound by the decision given by a larger bench.

2. The Supreme Court is not bound by the decisions of the Privy Council and
the federal court of India. They only have a persuasive value in the Supreme
Court. However, they command great respect in the Supreme Court.

3. The Supreme Court is not bound by the decisions of foreign court like the
supreme court of USA or UK.

Some Important Cases of Precedent: –

• Bengal Immunity co ltd VS state of Bihar, AIR 1955 SC.

• Sajjan Singh VS State of Raj, AIR 1965,SC.
• Golak Nath VS State of Punj, AIR 1967 SC
• Kesavananda Bharati VS State of Kerala 1973 ,4 SCC

Position in High Court-

There are 25 High Courts in India for 29 state and 7 Union Territories .Every High
Court is headed by a Chief Justice .The National Capital territory of Delhi is the
only Union Territory to have a separate High court.

Article 141 states that, “the law declared by the Supreme Court shall be binding
on all courts within the territory of India “.The term “law declared” means not
only the ratio decidendi of a decision but it includes an obiter dictum also,”
provided it is upon a point raised and argued.” Judicial propriety dignity and
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decorum demand that being the highest judicial tribunal in the country even the
obiter dictum of the Supreme Court should be accepted as binding.

1. Every High court is absolutely bound by the decisions of the supreme court of
India.

2. The Subordinate courts within the jurisdiction of a High court are bound by
the decisions of that High court.

3. A single judge bench of the High court is bound by the decisions of a division
bench (2 judge bench) a full bench (3 judge bench) of the same High court.

4. The decisions of one High court only have a persuasive value before other
High court and the Subordinate courts falling within the jurisdiction of other
High courts.

5. The High courts in India are not bound by the decisions of foreign courts.

Position in Subordinate Court: –

There are various Subordinate courts in India at state level like District and
Session court, Magistrate’s court, Civil court, etc. These Subordinate courts are
bound by the decisions of the Supreme Court.

Relevance of judicial precedents

India has a unified judicial system with a single constitution. This means that
there is only one Judiciary that is responsible for the interpretation of the
Constitution. The Apex Court is the ultimate interpreter. This is a part of the
basic framework of our Constitution. We are Federal with a strong Centre, unlike
the United States where they follow federalism in the true sense. This was done
with the view of ensuring that the various provinces while having their own State
Legislatures are held together by a strong centre. This was to make sure that
riots and protests do not break out in the newly formed nation that had not only
been ruled by the Britishers but had also recently witnessed a partition that
resulted in a refugee crisis as severe as the refugee crisis in Europe after the
Second World War. The person who is best equipped to make a decision is the
Supreme Court and its judges. There arises no question as to who the most
effective, appropriate and the only body must be, while interpreting the law. It
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is the Supreme Court. In these cases, judicial precedents allow us to make sure
that the law of the land is uniform.

Nature of judicial precedents

A. They must be purely constitutive and not abrogative at all. This means that a
judicial decision can make a law but cannot alter it.
B. They cannot substitute their opinions for the established rule of law.
C. Where there is a settled rule of law, It is the duty of the judges to follow the
same.
D. The function is limited to supplying the vacancies of the legal systems, filling
up with new law the gaps that exist.

What are the advantages of Judicial Precedent?

The advantages of Judicial Precedent are as follows: –

1. All people dealing with the same case are treated equally and there are
equality and fairness of justice.
2. It serves as guidelines to decide future cases.
3. For example, time is saved and convenience increases because the
question once is already settled and this saves the time and labor of
judges and lawyers.
4. Precedents help formulate new statutory laws and adjust to the
changing circumstances of society.
5. Cases that make them more practical.
6. The binding precedent establishes a rule that helps maintain stability.

What are the disadvantages of Judicial Precedent?

The disadvantages of Judicial Precedent are as follows: –

1. A precedent bound a lower court to follow it which sometimes forces it
to take less or harsher decisions, which does not require in a case.
2. There are many examples of many cases and hence it becomes difficult
to apply the right example in the right case.
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3. It is not mandatory to follow a precedent when a case is distinguished.
4. Some situations are not recognized under precedent because they are
not taken into consideration.

Importance Of Precedents

In the Ancient Legal System:

The importance of the decisions as a source of law was recognized even in very
early times. In the past, there have been numerous instances of this. In the
Mahabharata, it has been stated that ‘The path is the right one which has been
followed by virtuous men.’ This may be interpreted as giving a theory of
precedent. In ancient legal systems of Babylonia and China, the judicial decisions
were considered to be a great authority, and later on, they were embodied in
code law.

In the Modern Legal System:

Among the modern legal systems, the Anglo – American law is judge made law.
It is called ‘Common Law’. It developed mainly through judicial decisions. Most
of the branches of law, such as torts, have been created exclusively by judges.
The Constitutional Law of England, especially the freedom of the citizens,
developed through judicial decisions.

Not only in the municipal law but in international law also, the precedents have
their importance. The decisions of the International Court of Justice are an
important source of International law. These precedents have been recognized
by the International Court of Justice by Article 38(2)(d) of the Statue of the
International Court of Justice. Further, Article 59 of the same holds that the
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decisions of the court only have persuasive value for future cases and hence the
International Court of Justice is not bound by its own decisions in deciding
similar cases in future. It holds that the decision is only binding the parties to the
case.

Circumstances which Destroy the Binding Force of Judicial

Precedents:

Once a decision is overruled by any subsequent ruling, it loses all its binding
authority. But there are certain other circumstances which also destroy or
weaken the binding force of judicial precedent in the partially or totally they are
as follows:-
1) Ignorance of statute:
2) Inconsistency between earlier decision of higher court:
3) Inconsistency between early decision of the court of the same rank:
4) Precedent sub silentio:
5) Decision of equally divided court:
6) Dissenting judgments:
7) Erroneous decisions:
8) Abrogated decisions:
9) Affirmation or reversal on a different ground:

1) Ignorance of statute:
A precedent is not binding if it be rendered in ignorance of any statute or any
other rule having the force of statute. It is also not binding if the court had the
knowledge of the existence of the statute but it failed to appreciate its relevance
to the matter in hand due to negligence or ignorance.

2) Inconsistency between earlier decision of higher court:

A precedent loses its binding force completely if it is inconsistent with the
decision of a higher court. Thus the court of appeal in “Young V/s. Bristol
Aeroplane Corporation Limited (1944) KB 718 (729)” observed that it is bound to
follow its own previous decisions as well as those of court of co-ordinate
jurisdiction. However the court is bound to refuse to follow a decision of its own,
which do not expressly overruled, cannot, in its opinion, stand with the decision
of the house of lords or if it finds that there is inconsistency between its earlier
decision.
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3) Inconsistency between early decision of the court of the same rank:
A court is not bound by its own earlier decisions which are conflicting with each
other the conflict may arise due to inadvertence, ignorance or forgetfulness in
not citing earlier decision before the court. In such a case the earlier decisions
are not binding on the court.

4) Precedent sub silentio:

A decision is said to be sub silentio when the point of law involved in it is not
fully argued or not perceived by the court. The decision in “Gerard vs worth of
Paris limited (1936) 2 ALL ER 905 (CA)” is a good illustration to explain a
Precedent sub silentio. In this case an employee who was discharged by the
defendant company obtained damages for his wrongful dismissal against the
company. He applied for a grainshee order on a bank account of the company
which was in the name of liquidator. The only point argued was priority of
claimant debt and the court of appeal granted the order. The question whether
a grainshee order could be properly made on a account standing in the name of
liquidator was never argued or considered by the court. Therefore when this
very point was argued in a subsequent case before the court of appeal the court
held itself not bound by the previous decisions as the point was sub silentio in
the previous case.

5) Decision of equally divided court:

There may be cases where the judges of the appellate court are equally divided.
In such a case practice is to dismiss the appeal and hold that the decision
appealed against is correctly decided. But this problem does not arise now a
days because benches are always constituted with an even number of judges. In
India, however, where the judges in a Division Bench of a High court are equally
divided, the practice is to refer the case to a third judge who is decision shall be
treated as final unless it is set aside by the Supreme Court.

6) Dissenting judgments:
Most judicial decisions are an unanimous. But at time few judges may write or
even note a dissent in the case in which they disagree with the majority.
However, while judges are free to differ on judicial matter and interpretation of
law in a case in hand but there is always an effort on the part of the majority to
minimise or even eliminate dissent. The dissenting judgment do not in any way
undermine the authority or authenticity of law because they provide scope to
correct errors of law due to blindly following the doctrine of precedent. For
instance, just take the question whether and to what extent freedom under the
constitution should be interpreted to allow ‘live in relationship’ which has
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cropped up as a crucial social problem in India in recent decades. The society
copes up, manages and out grows with such problems but rarely solves it. There
is always a scope for dissent when such questions come up for adjudication
before the higher Courts. Judges decide such issue on basis of their own life
experiences and there is always an scope of possibility that a dissenting note of
a particular judge may become a ratio in a case in future due to overruling of
case wherein such dissent was recorded.
7) Erroneous decisions:
The decisions which are founded on misconceived principles or in conflict with
the fundamental principles of law lose their binding force totally.

8) Abrogated decisions:
A decision cease to be binding if statute inconsistent with it is subsequently
enacted. So also it ceases to be binding if it is reversed, overruled or abrogated.
If a decision is wrong or irrational, it may be abrogated by a subsequent
enactment or decision of a higher court.(This is expressed in latin maxim:
“cessante ratione legis cessat ipsa lex”)

9) Affirmation or reversal on a different ground:

When higher court either affirms or reverses the judgment of the lower court
on a ground different from that on which the judgment rests, the original
judgment is not deprived of all the authority but the subsequent court may take
a view that a particular point which the higher court did not touch, is rightly
decided.

Case Law of Judicial Precedents

1. Vishakha and others vs. State of Rajasthan (Air 1997 SC 3011)
It is considered one of the historical cases in India as the case was the first of its
kind to protect women at their work sites. The case has its roots in the
recollection of Bhanwari Devi, who was a social worker and was gang-raped by
men on the upside, as she opposed child marriage.

The determination of Bhanwari Devi attracted many women and a public

interest petition collectively under the forum of Visakha for violation of Articles
14,15,19 (1) (g) and 21.

The decision given by the bench of JS (PIL) induced to file. Varma, Sujata
Manohar and BN Kripal gave Vishaka guidelines to protect women from sexual
harassment at the workplace, later it was changed in 2013 to the Sexual
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Harassment of Women in Workplace Act, 2013, one of the biggest victories of
women enabled.

Conclusion
Precedents work like a beacon to all courts. Precedents bring conviction in law.
It assists lower court judges in applying the law accurately. A few times the
judges may defend their decisions with the assistance of the Precedents. While
statutes made by the legislature set out the overall standards to be applied in
the settling of disputes, the final interpretation of those principles is done by the
courts. The principle of Precedents formulates on the rulings of courts, normally
binding on the subordinate courts in cases where the facts and issues are similar
or indistinguishable. Though the major advantage of precedents is that it is
binding, which might block the advancement of law which is vital with changes
in the society the court needs to keep the harmony between the need for
conviction and progression and the wish for development and improvement of
the law.

1.

Q. What does Stare Decisis mean?

Introduction
The term ‘Stare Decisis’ originates from Latin. It means ‘to abide by things
decided.’ The doctrine of Stare Decisis is used by all courts in all cases/legal
issues. A doctrine is nothing but a principle or instruction, however, it is not
essentially a hard and fast rule that can not be broken. For instance, if the
Supreme Court passes a judgement and it becomes a precedent, then as per the
doctrine of Stare Decisis, the lower courts must follow such a judgement. The
same principle has been mentioned in Article 141 of the Constitution.

The doctrine of Stare Decisis means that courts refer to the previous, similar
legal issues to guide their decisions. Such previous decisions that courts refer to
are known as “precedents”. Precedents are legal principles or rules that are
created by the decisions given by courts. Such decisions become an authority or
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an example for the judges to decide similar legal cases/issues in the future. The
doctrine of Stare Decisis creates an obligation on courts to refer to precedents
when taking a certain decision.

Meaning of Stare Decisis: –

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 the legal principle which requires judges to abide by and respect
the precedents laid down by similar prior decisions. The Latin maxim, Stare
decisis et non quieta movere which means, “to stand by decisions and not
disturb the undisturbed” forms the basis of this legal principle. In the legal
context, judges interpret as meaning to not disturb already settled matters to
allow for continuity. If varying judges gave their opinion in different matters in
different courts, having similar facts would lead to chaos and many parties
would feel like their rights have been infringed and they would feel helpless and
like justice has not been served to them. This doctrine is basically a rule or a
requirement that a Court must follow the rules established by a superior court.

Illustration on the doctrine of Stare Decisis

Let us assume that James borrows Bond’s bike while James is on a holiday. Bond
does not ask James for permission to borrow his bike. Bond accidentally crashes
and breaks James’s bike, but he does not tell James about it. Later, Bond simply
places back James’s bike at James’s garage. When James returns home and
discovers his broken bike, he demands that Bond must buy him a new one. The
two bring their issue before the court, and the Court decides in favour of James
stating that Bond is liable and owes James the money required for James to fix
his bike, however, Bond does not have to buy James a new bike.

The aforesaid judgement given by the court now becomes precedent. Now
onwards, based on the precedent established in this case, the lower courts in
the same jurisdiction must abide by this new rule i.e., whenever a borrower
breaks a thing or an item belonging to a borrowee and such borrower was using
the borrowee’s thing or item without the permission of the borrowee in the first
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place, then the borrower is liable to pay as far as the damages done by them to
the borrowee’s item. The lower courts must follow this newly established
precedent because the doctrine of Stare Decisis obligates them to do so.

Position in India
The doctrine of Stare Decisis did not exist in India during the ancient or
mediaeval period. It was only during the advent of British rule in the country
that the concept of binding precedent was introduced and applied in India. The
adoption of the doctrine of Stare Decisis was suggested by Dorin in the year
1813. The British legal establishment led to the concept of the hierarchy of
courts along with the reporting of decisions, these two elements are the
preconditions for the functioning of the doctrine of Stare Decisis.

The Britishers established the Sardar Diwani Adalats and the Supreme Courts at
Calcutta, Bombay and Madras. The High Court Act, 1861 was enacted enabling
the establishment of High Courts by the issue of letters of patent. Such High
Courts had original and appellate jurisdiction. Therefore, a system of hierarchy
of courts was established by the Britishers.

The Government of India Act, 1935 distinctly made the decisions of the Federal
Court and the Privy Council binding on all courts in British India and in this way
the doctrine of Stare Decisis gained statutory recognition in India. However, the
Federal Courts were not bound by their own decisions. Post-independence, the
doctrine of precedent continues to be followed in India.

Article 141 of the Constitution of India, 1950 establishes that the ‘law
declared’ by the Supreme Court of India is binding on all courts within the
territory of India. The term ‘law declared’ implies the law-making role of the
Supreme Court. However, the Supreme Court is not bound by its own decisions.
In Bengal Immunity Co. v. the State of Bihar (1955), the Apex Court held that
there is nothing in the Indian Constitution that prevents the Supreme Court from
departing from its own previously made decision if it is convinced of its error
and the detrimental effect such decision might have on public interest. As far as
the High Courts are concerned, the decisions of the High Courts are binding on
all subordinate courts within the jurisdiction of such High Courts. In the case
of Suganthi Suresh Kumar v. Jagdeesham (2002), the Apex Court held that a High
Court does not have the permission to overrule the decision given by the
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Supreme Court merely based on the ground that such decision given by the
Supreme Court had laid down principles without considering any of the legal
factors. Further, in the case of Pandurang Kalu Patil v. State of Maharashtra
(2002), the Supreme Court had further reiterated that the decisions of the High
Court shall be binding until the Supreme Court overrules them.

Doctrine of Stare Decisis under Article 141 of the Indian Constitution

The Constitution of India, 1950 under Article 141 states that when the Supreme
Court declares any law then such law shall be binding on all courts that are
within the territory of India. Article 141 further states that the ratio decidendi
of a case shall be binding and not the obiter dicta or the facts of the case. Thus,
whenever a lower court wants to follow or apply the decision of the Supreme
Court, the law laid down by the Apex Court in such a decision must be
interpreted correctly in the case at hand.

Binding nature of the doctrine of Stare Decisis under Article 141 of the Indian

Constitution

• All the courts within the territory of India are bound by the law to abide
by the decision of the Supreme Court. The lower courts are bound to
hold a uniform and constant approach towards the principle of
following such a decision given by the Apex Court.
• The Supreme Court is however not restricted or bonded by its own
judgement or decision. Even special leave petitions are also binding in
nature, they must be followed by the lower courts. The reasons such as
mere procedural irregularity or immateriality do not alone invalidate
the binding nature of the judgement or decision.
• A judgement passed by the higher court can be considered as a
precedent by the lower courts if and only when such judgement is
capable of resolving a legal matter.
• The decision given by the court must be read together as a whole.
Further, the observations from such a decision given by a higher court
must be determined in accordance with the questions presented
before the court.
• In certain cases, the bench might be of different opinions and in such
cases, the opinion that has the support of the majority shall prevail as
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a precedent. In the case of Siddharam Satlingappa Mhetre v. State of
Maharashtra and Others. (2011), it was held by the Apex Court that the
judgement of a bench that is larger in strength shall be binding not only
on a judgement of a bench smaller in strength but also on a Bench of
Judges of co-equal strength.
• The cases where the Supreme Court has pronounced ex-parte
decisions, even though one of the parties to the case was not present,
still such decisions can be considered as a precedent.

Non-binding nature under Article 141 of the Indian Constitution

• The decisions that are not expressed properly. In the case of State v.
Synthetics and Chemicals Ltd. and Anr. (1991), it was stated that a
decision that lacks expression and rational grounds and further where
it did not proceed on consideration of the legal issue, such decision
shall not have a binding effect as per Article 141 of the Constitution of
India.
• The decisions that are not founded on appropriate grounds.
• The decisions that did not proceed based on consideration of the legal
issue. In the case of Dr. Shah Faesal and Others v. Union Of India and
Another (2020), it was observed by the Supreme Court that only the
principle laid down in a judgement shall be considered as binding law
under Article 141 of the Constitution.
• As per the doctrine of Stare Decisis, the Obiter dicta of a case is not
binding, thus it cannot be considered solely as a reason to declare any
statutory rule invalid. It only has a persuasive value.
• The decision rendered per incuriam is not binding in nature. This means
any decision made on per incuriam, must not be used as a precedent.
• In the case wherein the decision is rendered sub-silentio, even then
such decision is not used as a precedent. Sub-silentio means when a
question of law was not correctly and reasonably determined.
• The scenario wherein the Court’s observations regarding the facts of
the cases are not binding.
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Important Case Laws

• Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 In this
case it was held by the Supreme Court that there is nothing in the
constitution which prevents this court from setting aside the
previously held decision, If there was an error previously.
• Golanath v. State of Punjab, AIR 1967 SC 1643 In this case
Supreme Court reversed its previous decision and held that
fundamental rights cannot be amended through Article 368 of
Indian Constitution.
• Manganese ore (India) Ltd. V Regional Asstt. CST, (1976) 4 SCC
124 It was held that the doctrine of stare decisis is very important
principle of precedent and cannot be set aside until there are any
extraordinary reasons for it.

Merits of Stare Decisis

• Certainty: This doctrine brings certainty in law. If the courts do
follow the precedents and starts deciding and determining issues
every time afresh without considering the previous decisions law
will definitely become uncertain. A good Justice System should have
certainty in it.
• Saves Time and Resources: It is well decided fact that question
which has been decided should be settled and should not be subject
to any re argument in every case. It will surely save the labor of the
judges and lawyers. Thus it saves time and resources.
• Flexibility: Although Stare Decisis says that court has to follow the
precedents but in the same time this principle allows room to
overturn previous decisions and make new ones. This let law to get
evolved with the changing period of time.

Demerits of Stare Decisis

• Rigidity: There are times when stare decisis brings flexibility in the
law but sometimes it is hard to overrule previous erroneous
decisions. This might set a bad example for the society.
• Dilemma: Sometimes various conflicting decisions of the Superior
court might put the judge of the lower court in the dilemma. There
is a provision that the lower court should choose between the two
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conflicting decisions of the superior court. This makes law uncertain
in nature.
Conclusion
Legislature provides statutes and enactments which lay down general rules; it is
the court which has the final authority to interpret those laws. Doctrine of Stare
Decisis ensures that there is uniformity and certainty in the existing law. It also
saves a large amount of time and workload. Coming on to India article 141 of
the constitution clearly upholds this doctrine. There are certain case laws which
have interpreted this article and gave friendlier look of it.

Q. Doctrine of Prospective Overruling

Introduction
Right from the 18th-century, the concept of Stare decisis enrooted in precedent
has been maintained over time as a feature that exalted our legal system. It was
pioneered and developed in the British Court of law to fulfill inadequacies of
sources that arise from lacunae in keeping the records. As far as India is
concerned, the notion of precedent was brought explicitly by the Government
of India Act, 1935, since it has affirmed the binding nature of federal courts and
the Privy Council’s decision over the other courts in British India. Later, it was
reaffirmed through Article 141 of the Indian Constitution. In general, the
precedents are considered to be the nemine contradicente common thread that
connects the traditional and contemporary facets of law.

It is a well-settled principle that judicial decisions are meant to enunciate the

existing law by resolving the ambiguities. In such a way, when a court decides a
case, its decision applies to that particular case, and its rationale holds a binding
authority over all future date cases of a similar issue. This concept of precedent
has been enrooted in Article 141 of the Indian Constitution, as it stipulates that
the law declared by the Supreme Court shall be binding on all courts within the
territory of India.[1] Similarly, the Doctrine of prospective overruling provides
that the decision of such a case only has a prospective operation but not
retrospective operation.
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Historical Background

It is pertinent to note that the Doctrine of prospective overruling was a

derivative of the retrospective notion of precedent, invoked and applied in the
case of I C Golaknath v. State of Punjab[2] by Chief Justice Subba Rao. Despite
being the subject of controversy, it seized its place in the Indian jurisprudence.
The Doctrine of prospective overruling was propounded by Justice
Cardozo and Justice Lerned Hand, as it narrows down the vague operational
scheme of judicial pronouncements. The Doctrine was adopted from the
American jurisprudence, where there are two principles viz.

• Blackstonian Theory or Blackstonian view of Law (Traditional

retrospective overruling), and
• Prospective overruling.
The renowned case, where Justice Cardozo articulated this Doctrine of
prospective overruling was Great Northern Railway v. Sunburst Oil & Refining
Company.[3]

As far as India is concerned, the Apex Court expounded the former in

the Golaknath case as the common law rule that the duty of the Court was “not
to pronounce a new rule but to maintain and expound the old one”. It means the
Judge does not make law but only discovers or finds the true law. The law has
always been the same. If a subsequent decision changes the earlier one, the
latter decision does not make law but only discovers the correct principle of law.
The result of this view is that it is necessarily retrospective in operation[4].

Thus, if Supreme Court interprets any particular provision of a statute, it is not

laying down a new law but elucidating the existing one, whereby it has a
retrospective operation of overruling. Consequently, the litigants will bear the
ramifications, especially those whose case has attained the finality. Here comes
the need for the Doctrine of prospective overruling to obviate such a hardship.

The latter dictates that a decision made in a court of law will only have the
prospective operation i.e. future decisions, and will not carry any retrospective
effect i.e. over the past decisions. Undeniably, constitutional courts have never
failed to uphold this Doctrine. For instance, in the case of Sarwan Kumar v.
Mandal Lal Aggarwal, the Apex court explained the subject as “Under the
doctrine of prospective overruling the law declared by the Court applies to the
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cases arising in future only and its applicability to the cases which have attained
finality is saved because the repeal would otherwise work hardship to those who
had trusted to its existence.”

Meaning of Doctrine of Prospective Overruling

The word ‘prospective’ implies that future application or operation or

efficacious implication. In layman’s terms, the terminology ‘overruling’ denotes
the act of setting aside a precedent or judicial pronouncement. Thus, the
collective comprehension connotes that a judicial decision only has a
prospective effect i.e. it has a prescriptive authority over future cases, but will
not affect the original suit. In other words, if a dispute has been settled or
resolved before a court, it will be a conclusive resolution and will not be declared
invalid by any subsequent change of law. Through the eyes of Justice Cardozo,
the non-application of this Doctrine of prospective overruling is a profound
injustice.

Example

If a principle has been laid in the case of AB v. DA and the same has been
overruled in the case of SA v. ED. Pursuant to this Doctrine of prospective
overruling, the decision of the original suit i.e. AB v. DA will not be changed, but
at the same time, the decision of SA v. ED will have a prospective operation, so
that it applies to future cases.

Scope of Doctrine of Prospective Overruling

In the renowned Golaknath Case, the minority bench was against the
implication of the Doctrine of prospective overruling. The objections raised are
as follows,

• This Doctrine facilitates the judiciary to interfere in the work sphere

of the legislature.
• Hardly conducive to encourage parties to go for appeals, which is
again trouble enfolded with litigation.
• Declaration for the future cases would be obiter.
• The quantum jump is undesirable and will lead to facile overruling.
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Though Justice Subba Rao discarded these objections, he went on analyzing the
same and prescribed the following principles of guidelines pertaining to the
usage of this Doctrine,

• The applicability of Doctrine of Prospective Overruling is limited to

disputes arising under the Constitution.
• This Doctrine can be invoked only by the Supreme Court as it has a
wide jurisdiction, pursuant to Article 141; it is binding to all other
courts in India.
• “To be moulded in accordance with the justice of the cause or
matter before it.” Thus, the court has the discretion to decide
whether or not the particular decision will have a retrospective
operation to suspend its earlier judgment.
The same was reaffirmed in the case of Sarwan Kumar v. Madan Lal
aggarwal[10] as “invocation of the doctrine of prospective overruling is left to
the discretion of the court to mould with the justice of the cause or the matter
before the court.”

Case Laws On Doctrine of Prospective Overruling

Reiteratively, Justice Subba Rao invoked this Doctrine of Prospective Overruling

for the first time in the case of Golaknath v. State of Punjab[5] and marked its
application in the Indian jurisprudence. He advocated that the only panacea for
all the judicial ills resultant of an outstanding question that analysis the duty of
courts is to make laws or merely finding the existing law to apply. He believed
that the Doctrine of Prospective overruling would practically settle the
mentioned two overlapping notions, though it is a dissent one. The applicability
of the Doctrine will make a law to get associated with the dynamic societal
transformations. He refuted all the objections against this Doctrine by referring
to the schemes of Article 32, 141, and 142, which have couched in such an elastic
manner that empowers the Supreme Court to formulate legal doctrines to meet
the end of justice. It is noteworthy that there is no constitutional provision
provided to counter the applicability of this Doctrine of Prospective Overruling.

The majority of five judges agreed on the reasons, and thereby, the Doctrine of
prospective overruling was established in India. On the other side, the minority
relied on the erstwhile Blackstonian theory and firmly opposed the adoption of
this Doctrine in India. However, by the application of this Doctrine, Justice Subba
Rao held the constitutional validity of the impugned Constitution (17th)
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Amendment Act by quoting the words of George F. Canfield to substantiate his
stand. Whereby, he harmonized the Doctrine of prospective overruling with that
of Stare decisis expressed in Great northern ry. co. v. sunburst oil & refining
co.[6]

Though the Golaknath judgment was overruled by the Kesavanandha Bharti v.

State of Kerala[7]case, the Doctrine that was laid in that case has not been
revoked as it was insurmountable. In fact, Supreme Court reaffirmed this
Doctrine of prospective overruling in a catena of cases it has dealt with.

In Waman Rao v. Union of India,[8]Supreme Court invoked this Doctrine while

adjudicating the impugned issue related to the constitutional validity of
Maharashtra Agricultural lands (ceiling of Holding) Act, 1961.

The traces of this Doctrine were found in the case of Indira Sawhney v Union of
India [9](Mandal case), where Justice Reddy decided that the ruling laid in this
particular case will come into effect post 5 years from the date of the judgment.
This decision implies that the principle laid is shunned from getting affected by
any ruling of subsequent cases and by the application of prospective overruling,
deliverable judgments in the meantime will not be affected by this particular
case’s decision.

Conclusion
The doctrine of prospective overruling simply means that the decision of a Court
will have a prospective operation and will not affect any transactions that
occurred before the judgement has been passed by the Court. The essential
conditions that have to be followed while applying this doctrine are that firstly,
it should be invoked only in cases that arise regarding the interpretation of the
Constitution. Secondly, it should be applied only by the Supreme Court and
lastly, the Court may modify the aspects of prospective application of its ruling
in accordance with the justice of the cause or matter before it.

This doctrine is an important part of the jurisprudence in India and it ensures

that public interest is not affected by invalidating past transactions under laws
that have been declared unconstitutional.
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