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5. Precedent

Precedent is a legal principle established in previous cases that guides courts in similar future cases, ensuring consistency and stability in the law. In India, Article 141 mandates that the Supreme Court's decisions are binding on all lower courts. The doctrine of Stare Decisis reinforces the importance of precedent by requiring courts to adhere to established rulings, thereby promoting legal certainty.

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Ashish Ranjan
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16 views

5. Precedent

Precedent is a legal principle established in previous cases that guides courts in similar future cases, ensuring consistency and stability in the law. In India, Article 141 mandates that the Supreme Court's decisions are binding on all lower courts. The doctrine of Stare Decisis reinforces the importance of precedent by requiring courts to adhere to established rulings, thereby promoting legal certainty.

Uploaded by

Ashish Ranjan
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Discuss the Importance of ‘Precedent’ as a source of law.

A precedent is a principle or a rule 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.

Definition of Precedent:
According to Salmond, “in a loose sense, it includes merely reported case law which may be
cited & followed by courts.”
According to Keeton, “a judicial precedent is judicial to which authority has in some
measure been attached.”
According to Gray, “precedent covers everything said or done, which furnishes a rule for
subsequent practice.”

PRECEDENT SYSTEM IN INDIA: Article 141 of the Supreme Court states that the law
declared by the Supreme Court of India shall be binding on all courts in India.

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. For eg 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

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. 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.

Nature of judicial precedents

1. They must be purely constitutive and not abrogative in nature. Hence, while a judicial decision can
make a law it cannot alter it.

2. When there is a settled rule of law, the judge must adhere to the same.

3. A judge cannot substitute their opinions for the established rule of law and make decisions based
on what they think should be happening, should have happened or could have happened.

4. The function of the precedent is limited to supplying the vacancies of the legal systems by filling
up with new law the gaps that exist.

THE DOCTRINE OF STARE DECISIS


Stare Decisis means “to stand by precedent and not to disturb the settled point of law”. It means
that judicial decisions have binding force, and enjoy status perse.
The doctrine of Stare Decisis stipulates that two conditions must be met:
1) There must be a judicial hierarchy;
2) There must be reliable reports of cases.
The Doctrine of Stare Decisis makes the judicial decision to be binding and also makes stability in the
law.

Importance

The primary function of the Judiciary is the settlement of disputes. Initially, while adjudicating, the
courts are guided by customs and their own sense of justice. Later on, legislations become the main
source of law and the Rule of Law is what judges base their decisions on.

1. Inductive method– A great amount of reliance is placed upon the decisions of the judges in this
method. The judges look into previously decided cases in the same or superior courts before giving a
final judgement, of a similar nature that have already been adjudicated upon before. They consider
general rules and principles from the previous case and apply them on the cases before them. They
then decide accordingly. This is known as the Inductive method.

2. Deductive method– In this method, a great amount of reliance is placed on legislatures and the
enacted statutes. It can be seen as a kind of positivist approach but most judges are now free to
interpret the law in any way they see fit to favour justice, equity and good conscience. In such a
system, the cases are decided on the basis of the enacted legislation and statute that are codified
and the judges decide cases on the basis of these statutes. Here the judges do not decide on the
basis of previously decided cases.

Therefore, It can be said that Precedent is one of the sources of law. In English law, the
judges use precedent and legislation to make law. As important as the law is, so is
precedent. By precedent, the court can save time in future cases by applying the principle.
The concept of precedent serves a crucial purpose in ensuring the legal system's certainty,
consistency, predictability, and stability.

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