Precedent

Meaning
• A precedent is a statement of law found in the decision of a superior Court, which decision has to be
followed by that court and by the courts inferior to it. Precedent is a previous decision upon which the
judges have to follow the past decisions carefully in the cases before them as a guide for all present or future
decisions.
• In other words, ‘Judicial Precedent’ means a judgment of a Court of law cited as an authority for deciding a
similar set of facts, a case which serves as authority for the legal principle embodied in its decision. A judicial
precedent is a decision of the Court used as a source for future decision making.
• Meaning : A precedent is a statement of law found in the decision of a Superior Court. Though law making is
the work of the legislature, Judges make law through the precedent.
• Inferior courts must follow such laws. Decisions based on a question of law are precedents. Decisions based
on question of facts are not precedents. Judges must follow the binding decisions of Superior or the same
court.
• Following previous binding decisions brings uniformity in decision making, not following would result in
confusion.
• It is well settled that Article 141 of the Constitution empowers the Supreme Court to declare the law and
not to enact the law, which essentially is the function of the legislature. To declare the law means to
interpret the law. This interpretation of law is binding on all the Courts in India. This is called as precedent.
Definition of Precedent

• In general English it 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”.
• According to salmond: In loose sense it includes merely reported case law which may be cited and followed
by courts. In strict sense, that case law which not only has great binding authority but must also be followed.
• Grey: - Judicial precedent covers everything said or done which furnished a rule for subsequent practice.
• Bentham: -'precedents are judge made laws’.
• Keeton: - Judicial precedent is a judicial decision to which authority has in some measure been attached.
• Austin: -precedent is “judiciary’s law”.
• In all precedents are authority of past decisions for future cases. It must be reported, cited and followed by
courts.
• Object : The main object of doctrine of precedent is that the law of the land should be clear, certain &
consistent so that the Courts shall follow it without any hesitation. In Union of India Vs. Raghubir Singh (AIR
1989 SC 1933):
• “The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial
decisions, and enables an organic development of the law, besides providing assurance to the individual as to
the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and
consistent enunciation of legal principle in the decisions of a Court.”
Origin of Precedent

• Precedent originates from the doctrine of stare decisis. Stare decisis means to abide by the decisions. The
doctrine of stare decisis brings certainty and conformity to the decisions of the court and to law.
• Stare decisis: The maxim explains the doctrine of stare decisis- ‘“to stand by things decided’. When court
settles an issue, a conflict or a controversy between parties it becomes the law on those issues and conflicts.
Such a decision is a precedent. A precedent is a statement of law found in decision of the superior court.
Such decisions are binding to that court and the inferior courts have to follow.
• The cases based on similar set of facts decided by a court may arise in any future case. Following previous
decisions in similar future cases, the court may save time and avoid conflicting decisions, bringing uniformity
to law. The court settles a question of law or of fact, it is best to stand by that decision while adjudicating
similar cases in the future.
• Before deciding a case, the Judges look into previously decided cases of similar nature by their own court or
by superior courts. They shall apply them on the facts or case before them and decide accordingly.
• In Indian legal system, the judges take guidance from previous decisions on the point, and rely upon them.
• The decisions of Apex Court and High courts are compiled and published in reports. These reports are
considered to be valuable from the legal literature perspective. Those decisions are very efficient in deciding
cases of subsequent cases of similar nature. They are called as Judicial Precedents. A decision is an authority
for what it decides.
• The ratio in the decision is its essence. The reason and principles on which a court decides a case forms a
precedent. A Judicial decision has a binding force for subsequent cases. However, the whole Judgment is not
binding in future cases.
• In the case of C ommissioner of Income Tax vs. M/s Sun Engineering Works Private Limited AIR 1993, SC 43,
the Hon'ble Apex Court held that, “while applying the decision to a later cases, the court must carefully try to
ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or
sentences from the Judgment divorced from the context of question under consideration by the court to
support their reasoning.”
• It is very clear that, only those statements in an earlier decision which may be said to constitute the ratio
decidendi of that case are binding. Statements which are not essential or necessary for deciding the later
cases, such non authoritative statements are called as obiter dicta.
Ratio Decidendi :

• Ratio decidendi means the reason or the principle upon which the case has been decided by the higher
Courts and only this much is binding on the subordinate courts while applying the earlier decision. The ratio
decidendi can be ascertained by an analysis of facts.
• In the case KrishnaKumar vs.Union of India and others , ( 1990) 4 SCC 207 it has been observed the hon'ble
supreme court that: “In other words, the enunciation of the reason or principle upon which a question before
a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle,
namely, the general reasons or the general grounds upon which the decision is based on the test or abstract
from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has
to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major
premise consisting of a preexisting rule of law, either statutory or judge made, and a minor premise
consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty
of the court to spell it out with difficulty in order to be bound by it.”
Obiter Dicta

• Obiter Dicta means all that is said by the court by the way or the statement of law which go beyond the
requirements of the particular case and which laid down rule i.e. irrelevant or unnecessary for the purpose
in hand are called obiter dicta.
• These dicta have the force of persuasive precedents only. The judges are not bound to follow them.
However, obiter dictum of Their Lordships of the hon'ble Supreme Court is entitled to highest respect and is
binding on all the Courts of the country.
• It is observed in case of “Mohandas Issardas and others Vs. A.N. Sattanathan & Others, A.I.R. 1995 (Bom.)
113” that: “the court in India should accept as an authoritative pronouncement on the particular aspect of
law and treat that pronouncement as binding. The Supreme court has now taken the place of privy council
and we would like to say unhesitatingly that we must show the same respect for the 'obiter dicta' of the
Supreme Court that we did for those of privy council. The Supreme Court is the highest judicial tribunal in
India today and it is as much necessary as in the interest of judicial uniformity and judicial discipline that all
the High Courts must accept as binding the 'obiter dicta' of the Supreme Court in the same spirit as the High
Courts accepted the 'obiter dicta’ of the privy council.”
Sub Silentio

• A decision is sub silentio if an important issue ignored or was not argued by counsel. That point or issue may
turn the decision of the court. Such decision is not an authority on the point which is not fully argued is sub
silentio.
When Precedents cease to apply :

• There are three main criteria to oversight the previous precedents as follows:
• Overruling
• Reversing
• Distinguishing
I] Overruling :This is where a court higher in the hierarchy departs from a decision made in a lower court. Then
the previous decision is no longer binding.
II] Reversing :This is where a higher court departs from the decision of the lower court on appeal.
III] Distinguishing :This is where the facts of the case are deemed sufficiently different so that the previous case
is no longer binding.
Whether judgments of Hon'ble High Court are binding as precedents

• Like Article 141 empowering the Supreme Court to declare the law and making its precedents binding on all
the Courts, there is no specific provision directly empowering the High Court to declare the law and making
its decisions binding on its subordinate Courts. But it is well settled that the Courts from a State subordinate
to a High Court from that State are bound by its decisions. Question is what is the basis for this settled law.
• The Honble Supreme Court in M/s. East India Commercial Co. Ltd. Calcutta and another V/s. Collector of
Customs, Calcutta (AIR 1962 S.C.1893) held in para 31 of the Judgment as under :“ 31…… Under Art. 215,
every High Court shall be a court of record and shall have all the powers of such a court including the power
to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the
enforcement of the fundamental rights and for any other purpose to any person or authority, including in
appropriate cases any Government within its territorial jurisdiction. Under Art. 227, it has jurisdiction over all
courts and tribunals throughout the territories in relation to which its exercises jurisdiction. It would be
anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law
declared by that Court and start proceedings in direct violation of it.
Per incuriam decisions

• Per incuriam decisions do not have binding effect. Per incuriam decisions mean where the court has acted in
ignorance of a previous decision of its own or of a court of coordinate jurisdiction or when the decision is
given in ignorance of the terms of a statute or a rule having statutory force.
CONFLICTING DECISIONS OF DIFFERENT STRENGTH

• If there is conflict between the decision of lesser bench, then law laid down by the larger bench will be
binding. In this regard the Five Judges Constitution Bench of Honourable Supreme Court in case of “Central
Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 ” has observed that,
• “The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or coequal strength”.
• Any interim order passed even by the Supreme Court is limited to that particular case and should not be
used as precedent for other cases specifically when the Supreme Court itself has earlier authoritatively
decided the question which is squarely involved in the later case. The Hon'ble Apex Court in “Megh Singh v.
State of Punjab [AIR 2003 SC 3184]” has held that, “circumstantial flexibility, one additional or different fact
may make a world of difference between conclusion in two cases or between two accused in the same case.
Each case depends on its own facts and a close similarity between one case and another is not enough
because a single significant detail may alter the entire aspect”.
Kinds of Judicial Precedent:

• 1. Declaratory and Original Precedents

• As John William Salmon explained, a declaratory precedent is one where there is only application of an already
existing rule in a legal matter. Whereas, an original precedent is one where a new law is created and applied in a
legal matter. Original precedents are responsible for the creation of new laws.
• 2. Persuasive Precedents
• A persuasive precedent is a type of precedent where the judge is not required to follow the precedent in a legal
matter but will take the precedent heavily into consideration. So a persuasive precedent is not a direct source of
law but is considered a historical source of law. In India, the decisions of one high court can act as persuasive
precedents in other high courts.
• 3. Absolutely Authoritative Precedents
• In an absolutely authoritative precedent, the judges have to compulsorily follow the judicial decision of the
precedent in a case of law. In other words, even if the judge finds the precedent to be a wrong judgment, he is
legally bound to give the same judicial decision. For e.g. – Every court in India is absolutely bound by decisions of
courts superior to itself because of hierarchy.
• 4. Conditionally Authoritative Precedents
• A conditionally authoritative precedent is one where generally the precedent is absolutely authoritative but in
certain special circumstances, like a supreme court decision, it can be disregarded. The court can disregard the
decision if it is a wrong decision, or goes against the law and reason.
Theories of precedent as a source of law
• 1) Declaratory Theory: -According to this theory, the main function of judges only declaration of law not
made the law. The main jurist of this theory are Black stone, Coke, Baddeley. This theory provides that,
Judges only discover law. They discover and declare.
• Black Stone:-The function of judges is declaration of the law, not make the law.
• Coke: Judicial decisions are not a source of law but the best proof of law is.
• Baddeley: There is no such thing as judge-made law.
• This theory was criticized on a number of grounds
• Bentham and Austin: legislative power is not with Courts and they can not even claim it.
• Salmond: both at law and in equity, however the declaratory theory must be totally rejected.
• 2) Judges Make Law: - According this theory judges, not only they declaration the law but also, they make
the law. The main jurist of this theory are Lord bacon, Gray, Diecy .
• Lord Bacon: the points which the judges decide in cases of first impression is a “distinct contribution to the
existing law”.
• Gray: Judges alone are the makers of Law.
• Diecy: -judges made law
• Where a statute clearly laid down the law, the judge has to enforce it. The judge is confined to the facts of
the case while enunciating legal principles. Within those limits alone it can be said that judges make law.
• Precedents work like lighthouse to guide all courts. Precedents bring certainty in law. They always help the
lower court judges, specially the junior judges to deal with applying the law correctly. Some times the judges
may support their views with help of the precedents. These are the guidelines which must be followed by
the lower courts to ensure the real justice, consistency, uniformity in the judicial decisions and also provide
predictability to the individual rights.