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“Judicial Precedents”
Prof. S.D. Bhosale
(..4 b..)
Sources of Law
JUDICIAL PRECEDENTS
QUESTION BANK
Q.1
Q.2
State the essential of valid Precedent.
What do you understand by custom? What are the essential requisite of a valid
Precedent?.
Q.3
“What Precedent is to society law is to State”, comment.
SHORT NOTES
1. Judicial Precedent.
SYNOPSIS
I. Introduction to Precedent-
II Meaning- 1) According to Salmond-, 2) According to Keeton-
III Importance of Precedent-
1) Keeps uniformity in legal system-
2) Provides useful guidance-
3) Saves labour and time of judges and advocate-
4) Shapes laws to fit ground realities-
5) Provides flexibility-
6) Clear legal point is made known in advance-
7) Easy to understand-
8) Precedent is perfect law-
9) Older source of law-
IV Disadvantages of precedent-
1) Practically difficult –
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2) Lacks binding force of State-
3) Incomplete-
4) Overlooks rule of natural justice-
5) Conflicting Judgment-
6) No standard to determine validity of precedent-
7) Erroneous decisions create practical problem –
8) Position of Doctrine of Precedent-
Precedent in England-
Rule of Precedent in India-
Doctrine of Precedent is set out in Indian Constitution.
Supreme Court of India-
High Courts-
Binding force of the decisions of Federal Court and of Privy Council:-
VI) Ratio decidendi and obiter dicta-
Ratio Decidendi-
Obiter Dicta-
Circumstances weakening or destroying binding force of precedent-
1) Overruling
2) Legislation-
3) Decision in ignorance of Statute-
4) Decision of High Court inconsistent with Supreme Court -
5) When Judges are equally divided-
6) Erroneous decisions-
8) Affirmation or reversal on a different grand-
VII) Theories of Precedent -
1) The Declaratory theory of Precedent-
2) Judges make law-
Conclusion
I. Introduction to Precedent-
Judicial precedent or precedent is an 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.
Precedent has a binding force on courts to decide like the case in a similar manner.
It brings uniformity and equality to the legal system; before the legislature, as a sovereign
body emerged in recent times, it was the judiciary which used to define laws and apply
them in the administration of justice. Therefore, it is being said that English law is mostly
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Judge made. Most of the common law countries owe the origin of their laws to English
Common Law, i.e. Judge Made Law. The Law of Judicial Precedent was also known as
early Roman Law. Precedent as a source of law developed after custom.
II Meaning-
Ordinarily, a ‘precedent’ means a ‘previous instance or case which may be taken as
an example or rule for subsequent case having similar facts'.
1) According to Salmond-
According to Salmond doctrine of precedent is used in two senses-
First, in its broad sense, ‘precedent’ is “a decision of any court cited as authority for
deciding similar facts on that principle”.
Thus, according to this sense, any past judgment of any court. Whether it is higher,
lower, Indian or foreign court can be cited in the present case having some analogy or
similar facts as a precedent. Secondly, in its narrow sense, precedent means that case law
(probably of higher courts) which not only has a great binding authority but must also be
followed.
2) According to Keeton-
“A judicial precedent is a judicial decision to which authority has, in some measure,
been attached”.
In short, precedent is guidance or authority of past decisions for future cases.
III. Importance of Precedent-
Precedent has a prominent place in legal practice; it is because of the following
reasons.
1) Keeps uniformity in the legal system-
Being binding on a subordinate judiciary, the doctrine of precedent keeps uniformity
in the legal system. It curtails the discretion of judges to decide cases at their whim. The
precedent sets a legal position as to a particular point of law, which all courts need to
follow.
2) Provides useful guidance-
The precedent, is based on vast experience, maturity and diligence (specifically of the
higher judiciary), guides the subordinate judiciary on a particular point of law.
3) Saves labour and time of judges and advocates-
The precedent being refined and settled legal position saves labour and time of judges
and Advocates in searching for correct legal possession on a particular point of law.
4) Shapes laws to fit ground realities-
Precedent shapes law enacted by legislatures to the actual realities of practice.
Legislatures may make laws in Houses, whereas judges apply them in practice. Therefore,
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precedent shapes law according to ground reality and problems which the legislature may
practice)
5) Provides flexibility-
To fit actual problems in implementing laws in practice, precedent moulds laws
(made by the legislature). Moreover, precedent can also be changed by the higher judiciary;
therefore, it provides flexibility in the judicial system, e.g. case of Manika Gandhi changed
the trend set by A.K. Gopalan’s Case.
6) Clear legal point is made known in advance-
Precedent settles legal position crystal clear on particular law point (involved in that
case). Therefore, in advance, it provides knowledge to Advocates and parties as to what is
correct legal possession in subsequent cases on similar points or facts. Thus, precedent
makes known the exact legal position in advance.
7) Easy to understand-
Being related to and involved in facts, precedent is easy to understand by reading cases.
8) Precedent is perfect law-
Compared to the law made by the legislature, judge-made precedent is crystallized
and perfect.
9) Older source of law-
The practice of judge-made law of precedent is older than legislation which is of
recent origin.
The advantages of precedent are the binding force of the doctrine of precedent.
IV Disadvantages of precedent-
1) Practically difficult –
High Courts and Supreme Court daily pronounce a number of judgments, and they
are reported by a number of reporters; therefore, it becomes very difficult to find out the
exact case law applicable to the case at hand.
2) Lacks binding force of State-
According to Bentham, precedent is not law because it lacks the binding force of
the State. However, according to Austin, ‘Judges are agents of sovereignty; therefore, the
law pronounced by them is good law’.
In fact, in India “Judiciary” gets recognition from the sovereign constitution. Therefore,
undoubtedly, Judiciary is a sovereign wing, and the rule of precedent has got recognition
in Art. 141, therefore, has a binding force.
3) Incomplete-
1 Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461.
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According to Sir Fredric Pollock, the law based on the case law is incomplete
because it is pronounced only on particular facts and points of law involved in that case.
4) Overlooks rule of natural justice-
Some jurists like Bentham object that the law of precedent overlooks the rule of
natural justice. i.e. law must be known before it is actually enforced. However, precedent
comes into existence after the problem comes before a court.
5) Conflicting Judgments-
In a number of cases, we find conflicting judgments of higher courts. In such
circumstances, it becomes very difficult to follow any particular judgment as a precedent.
Specifically, in criminal matters, one can find a number of conflicting judgments of higher
courts.
6) No standard to determine the validity of precedent-
There exists no standard to determine the validity of law made by case law.
7) Erroneous decisions create practical problems –
Erroneous decisions create practical problems for the subordinate judiciary because
howsoever bad such judgment may be, the lower judiciary has to follow it.
8) Position of Doctrine of Precedent-
Precedent in England-
The doctrine of precedent is well-settled in England. The common law of England
is an outcome of judicial precedent. By the doctrine of precedent, the inferior courts are
bound by the decisions of superior courts.
House of Lords is the highest court in England. As a precedent, the decisions of the
House of Lords are binding on all courts in England. Moreover, its decisions were binding
on itself. Therefore, even the House of Lords was bound by its own decisions.
held not to be binding by its own decisions.
Below the House of Lords, there are ‘The Court of Appeal’ and ‘The Court of
Criminal Appeal’. Both these courts are bounded by the decisions of the House of Lords
and by their own decisions. But their decisions are not binding on each other because both
these Appellate Courts are of co-ordinate jurisdiction.
Below courts of appeal, there are High courts; High courts are bound by the
decisions of the Hose of Lords, both courts of appeal and by their own decisions.
Rule of Precedent in India-
The rule of precedent was first time recognised in India by S. 212 of the Government
of India Act 1935. By virtue of this section law declared (judgment) by the Federal Court
2 1968 AIR 273
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Prof. S.D. Bhosale
and Privy Council was binding on all courts in British India. The position continued till
coming into force of the Indian Constitution in 1950. The hierarchy of courts and Doctrine
of Precedent is set out in the Indian Constitution.
The constitution sets out the hierarchy of the Indian Courts; at the apex level, there
is a Supreme Court which sits in Delhi; below it, there is a number of High Courts situated
in the respective States of India; below the High courts, there are District and Session
Courts, below it, there are Magistrates (for the trial of criminal matters) and Civil Courts
or Munsif’s Courts (to try civil cases).
Supreme Court of India-
Art. 141 of the Constitution provides that the law declared by the Supreme Court
shall be binding on all courts within the territory of India
Thus, the law declared (Judgments delivered) by the Supreme Court is binding on all
Supreme Court expressed its view for the first time that if the previous decision of the
Supreme Court appears erroneous, then it can reverse its own decision. The view was
further strengthened in a number of subsequent cases, i.e. In Bengal Immunity Company
no more bound by its own decisions. Chief Justice Gajendragadker observed that there is
no restriction in the constitution which restricts Supreme Court from reviewing its earlier
decisions.
cases and set a new trend in the ‘basic structure doctrine.
Thus, it is now well-settled that the Supreme Court is not bound by its own decisions.
High Courts-
High Courts are bound by the decisions of the Supreme Court. Similarly, the
decisions of the High Courts are binding on all the courts below it within its jurisdiction,
i.e. the decision of the High Court of Bombay is binding on all the courts below it in
Maharashtra. Similarly, decisions of the High Court of Bangalore are binding on all courts
in the state of Karnataka. The judgment of one High Court is not binding on the other High
Court because both these courts are of co-ordinate jurisdiction. Thus, the decision of one
High Court though not binding on the other High Court nevertheless has a persuasive value.
3 AIR 1954 SC 119
4 AIR 1955 SC 661
5 AIR 1956 SC 845
6 AIR 1973 SC 1461
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Prof. S.D. Bhosale
But if such a decision of another High Court is in conflict with the decision of the parent
High Court, then the decision has no value. But when judgments of the superior courts are
of co-equal Benches and therefore of matching authority, then their weight must be
considered rationally and logically.
High Courts are not bound by their own decisions. However, the decision of the
full-bench is binding on the Division- Bench and the DivisionBenches’ decision on that of
the Smallest Bench. A single judge’s bench is called as ‘Smallest Bench’. A Bench of two
judges is called the “Division Bench”, and the Bench of three and more judges constitutes
the ‘Full Bench’. Therefore, the decision to use a larger Bench is binding on a smaller
bench. The decision of a bench is binding on a smaller or co-ordinate Bench, however
wrong the judgment may be. One bench of the same High Court cannot take a view contrary
to the decision given earlier by another co-ordinate bench of the same High Court.
However, if such a single or division Bench does not agree with the earlier decision of a
co-ordinate Bench, then it must place the matter before the Chief Justice of that High Court
to refer the matter to a larger Bench. Then, the Chief Justice will refer the matter to a larger
Bench.
The binding force of the decisions of the Federal Courts and of the Privy Council:-
In British India, instead of today’s Supreme Court, there was Federal Court. The
decisions of the Federal Court are still binding on the High Courts in India, provided their
Similar is the position of the Privy Council’s decisions. Privy Council was the
highest court of appeal, which used to hear appeals from British-ruled countries. The
decisions of the Privy Council are also binding on High Courts in India, provided that they
Thus, in short, by the rule of precedent, the decision of the Supreme Court is
binding on all courts in India. Similarly, all District Courts, Magistrate’s Courts and
Munsif’s courts are bound by the decision of the High Court within its jurisdiction.
Moreover, magistrates and Munsif’s courts are bound by the decisions of the District
court’s decisions within their jurisdiction.
VI) Ratio decidendi and obiter dicta-
Ratio Decidendi-
The literal meaning of the term ‘ratio decidendi’ is ‘reason of decision’. ‘Ratio
decidendi’ is the rule of law upon which the decision is founded. Ratio decidendi is the
rule of law applied by and acted upon by the court.
7 Ss. 212 of the Government of Indian Act 1935 and Art. 225 of the Indian Constitution 1950.
8 Art. 395 and Art. 225 of the Indian Constitution.
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According to Rubert Cross, “ratio decidendi” is the rule of law expressly or
impliedly treated by the judge as a necessary step in reaching his conclusion. Such a rule
of law or ratio is implied by other courts in deciding cases before them based on similar
facts.
In Keshavananda Bharati Vs. Union Of India
Full Bench of the Supreme Court laid down the ratio that the “Basic structure of the
Constitution cannot be destroyed by amendments in the constitution”. Thus, an amendment
carried on in the Constitution by Parliament if it destroys any of the Basic structures is
unconstitutional. in Mohari bibi Vs Dharamdas Ghosh
Court laid down the ratio that “contact by a minor is void-ab-into”.
In Donohou Vs Stevenson
The producer is liable for his negligence and therefore is liable for damage to the
consumer.
In Maneka Gandhi Vs Union of India
Court laid down the ratio decidendi that-
1) The procedure of depriving a person’s liberty must be just.
2) That the term ‘law’ used in Art. 21 includes rules of natural justice also.
In an English Case, Bridges Vs Hawkes worth (1851)
Fact- A consumer had found some money on the floor of a shop. The shopkeeper applied
for the money.
Court laid ratio- that finder is to keep the money. Thus, this ratio decidendi laid down by
the superior courts for a long has a binding force.
All courts below must decide their cases based on similar facts according to the ratio
decidendi laid down by the court. The rule of ‘ratio decided is also known as the doctrine
of ‘stare decisis’.
In Pradipta Padha v. Laxmi Kanta Maity (AIR 2015 (NOC) 1176 (Cal).
Calcutta H.C held that- the Doctrine of stare decisis is based on the legal maxim ‘Stare
decisis et non-quota movere” which means ‘to stand by decision rather disturb what is
settled’.
Obiter Dicta-
The term ‘obiter dicta’ literally means ‘statements by the way’. In a number of cases,
Judges express their legal opinions on issues which they are not asked to decide; or which
are not involved in the disputed cases at hand. These statements of law, expressed by the
Judges, which are not necessary to decide the dispute in hand, are called ‘obiter dicta’.
These are the statements made by way of deciding the matter at hand.
9 (1942) AC 624
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The point in issue before the court was related to public ‘Security’. However, Judges laid
down rules relating to the secrecy of Governmental documents. These rules of secrecy are
obiter.
In England, obiter dicta have no binding effect on either co-ordinate or subordinate
courts; however, it has persuasive value. However, in the Indian obiter dicta of the Supreme
Gopalan’s case, Justice Fazal Ali’s judgment was dissenting and upholding all the points
raised by A.K. Gopalan; however, the majority judgment (five judges out of six) was in
favour of the State rejecting liberty. However, in Maneka Gandhi’s case, a number of
points from justice Fazal Ali’s judgment was again argued and upheld by the majority,
which became a landmark and broadened the scope of Art. 21.
Circumstances weakening or destroying the binding force of precedent-
Following are the circumstances which destroy the binding force of precedent.
1) Overruling-
If the decision is overruled, it destroys earlier precedent, e.g. Ratio laid down in
A.K. Gopalan’s case is destroyed by Maneka Gandhi’s case.
2) Legislation-
If legislation is passed against the settled precedent, the precedent loses its binding
get maintenance as other women u/s. 125 of Cr. P. C. till her death or re-marriage.
However, to nullify the effect of this precedent, Parliament passed the Muslim Women
(Protection of Rights on Divorce) Act. 1986. By the Act, the right of Muslim women to get
maintenance was restricted to three months, i.e. iddat period.
3) Decision in ignorance of Statute-
If any judgment is given in ignorance of statute (i.e. “per in curim”), it is not binding.
4) Decision of High Court inconsistent with Supreme Court -
If the decision of the lower court if inconsistent with the higher court loses its
bindingness. Similarly, conflicting judgments lose their binding force.
5) When Judges are equally divided-
When judges of the appellant court are equally divided, then the judgment of the lower
10 Mohandas Vs Saltanathun (1954) 56 Bom L.R. 1156
11 Ashok Layland Vs The State of Madras AIR 1957 Mal. 263
12 A.K. Gopalan’s Vs State of Madras AIR 1950 SC 27
13 AIR 1985 SC 945
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court from which the appeal is made prevails, and the rule of precedent of that judgment
loses its value.
6) Erroneous decisions-
The decisions founded on misconceived principles or in conflict with the
fundamental principles of law lose their binding force.
8) Affirmation or reversal on a different grand-
When a higher court either affirms or reverses the judgment of the lower court on a
ground different from those on which the judgment rests, such decisions lose their value.
VII) Theories of Precedent -
There are the following theories of precedent-
1) The Declaratory theory of Precedent-
Coke, Hale, Blackstone, Carter, Harmod etc., are believers in declaratory theory. To
this theory, Judges do not make law but merely declare it. According to this theory, Judges
merely interpret already existing laws and do not lay down new principles of law.
According to this theory, precedent reshapes statutory law but does not add to it. It
merely declares law.
If a subsequent decision changes earlier, it does not make law but only discovers the
correct principle of law.
According to this theory, precedent, in fact, does not constitute a source of law. This
theory further states that the law already exists; judges merely interpret, shape and declare
the law.
2) Judges make law-
Bacon, Bentham, Austin, Dicey, Salmond etc., believe in this theory.
According
to this theory, judges make law through the rule of precedent. Believers of this theory admit
that generally, judges apply existing law, but many times judges modify, extend and create
an entirely new principle (i.e. law). This theory states that through new precedents, judges
make new laws.
In a number of cases, it is found that judges of higher judiciary make new laws.
Issue – whether slavery is to be allowed.
Lord Mansfield held – Slavery could not be allowed by law. In fact, there was no existing
law that prohibited slavery.
In India, also we find a number of cases and writs wherein the higher judiciary has
laid down new principles of law.
Conclusion
14 (1772) 20 State Tr. I
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“Judicial Precedents”
Prof. S.D. Bhosale
In conclusion, it may be said that the advantages of precedent outweigh the
disadvantages, and it is accepted as one of the important sources of law in almost all legal
systems, including the USA, UK, India etc.
the legislature and held that Parliament can amend the constitution but cannot destroy the
basic structure of the constitution.
Now, most of the part of the constitution is clothed with the ‘basic structure’
principle.
The judgment made a great impact on civilized societies around the globe. This
doctrine is read for the protection of the constitution.
In Maneka Gandhi’s case, Supreme Court considered a number of factors and
widened the scope of Art. 21. Similarly, in Vishaka’s Case Court laid down rules for the
protection of working women from harassment of co-workers.
Thus, it shows that Judges do lay down laws and apply them in practice.
*****
15 (AIR 1973 SC. 1461)