NOTE ON STARE DECISIS

Case law, so called, or the decisions of the courts serve as a very

important source of law, especially in countries following the common law
system of adjudication. In countries that follow the common law system,
the judgments of the higher courts are treated as binding on all
subordinate courts. This concept of treating judgments of superior courts
as binding is called the doctrine of precedent or stare decisis.1 Before we
go into the details of this doctrine, it is important understand the rationale
behind the doctrine.

Certainty and predictability are very important attributes of law, and

indeed essential for its success.2 If law treats a person in particular way, it
is only just that other persons in similar position are treated likewise. Only
then will there be greater compliance with law. This first principle of law,
so to say, should be applicable to the judiciary in order to ensure
consistency in interpretation of various laws. The doctrine of precedent
was, therefore, evolved in order to maintain consistency and uniformity in
law. These apart, the doctrine of precedent has the advantages of
equality, efficiency and avoiding arbitrariness.

A precedent works by way of analogy: we first look at case law dealing

with the question before and apply the rule laid down in the precedent.
But the process is not a mechanical one, as it may seem. Analogy by
precedent involves analysis of the binding principle of law laid down in the
case law and justification for its application to the circumstances before
us. This process is explained in detail below.

Application of the Doctrine in India

The doctrine of precedent is expressly incorporated in India by Article 141

of the Constitution of India, 1950. Article 141 provides that the decisions
of the Supreme Court are binding on all courts within the territory of India.
Although there is no express provision, but by convention the decisions of
a High Court are binding on all lower courts within the territorial
jurisdiction of that High Court. Similarly, a decision of a higher Bench3, is
binding on the lower Bench.

1
It should rightly be called stare rationibus decidendis, meaning “stand by the reasons
for decision of the precedent”, as it is the reasoning, as we will see later, of the court
which has the value of precedent and not the mere order settling disputes between
parties.
2
See Lon Fuller, The Morality of Law, Yale University Press (1969).
3
A Bench of the Supreme Court (or a High Court) is said to be higher Bench if the
number of judges who adjudicated the matter are greater in number.
Ratio or Rationes Decidendi

The maximum attention of jurists while dealing with the doctrine of

precedent is devoted to the enigmatic concept of ratio decidendi.4 This is
because ratio decidendi is the life of this doctrine. Ratio decidendi is, to
borrow the words of Prof. Julius Stone, “the link” between generations.

Ratio decidendi is generally understood as the reasons spelling out the

binding principle law in a decision. Although the meaning might be quite
simple, the most demanding task is ascertaining the correct ratio
decidendi in a case, and maximum space in the discourse on the doctrine
of precedent is devoted to this issue.5

Determining the Ratio in a Case

Different approaches have been taken in order to determine the ratio in a

case. Professor Goodhart argued that the binding ratio should be
determined on the basis of “material” facts since the courts considered
the law in the context of those facts which are material. 6 Another common
method used is determining the ratio in reference to the issues dealt with
by the previous court. The reasons and the principle declared while
deciding the issues are considered the binding ratio. The justification for
this approach is that debate or arguments and the application of the
judicial mind are over resolving the issues before the court and not merely
the facts.

Although there is no universal method of determining the ratio of a case,

the indeterminate nature of the concept holds wide scope for judicial
choice. The exercise of judicial choice, however paradoxically, is restricted
by justice and fairness in the exercise of judicial discretion.

Obiter Dictum

While deciding on the facts of a case observations not relevant to deciding

the case may be made by a judge. These observations, although part of
the judgment, may not have a bearing on the ultimate outcome of the
4
Some important works on the doctrine of precedent are cited here: Cross and Harris,
Precedent in English Law, Oxford University Press (1991); Arthur L. Goodhart,
Determining the Ratio of a Case, 40 Yale Law Journal 161 (1930); JL Montrose, Ratio
Decidendi and the House of Lords, 20 Modern Law Review 124 (1957); AWB Simpson,
The Ratio of a Case, 20 Modern Law Review 413 (1957); and under similar titles JL
Montrose, 20 Modern Law Review 587 (1957), AWB Simpson, 21 Modern Law Review 155
(1958), AL Goodhart, 22 Modern Law Review 117 (1959) and AWB Simpson, 22 Modern
Law Review 453 (1959); and Julius Stone, The Ratio of Ratio Decidendi, 22 Modern Law
Review 597 (1959).
5
See generally the works cited in above note 4.
6
Arthur L. Goodhart, Determining the Ratio of a Case, 40 Yale Law Journal 161 (1930)
case. Such observations are called obiter dictum or dicta. Obiter dicta are
not considered binding. Nevertheless, resort may be sort to them if they
are relevant to the principle of law being ascertained.

Consistency versus Change: Core Competing Elements in the

Doctrine

If the doctrine of precedent is about following the old way, how then do
we answer the demands of change and new developments? Is there room
for change in the doctrine? It is not uncommon that judges commit
mistakes and consequently a wrong rule of law is laid down. Should such
wrong be perpetuated?

Some more important aspects

There are some more aspects of the doctrine of precedent which are
mentioned in brief here.

Per incurium

When a decision is given without considering or in ignorance of the

existing principles/ provisions of law, either statutory or case law, it is said
to be per incurium. A decision per incurium does not have any binding
force.

Sub-silentio

A decision given without considering a particular aspect of law or issue, or

without a debate or argument on questions relevant to the matter, the
decision will be termed as sub-silentio. Like judgments per incurium a
decision passed sub-silentio is not binding.

Distinguishing a case

Cases with identical facts are rarity. Cases with similar facts are not
frequent. A principle of law is held considering the broad circumstance
before the court and when such principles are sought to be applied as
precedent it should be ascertained whether the circumstance are similar.
When the facts are materially different from the previous decision, the
precedent can be distinguished, that is to say, a different rule may be
applied in order to suit the circumstances. Distinguishing cases also
serves a tool to evolve law with the change in society. It allows the courts
space to decide matter in a manner to suit the circumstance, without
having to overturn the precedent.
Overruling a case

When a higher court is of the opinion that the principle of law enunciated
in a decision is not correct it may overrule that judgment and lay down
the correct principle of law. This is mode of correcting judicial errors. A
judgment can be overruled only by a higher court. Lowers courts do not
have such power. This is very clear from the very nature of the doctrine of
precedent.

Note: The judiciary becomes active only when disputes are brought before
it. Therefore, if some incorrect principle of law is laid down by the courts
the wrong will continue till it is remedied by later pronouncement of a
higher court or by a law made by the legislature. Therefore, judicial
correction of errors is not immediate but slow to come.

Conclusion

The doctrine of precedent is not mono-dimensional concept, but a

complex phenomenon. Although this cannot be fully described, a deeper
and wider understanding of the doctrine is possible by analysing and
understanding each facet of it.
Bibliography and material for further reference

Cross and Harris, Precedent in English Law, Oxford University Press (1991)
Arthur L. Goodhart, Determining the Ratio of a Case, 40 Yale Law Journal
161 (1930)
JL Montrose, Ratio Decidendi and the House of Lords, 20 Modern Law
Review 124 (1957)
AWB Simpson, The Ratio of a Case, 20 Modern Law Review 413 (1957)
JL Montrose, The Ratio of a Case, 20 Modern Law Review 587 (1957)
AWB Simpson, The Ratio of a Case, 21 Modern Law Review 155 (1958)
AL Goodhart, The Ratio of a Case, 22 Modern Law Review 117 (1959)
AWB Simpson, The Ratio of a Case, 22 Modern Law Review 453 (1959)
Julius Stone, The Ratio of Ratio Decidendi, 22 Modern Law Review 597
(1959)
Earl Maltz, The Nature of Precedent, 66 North Carolina Law Review 367
(1988)
PJ Evans, The Status of Rules of Precedent, 41 Cambridge Law Journal 162
(1982)
Laurence Goldstein, Some Problems About Precedent, 43 Cambridge Law
Journal 88 (1984)