Judicial Precedent: An Analysis

Submitted To:

Mr. Manoj Kumar

Faculty Member in Legal Methods

Submitted By:

Prashant Tiwari
B.A. LL.B. (Hons.) Student

Semester VI; Section B; Roll No. 105

Hidayatullah National Law University

Uparwara Post, Abhanpur, Naya Raipur-493661(C.G.)

Date of Submission- 08-04-2019

 I

DECLARATION

I, Prashant Tiwari, hereby declare that, the project work entitled, ‘Judicial Precedent : An
Analysis” submitted to H.N.L.U., Raipur is record of an original work done by me under the
guidance of Mr. Manoj Kumar, Faculty Member, H.N.L.U., Raipur.
This work represents my own ideas, and where others’ ideas or words have been included, I have
adequately cited and referenced the original sources. I also declare that I have adhered to all
principles of academic honesty and integrity and have not misrepresented or fabricated or falsified
any idea/data/fact/source in my submission.

-Prashant Tiwari

B.A. LL.B. (Hons.)

Semester VI, Section B

Roll No.-105
 II

Mr. Manoj Kumar

Faculty of Law
HNLU, Naya Raipur
Chhattisgarh

CERTIFICATE

This is to certify that the Project tilted, “Judicial Precedent: An Analysis”

Submitted by Mr. Prashant Tiwari as a part of internal assessment in

B.A. LL. B. (Hons.) Course is to the best of my knowledge his/her own

research work.

The research has been conducted under my supervision and guidance

and may be accepted for consideration.

Place: New Raipur Mr. Manoj Kumar

Faculty of Law
Date: 08.04.2019 HNLU, Naya Raipur
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ACKNOWLEDGEMENT

I, Prashant Tiwari would like to humbly present this project to Mr. Ankit Awasthi. I would first
of all like to express my most sincere gratitude for his encouragement and guidance regarding
several aspects of this project. I am thankful for being given the opportunity of doing analysis on
one of the most interesting topic about “An Judicial Precedent: An analysis”.

I am thankful to the library staff as well as the IT lab staff for all the conveniences they
have provided me with, which have played a major role in the completion of this project. I would
like to thank God for keeping me in good health and senses to complete this project.

Last but definitely not the least, I am thankful to my seniors for all their support and
valuable advice whenever needed. I present this project with a humble heart.

-Prashant Tiwari
B.A. LL.B. (Hons.)
Semester VI, Section B.
Roll No. 105
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TABLE OF CONTENTS

1. Declaration……………………………….……………………………………………..II.

2. Certificate by Faculty………………………………………………………………….III.

3. Acknowledgement………………………………………………………………….…..IV.

4. Abbreviation...…………………………………………………………………………..1.

5. List of Cases

S.R. Bommai v. Union of India……………………………………………………..13.

Rajeshwar Prasad v. State of West Bengal………………………………….……..18.
Keshwanand Bharti v. State of Kerlala…………………………………………….19.

6. Chapterisation...…………………………………………………………......................2.

7. Scope of Study…………………………………………………………………………..2.

8. Research Methodology…………………………………………………………………2.

9. Mode of Citation…………………………………………………………......................3.

10. Objective………………………………………………………………………………..3.

11. Abstract………………………………………………………………………………….3.

12. Introduction…...……………………………………………………….………………..4.

13. Chapter-1: Sources of law………………………………………….….……..………..4.

14. Chapter-2: Precedent as a source of law……………………………………….……..9.

15. Chapter-3: Importance of precedents…………………………………….………...14.

16. Chapter 4- Strengths and weaknesses of authority of precedents…………...…….16.

17. Chapter 5- Declaratory theory of Precedents………………………….…....……….18.
 V

18. Chapter 6- Merits and demerits of Precedents……………………………………..19.

19. Chapter 7- Legal Systems………………………………………………..…….……..21.

20. Conclusion……………………………………………………………………………..24.

21. Bibliography………………………………………………………………..………….24.

22. References……………………………………………………………………………...25.
 1

Abbreviations
Art…………………………………………………………………………Article

S.C. ……….……………………………………………………...Supreme Court

UOI ……………………………………………………………....Union of India

v. ………………………………………………………………………… versus

www…………………………………………………………….World Wide Web

Govt………………………………………………………………… Government

SCC………………………………………………………….Supreme Court Case

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Chapterisation

Chapter 1- This Chapter gives the brief summary of sources of law.

Chapter 2- This Chapter deals with Precedent as a source of law.

Chapter 3- This Chapter briefs us about the importance of Precedents.

Chapter 4- This Chapter deals with strengths and weaknesses of authority of precedents.

Chapter 5- This chapter contains the Declaratory theory of Precedents.

Chapter 6- This chapter discusses he merits and demerits of Precedents.

Chapter 7- Legal Systems

Scope of Study

The scope of study includes the purview within which the project work lies. This topic has been
clearly enunciated with the help of articles from magazines, newspapers and other such e-article
databases that have been explored. The subject explores the intricacies of the Indian legal
framework.

Research Methodology

This project work is analytical in approach. It is largely based on the analysis of articles and
references based on the Indian Legal System. Books & other references as guided by faculty of
Legal Methods are primarily helpful for the completion of this project.
 3

Mode of Citation

In this project I have used many web sources, website etc. And I have followed the 19th

bluebook citation for footnotes.

Objectives

The primary objectives of study are:

1. To examine and understand the rule of law as a foundation of good governance

2. Introduce the Indian constitutional framework and the Indian legal and judicial system
3. Discuss methods and tools for application of legal enactments in delivery of justice and
how to access them
4. Discuss the role of judiciary as the custodian of rights.

Abstract

Judicial method plays an important role in the development of law, irrespective of the fact whether
a community lives in rural simplicity or modern complexity, or whether it follows case laws to
decide cases or codified laws. In this paper the researcher is going to discuss the judicial method
of legal precedents and the fundamental issues raised by following this method. To understand
what judicial precedence and ratio decidendi are, we must study this area of the legal system, i.e.
following case laws and legal precedents
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INTRODUCTION

Each created lawful framework has a legal organ. The fundamental capacity of the legal organ is
to settle the rights and commitments of the subjects.1 As society progresses, legislation becomes
the main source of law and the judges decide cases according to it. Indeed, even at this stage the
judges play out some imaginative capacity.2 In the cases of first impression, in the matters of
interpretation, or in filling up any lacuna in the law made by legislation the judges, to some extent,
depend on their sense of right and wrong and in doing so, they adapt the law to the changed
conditions.

Chapter 1

Sources of Law

The term ‘sources of law’ is used in different senses. The general meaning of the word ‘source’ is
‘origin’. There is difference of opinion among the jurists regarding the sources of law.
Austin says that the term source of law has three different meanings.

1. The term refers to immediate or direct author of the law which means the sovereign in the
country.

2. The term refers to the historical document from which the body of law can be known.

3. The term refers to the causes which have brought into existence the rules which later on acquire
the force of law and here he says for example, the customs, judicial decision, equity etc.

Historical Jurists

1
http://www.lawctopus.com/academike/precedents-as-a-source-of-law/ Last visited on: 17/08/2016 at 20:25
2
http://www.academia.edu/5050236/Precedent_as_a_source_of_law/ Last visited on: 17/08/2016 at 20:44
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- Savigny, Henrye Maine, Puchta- Law is not made but it is formed. The foundation of law lies in
the common consciousness of the people which manifests itself in the practices usages and
customs of the people. Therefore, customs and usages are the sources of law.

Sociological Jurists
- They protest against the orthodox conception of law according to which law emanates from a
single authority in the state. Law is taken from many sources and not from one.
Ehlrich- He says that at the present as well as any other time the centre of gravity of legal
development lies not in legislation, not in science nor in judicial decisions but in society itself.

Duguit
- Law is not derived from any single source and the basis of law is public service. There need not
be any specific authority in a society which has the power of making laws.

According to Salmond classification of sources of law can be done as following :

1. Formal Sources

- It is as that from which rule of law derives its force and validity. The formal source of law was
the will of the state as manifested in statutes or decisions of the court and the authority of law
proceeds from that.

2. Material Sources

- They are those from which is derived the matter though not the validity of law and the matter of
law may be drawn from all kind of material sources.

a. Historical Sources
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In this rules are subsequently turned into legal principles, were first to be found in an
Unauthoritative form. They are not allowed by the law courts as of right. They operate
mediatory and indirectly.

b. Legal Sources
- They are sources which are the instruments or organs of the state by which legal rules
are created for e.g. legislation and custom. They are authoritative and are followed by the
courts as of right. They are the gates through which new principles find admittance into
the realm of law.

i. Legislations

ii Precedent

iii.Customary Law

iv.Conventional Law- Treatise (CK Allen)

Sources of Law in India

As the inevitability of law in life of state is well-known, the question automatically crops up as to
how law originate? What are its sources? By sources of law we mean its beginning as law and the
point from which it springs or emanates. As regards law there are six important sources.

(A) Customs

Customs are oldest source of law. It is the outcome of habits. When a particular habit is followed
for a long time by the people regularly and habitually, the custom comes into being. When written
laws were more conspicuous by their absence in the primitive society, it was customary laws that
 7

regulated human conduct in the primitive society. It is said that kings have no power to create
custom and perhaps less to destroy it. Customs largely influence the legal system of a state and the
state gets rid of the bad customs like Sati, Polygamy, and Dowry etc. only by means of legal
impositions. The United Kingdom provides the best example of customary laws which are found
in the common law of England. In the United Kingdom the law and custom are so intimately
connected with each other that the violation of convention custom will lead to the violation of law.

(B) Religion

The religion is another important source of law. It played an important role in the primitive period
when men were very much religious minded and in the absence of written laws the primitive
people obeyed religion thinking it of divine origin. In the medieval period, most of the customs
that were followed were only religious customs. Even today the Hindu Laws are founded on the
code of Manu and the Mohammedan Laws are based on the Holy Koran. The religious codes
become a part of the law of the land in the state incorporates the religious codes in its legal system.

(C) Judicial Decisions

Since the dawn of the human civilization the dispute between two parties is referred to a
third party who acts as the arbiter. His decision is generally obeyed by both the parties. The arbiter
may be a tribal chief or a priest. But with the passage of time, the judicial organ of the state is
given power to decide cases between the parties. While deciding a case and pronouncing
a judgment, the judges generally apply their own common sense and justice. This is known as
Judge-made laws or case laws. Justice Holmes Commented that "judges do and must make laws".
The principle by which a judicial decision becomes a precedent is known as "Stare Decisis". 3

(D) Scientific commentaries

The law needs interpretation and the scientific commentaries and interpretations by
eminent jurists have contributed a lot for the evolution of a legal system. the views of

3
http://www.slideshare.net/shobhitshukla904/admin-law-presentation Last visited on 17/ 08/2016 at 21:02
 8

Blackstone in the U.K., Kent in U.S.A. have made tremendous impact on the legal system
of their respective countries. The opinions of these expert legal luminaries are always are
always kept in high esteem by the judges and the courts.

(E) Equity
The term ’equity’ literally means ‘just’, ‘fairness’ and according to ‘good conscience’.
When the existing law is inadequate or silent with regard to a particular case, the judges
generally apply their common sense, justice and fairness in dealing with such cases. Thus,
without ‘equity’ the term law will be devoid of its essential quality.

(F) Legislation
This is the most important and modern source of law. The legislature is that organ of the
state whose primary function is to make laws. Thus, law can defined as the opinion of the
majority legislators. They are recorded is the statute book. When the legislature is not in
session, the executive is empowered to issue ordinances, decrees etc. which are as good as
the laws made by the legislatures.
Besides the above six sources of law we can add two more sources of law in the present
days. The executive in a parliamentary democracy has the support of the majority
legislators in the legislature enabling it to make laws according to its choice. The executive
in a presidential system can influence legislation in the floor of the legislature through its
party men. With the advent of time, the legislature is required to make laws in a large
number of subjects. Due to paucity of time, the legislature makes laws in the skeleton form
and the flesh and blood is added to it by the executive. 4This is termed as 'delegated
legislation which has considerably enhanced the role of the executive in the field of
legislation. Public opinion in this age of democracy plays a vital role in the process of
lawmaking.
.
Chapter 2
Precedent as a Source of Law

4
http://www.yourarticlelibrary.com/essay/law-essay/law-meaning-features-sources-and-types-of-law/40363/ Last
visited on 17/08/2016 at 21:17
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In common law legal systems, a precedent or authority is a principle or rule established in

a previous legal case that is either binding on or persuasive for a court or other tribunal
when deciding subsequent cases with similar issues or facts. The general principle in
common law legal systems is that similar cases should be decided so as to give similar and
predictable outcomes, and the principle of precedent is the mechanism by which that goal
is attained. Black’s Law Dictionary defines “precedent” as a “rule of law established for
the first time by a court for a particular type of case and thereafter referred to in in deciding
similar cases.”

Nature of Judicial Precedent

A judicial precedent can make a new law but can never abolish one. This is because the
judges are not at the liberty to substitute their own views in place of a settled principle of
law.

The process of judicial decision making may either be deductive or inductive. Deductive
method is associated with codified system of law. It assumes that the legal rule applicable
to any particular case is fixed and certain and the judge is required to apply this rule as
justice according to the law without any reference to his personal view.

Inductive method on the other hand starts with the same primary object of finding the
general principle applicable to the particular case, but does not conceive the rule as being
applicable directly by simple method of deduction. It moves from particular to general. The
method involves reasoning inductively and in the process, the Judge is bound by the
decision of the court.

Types of precedents

In a broad sense, precedents can be classified either as authoritative or persuasive.

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An authoritative precedent is one which has a binding force and the Judge must follow it whether
he approves it or not. Authoritative precedents are the decisions of superior court of justice which
are binding on subordinate courts.

Persuasive precedent, on the other hand, is one which the Judges are under no obligation to follow
but which they make into consideration. Thus, authoritative precedents are the legal sources of law
while persuasive precedents are merely historical sources.5

Types of precedents (in detail)

Binding Precedent

Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by
things decided. It ensures certainty and consistency in the application of law. Existing binding
precedent from past cases are applied in principle to new situations by analogy.

There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs
to be accepted, and an efficient system of law reporting. 'A balance must be struck between the
need on one side for the legal certainty resulting from the binding effect of previous decisions, and
on the other side the avoidance of undue restriction on the proper development of the law.6

5
V.D. Mahajan, Jurisprudence and legal theory, 5th edition, Eastern Book Company, P:205
6
Lord Gardiner L.C., 1966 Practice Statement, Judicial Precedent
 11

Super stare decisis

Super-stare decisis is a term used for important precedent that is resistant or immune from being
overturned, without regard to whether correctly decided in the first place. It may be viewed as one
extreme in a range of precedential power.7

The doctrine of state decisis literally means “let the decision stand in its rightful place.” When a
decision contains a new principle, it is binding on subordinate courts and has persuasive authority
for equivalent courts.

The operation of the doctrine of stare decisis presupposes the existence of a hierarchy of courts.
For example, in India the lower courts or the courts of the first instance are the subordinate courts,
above them are High Courts and the Supreme Court is at the apex. Thus Supreme Court is the
highest judicial court in India.

The general rule on which the rule of stare decisis is based on are as follows:

1. Each court is absolutely bound by the decisions of the court above it.
2. To a certain extent, higher courts are bound by their own decisions. In India, the Supreme
Court is, however, not bound by its own earlier decision.
3. The decision of one High Court is not binding on any other High Court and it has only
persuasive value.
4. A single bench judge is bounded by the decision of a division bench of the same High
Court8 but a division bench is not bound to follow a decision of a Single Bench (judge) of
the same High Court.
5. In Krishna Swamy v. Union of India, Mr. Justice Ramaswamy of the Supreme Court spelt
out the basic philosophy and limits of the doctrine stare decisis and observed:
“The decision of this Court is the last word on the interpretation of the Constitution and the
law of the land under Art. 141. The Judge is the living oracle working in dry light of realism
pouring life and force into the dry bones of law to articulate the felt necessities of the time-
--. the stability, continuity and certainity. Adherence to precedents, ie., stare decisis is

7
Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007)
8
Taraponda v. Mritunjoya, AIR 1958 Cal. 314
 12

usually a wise policy for rule of law unless there are compelling and substantial reasons
for its reconsideration in larger public interest.”9

Persuasive precedent

Persuasive precedent (also persuasive authority) is precedent or other legal writing that is not
binding precedent but that is useful or relevant and that may guide the judge in making the decision
in a current case. Persuasive precedent includes cases decided by lower courts, by peer or higher
courts from other geographic jurisdictions, cases made in other parallel systems.

Few examples being,

1. Military Courts
2. Administrative Courts
3. Indigenous/Tribal Courts

Verticality

A common law court system has trial courts, intermediate appellate courts and a supreme court.
The inferior courts conduct almost all the trial proceedings and are bound to obey precedent
established by the appellate court for their jurisdiction, and all supreme court precedent. The
application of the doctrine of stare decisis from a superior court to an inferior court is sometimes
called vertical stare decisis.

Horizontality

It is based on the idea that a judge should or at least respect decisions of earlier judges of
similar or coordinate level is called horizontal stare decisis. Courts may consider rulings
made in other courts that are of equivalent authority in the legal system. For example,
an appellate court for one district could consider a ruling issued by an appeals court in
another district

9
N. V. Paranjape, Studies in jurisprudence and legal theory, 6 th edition, Central Law Agency, P:261
 13

Lower courts

A lower court's opinion may be considered as persuasive authority if the judge believes they have
applied the correct legal principle and reasoning.

Obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not
binding, will often be persuasive to lower courts. The phrase obiter dicta is usually translated as
"other things said", but due to the high number of judges and individual concurring opinions, it is
often hard to distinguish from the ratio decidendi (reason for the decision). For these reasons, the
obiter dicta may often be taken into consideration by a court. A litigant may also consider obiter
dicta if a court has previously signaled that a particular legal argument is weak and may even
warrant sanctions if repeated.10

In S.R. Bommai v. Union of India, 11 the nine Judges bench of Supreme Court unanimously held
that secularism is one of the basic structures of constitution of India. Justice Sawant and Kuldeep
Singh observed that social pluralism is one of the basic structures while Justice Ramaswamy
observed that socialism, social justice and fraternity are included in the basic structure of the
constitution. Justice Ahmadi opined that the rights contained in Article 15, 16, and 25 of the
constitution formed a part of its basic structure. These observations of the learned Judges are obiter
dicta as they were not directly in issue in the instant case. The ratio of the case is that secularism
is a part of basic structure of the constitution.

Dissenting opinions

A case decided by a multi-judge panel could result in a split decision. While only the majority
opinion is considered precedential, an outvoted judge can still publish a dissenting opinion.
Common patterns for dissenting opinions include:

10
Coale & Couture, Loud Rules, 34 Pepperdine L. Rev. 3 (2007).
11
(1994) 3 SCC 1 (pages 78, 118, 205).
 14

• an explanation of how the outcome of the case might be different on slightly different facts,
in an attempt to limit the holding of the majority.
• planting seeds for a future overruling of the majority opinion.

Treatises, restatements, law review articles

Courts may consider the writings of eminent legal scholars in treatises, restatements of the law,
and law reviews. The extent to which judges find these types of writings persuasive will vary
widely with elements such as the reputation of the author and the relevance of the argument.

Persuasive effect of decisions from other jurisdictions

The courts of England and Wales are free to consider decisions of other jurisdictions, and give
them whatever persuasive weight the English court sees fit, even though these other decisions are
not binding precedent. Jurisdictions that are closer to modern English common law are more likely
to be given persuasive weight. For example Canada, Australia, or New Zealand.

Chapter 3

Importance of precedents

The weight attached to precedent in every department of life is closely connected with the force of
habit, and has its root deep in human nature. That judicial precedents have exercised great influence in
all systems of law is more than probable; the feeling that a rule is morally right has often arisen from
the fact that it has long been followed as a rule; but the degree in which judicial decisions have been
openly recognized as authoritative, simply because they are judicial decisions, has varied greatly in
 15

different systems. Judges are everywhere largely influenced by what has been done by them or their
predecessors, but the theories to explain and control such influence have been diverse.12

The purpose is to create certainty and fairness. Precedent is created by the judgments on past cases.
The judgment is the speech made by the judge who has made the decision on the case, and it is
split into two parts. It should be noted that there is often more than one judge hearing a case, and
so there may be many judgments on one case. The first part is the "ratio decidendi" ("reason for
deciding"). This is the most important part as it gives the judge's decision.

That the doctrine of stare decisis is related to justice and fairness may be appreciated by
considering the observation of American philosopher William K. Franken as to what constitutes
injustice:
“The paradigm case of injustice is that in which there are two similar individuals in similar
circumstances and one of them is treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or group; and unless that agent or group can
establish that there is some relevant dissimilarity after all between the individuals concerned and
their circumstances, he or they will be guilty as charged.”

The benefit of following precedents in deciding cases provides certainty to judges in deciding
cases, people to plan and lawyers to advice their clients. It provides sufficient flexibility to
common law to develop in order to meet the changing times. This method balances these two
competing aims.

12
John Chipman Gray, Judicial Precedents - A Short Study in Comparative Jurisprudence, Harvard Law Review, Vol.
9, No. 1 (Apr. 25, 1895), pp. 27-41, http://www.jstor.org/stable/1322312
 16

Chapter 4

Circumstances weakening and strengthening the authority of a

precedent

Factors undermining the authority of a precedent

1. Abrogated decisions

A decision ceases to be binding if a statute or statutory rule inconsistent with it is

subsequently enacted, or if it is reversed or overruled by a higher court.

2. Same decision on appeal is reversed by the appellate court.

24th amendment of Indian Constitution was passed to nullify the decision of the SC in the
case of Golaknath.

3. Affirmation and Reversal on a Different Ground

A decision is affirmed or reversed on appeal on a different point.

4. Ignorance of Statute

A precedent is not binding if it was rendered in ignorance of a statute or a rule having the
force of statute i.e. delegated legislation. A court may know of existence of the statute or
rule and yet not appreciate in the matter in hand. Such a mistake also vitiates the decision.
Even a lower court can refuse to follow a precedent on this ground.

5. Inconsistency with Earlier Decision of Higher Court

A precedent is not binding if the court that decided it overlooked an inconsistent decision
of a high court. High courts cannot ignore decision of Supreme Court of India.
 17

6. Inconsistency with Earlier Decision of Same Rank

A court is not bound by its own previous decisions that are in conflict with one another. The
court of appeal and other courts are free to choose between conflicting decisions, even
though this might amount to preferring an earlier decision to a later decision.

7. Precedent sub silentio or not fully argued

When a point is not involved in a decision is not taken notice of and is not argued by a
counsel, the court may decide in favour of one party, whereas if all the points had been put
forth, the decision in favour of one party. Hence, such a rule is not an authority on the point
which had not been argued and this point is said to pass sub silentio. Binding force of a
precedent does not depend on whether a particular argument was considered therein or not,
provided the point with reference to which an argument was subsequently advanced was
actually decided by the SC.

Circumstances which increase the authority of a precedent

1. The number of judges constituting the bench and their eminence is a very important factor
in increasing the authority of precedent.
2. A unanimous decision carries more weight.
3. Affirmation, approval or following by other courts, especially by a higher tribunal, adds to
the strength of a precedent.
4. If an Act is passed embodying the law in a precedent, the gains an added authority.

There can be ways through which precedents may be overruled or judges may chose to deviate
from using the precedent.
The first is called per incuriam. Here due to a significant oversight, an important statute was
overlooked and this affected the decision significantly. In other words per incuriam means that a
court failed to take into account all the relevant and vital statutes or case authorities and that this
had a major effect on the decision. The second reason is the 'lapsed rule', this simply means that
the previous decision was valid when it was made but has simply been outdated. The final reason
is if there are conflicting decisions within the Court of Appeals own decisions, this could occur if
 18

two similar cases were being tried at the same time but different verdicts were reached. This would
mean that the next time a similar case came to be heard there would be two conflicting precedents
from which to choose. Therefore one of those decisions would have to be overruled. 13 In
extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will
often attempt to the precedent before overturning it, thereby limiting the scope of the precedent.14

The relief or tool available to a judge who wishes to avoid following a previous decision which
they would otherwise be bound to follow is called distinguishing. When a judge finds the material
facts of the present case to be sufficiently different from the earlier case he may distinguish the
two cases and refuse to follow the earlier decision. An advantage of distinguishing is that it helps
to keep judicial precedent and the law flexible.
The lawyer can argue that while the precedent case does stand for the legal proposition for which
it has been cited, the case at bar is different; that is, the cases are factually distinguishable.

Chapter 5
Declaratory Theory of Precedents

The Judges do not make laws but merely declare it. This means that when a court overrules a
decision, it does not propound a new rule, but only declares that the supposed law was never a law.
The Judges only discover law and declare.15
Blackstone approves and had the same theory. He accepted that the function of the Judge is to
discover in the existing law the principles that govern the facts of the individual cases. Thus Judges
maintain and explain the existing law,16 hence they’re law finders and not law makers.

13
The Doctrine of Judicial Precedent (October 6, 2010),
www.oup.com/uk/orc/bin/9780199557745/hw7e_ch06.pdf

14
Precedent, (September 28, 2010), en.wikipedia.org/wiki/Precedent.

15
Rajeshwar Prasad v. State of West Bengal, AIR 1965 SC 1887
16
Juris dicere et non just dare, Blackstone’s Commentaries, Vol. 1, p. 69.
 19

Austin, however, calls declaratory theory as hypocritical and childish fiction employed by
common law Judges that law is not made by them.17

In India, the Supreme Court overruled the Golaknath decision in the historic fundamental rights
case, namely, Keshwanand Bharti v. State of Kerlala and laid down the new Basic Structure theory.
In this case, the court held that the parliament can alter any provision of the Constitution except
the basic structure of the Constitution.

Chapter 6
Merits and demerits of Precedents
Merits

Development

Having precedent facilitates the development of a coherent body of legal principles that can be
used in the future

Not arbitrary

Courts have to use reason and logic in applying the law, and so that their decisions are not merely
arbitrary.

Fairness

17
John Austin, The Province of Jurisprudence p.655, 1832.
 20

Court decisions (and therefore precedents) are freely available to everyone to read and understand,
and so this is transparent and fair

Flexibility

Court have some degree of flexibility in implementing and interpreting precedents.

Certainty

Lawyers have to advise their clients on the law, and if there is a precedent the lawyer knows will
be followed by the courts, then the lawyer is able to advise the client with some degree of certainty
as to what the law is, and what the result would be if the matter went to court.

Efficiency

Where both parties to a dispute are relatively certain about the law on point in their case, they can
realistically and efficiently negotiate to settle their dispute by weighing up what they are likely to
get if they went to court.

Disadvantages of Precedents

Injustice
Every case is different, and so it is unjust to simply apply the same reasoning as in a past case.
This injustice is difficult to fix because only a superior court, faced with a case that raises the
unjust precedent, can overrule the precedent.

Manipulation
Judges who hear the same type of cases can have a disproportionate role in the development of an
area of law.
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Judges may manipulate precedents in order to achieve the outcome they consider appropriate in
the circumstances of the case. The process is not a black and white and value-free as it may seem
on its face

Uncertainty
It can be difficult to work out what the applicable precedent is from any given case, and how
generally the principle from the case can be stated. We just don't know how a case is going to be
treated until it is used in the future case.

Multiple Judgments
In cases heard before more than be judge, those judges may issue a single judgment together or
they may issue one each.
If their judgments show different lines of reasoning to arrive at the same outcome, what then is the
precedent from the case?

Chapter 7
Legal Systems

English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the
legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand,
Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law by a
Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a
decision by a superior court will be binding on inferior courts. This means that when judges try
cases they must check to see if similar cases have been tried by a court previously. If there was a
precedent set by an equal or superior court, then a judge should obey that precedent. If there is a
precedent set by an inferior court, a judge does not have to follow it, but may consider it. The
House of Lords (now the Supreme Court) however does not have to obey its own precedents.
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Only the statements of law are binding. This is known as the reason for the decision or ratio
decidendi. All other reasons are “by the way” or obiter dictum. A precedent does not bind a court
if it finds there was a lack of care in the original “Per Incuriam”. For example, if a statutory
provision or precedent had not been brought to the previous court’s attention before its decision,
the precedent would not be binding. Also, if a court finds a material difference between cases then
it can choose not to be bound by the precedent. Persuasive precedents are those that have been set
by courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly,
precedents can be overruled by a subsequent decision by a superior court or by an Act of
Parliament.

Indian Legal System

Indian Law is largely based on English common law because of the long period of British colonial
influence during the period of the British Raj.

After the failed rebellion against the British in 1857, the British Parliament took over the reign of
India from the British East India Company, and British India came under the direct rule of the
Crown. The British Parliament passed the Government of India Act of 1858 to this effect, which
set up the structure of British government in India. It established in England the office of
the Secretary of State for India through whom the Parliament would exercise its rule, along with a
Council of India to aid him. It also established the office of the Governor-General of India along
with an Executive Council in India, which consisted of high officials of the British Government.

Much of contemporary Indian law shows substantial European and American influence. Various
legislations first introduced by the British are still in effect in their modified forms today. During
the drafting of the Indian Constitution, laws from Ireland, the United States, Britain,
and France were all synthesized to get a refined set of Indian laws, as it currently stands. Indian
laws also adhere to the United Nations guidelines on human rights law and the environmental law.
Certain international trade laws, such as those on intellectual property, are also enforced in India.

Indian family law is complex, with each religion adhering to its own specific laws. In most states,
registering marriages and divorces is not compulsory. There are separate laws
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governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to
this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all
religions have a common law regarding marriages, divorces and adoption.

Ancient India represented a distinct tradition of law, and had an historically independent school of
legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100
AD, were influential treatises in India, texts that were considered authoritative legal guidance.
Manu’s central philosophy was tolerance and pluralism, and was cited across Southeast Asia.
Early in this period, which finally culminated in the creation of the Gupta Empire, relations with
ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions
of international law in various parts of the world show that they are inherent in international
society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted
in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law,
of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-
permanent character. When India became part of the British Empire, there was a break in tradition,
and Hindu and Islamic law were supplanted by the common law. As a result, the present judicial
system of the country derives largely from the British system and has little correlation to the
institutions of the pre-British era.

In India, stare decisis is strictly followed and these are the general principles of stare decisis
followed in India.

Each court is absolutely bound by the decisions of the higher courts above it.

Decision of one of the high courts is not binding on any other high court. They have only
persuasive value. In India, Supreme Court is not bound by its own decision.

A single bench is bound by the decision of a division bench of the same high court but a division
bench is not to follow a decision of a single bench of the same high court.

CONCLUSION

From the brief discussion above about the legal value of precedents we can clearly infer that these
play a very important role in filling up the lacunas in law and the various statues. These also help
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in the upholding of customs that influence the region thereby making decisions morally acceptable
for the people. This thereby increases their faith in the judiciary which helps in legal development.
These moreover being a sort of respect for the earlier views of various renowned jurists, helps in
upholding the principle of stare decisis. It is a matter of great convenience it is necessary that a
question once decided should be settled and should not be subject to re-argument in every case in
which it arises. It will save labour of the judges and the lawyers. This way it saves lots of time for
the judiciary which is a real challenge in the present day legal system with so many cases still
pending for many years now. Precedents bring certainty in law. If the courts do not follow
precedents and the judges start deciding and determining issues every time afresh without having
regard to the previous decisions on the point, the law would become the most uncertain. Precedents
bring flexibility to law. Judges in giving their decisions are influenced by social, economic and
many other values of their age. They mould and shape the law according to the changed conditions
and thus bring flexibility to law.

Bibliography

Studies in Jurisprudence and legal theory, 6th edition, Dr. N.V. Paranjape

Jurisprudence & legal theory, 5th edition, V.D. Mahajan

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REFERENCES

• www.legalessays.com
• Studies in Jurisprudence and legal theory, 6th edition, Dr. N.V. Paranjape
• Jurisprudence & legal theory, 5th edition, V.D. Mahajan
• www.illionois.com
• www.inbrief.co.uk
• www.britannica.com
• www.lawresources.co.uk
• www.slideshare.net
• www.yourarticlelibrary.com
• www.oup.com