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PRECEDENT

TABLE OF CONTENTS
1) Introduction..2 2) Meaning of Precedent.2 3) Importance of Precedent..3 4) Precedent as a Source of Law.3 5) Nature of Judicial Precedent..4 6) Kinds of Precedent.5 7) Declaratory Theory of Precedents..6 8) Ratio Decidendi.7 9) Obiter Dicta.8 10) Doctrine of Stare Decisis.10 11) Position of Doctrine of Precedent in India.11 Doctrine of Precedent in High Courts of India..12 Supreme Court.15 12) Circumstances which Destroy the Binding Force of Judicial Precedents.16 13) Prospective Overruling17 14) Increase in Authority of a Precedent.18 15) Decrease in Authority of a Precedent18 16) Advantages and Disadvantages of Precedent.19 17) Conclusion......................................21 18) Bibliography.22

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

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INTRODUCTION Precedent means the judgement or decision of a court of law cited as an authority for the legal principle embodied in it. The doctrine of precedent, which is also known as the doctrine of stare decisis, i.e., to stand by the decision, is based on the principle that like cases should be decided alike. Once a case is decided by a judge by applying a principle, a case on similar facts which may arise in future must also be decided by applying the same principle. This is not only saves the time and labour of judges, but also secures certainty, predictability, and uniformity in the application of law. Judicial 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. Precedents have a binding force on judicial tribunals for deciding similar cases in future. In continental countries like Germany, France, Italy, judicial precedent has only instructive value and it is not authoritative. On the other hand, in English legal system it has authoritative importance, it is in fact a legal source of law which the courts are bound to follw.1 According to Salmond, a judicial precedent speaks in England with authority; it is not merely the evidence of law but a source of it; and the courts are bound to follow the law that is so established. MEANING OF PRECEDENT In the Oxford Dictionary precedent is defined as 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. A precedent can also be defined as a statement of law found in judicial decision of a High Court or a superior Court. In general use the term precedent means some set pattern guiding the future conduct. In the judicial field it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents. It is the attribution of authority that makes a judicial decision a judicial precedent. The application of such judicial precedents is governed by different principles in different legal systems. These principles are called the doctrine of precedent. According to Salmond, the doctrine of precedent has two meanings, namely, (i) in a loose sense, precedent includes merely reported case-law which may be cited and followed by courts, (ii) in its strict sense, precedent means that case-law which not only has a great binding authority but also must be followed. Holdsworth supports the doctrine in the loose sense. In recent years, the value
1

Fetzgerald P.J. (ed.) : Salmond on Jurisprudence, (12 ed.) p. 141.

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of doctrine of precedent has become a debatable issue. There is no dissatisfaction with the practice of citing cases and attaching weight to them, the difference of opinion is as to the present practice of treating precedents as absolutely binding.2 IMPORTANCE OF PRECEDENT As Salmond has pointed out, .. the importance of judicial precedents has always been a distinguishing characteristic of English Law. But Salmond goes further and maintains that the judges of the English Courts have imposed their own view of law and justice upon the whole realm. The common law of England is the result, no doubt of precedents, but these precedents have been, to some extent at least, based on reasonable and time honoured customs and usages of people. Salmond says: In England the bench has always given law to the bar. But in England or India, or in any other country, the judges could not have worked so efficiently without the help and the co-operation of the bar. The lawyers, on the whole, do help the bar, by citing precedents and explaining the law. And so far as that help, before the beginning of precedents, was concerned, surely the barristers of England must have relied upon customs and usages for their arguments and adduced evidence of merchants of repute and others who were aware of the customs. The Common Law of England, therefore, is: custom plus contribution of the judges (making on the total, the precedent). But this, of course, cannot be universally true. There must be some precedents, no doubt, irrespective of any custom, and evolved only out of the wisdom of the judges who after hearing the ingenious arguments of the barristers, made and gave the law to the bar as also to the realm. Moreover, the principles of equity were solely the result of judicial pronouncements. PRECEDENT AS A SOURCE OF LAW Judicial precedent when speaks with authority, the embodied principle becomes binding for future cases and it thus becomes a source of law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the state flows from the decisions of the superior courts. 3 Expressing his views on precedents, Blackstone pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation. They also keep the scale of justice even and steady and not liable to be waved away with every new Judges opinion. Justice Cardazo also supports the view that adherence to precedent should be the rule and not an exception. The rule of precedent should, however, be abandoned if it is inconsistent with the notion of justice or derogatory to social welfare policy.4 The doctrine of precedent has gained favour with English Courts because it leads to certainty of law and
2 3 4

Fetzgerald P.J. (ed.) : Salmond on Jurisprudence, (12 ed.) p. 141. Union of India v. Raghubir Singh, (1989) 2 SCC 754, 765, : AIR 1989 SC 1933. Cardozo : The Nature of the Judicial Process, pp. 149-151.

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also predictability of decision is always preferable to approximation of ideals. Again, it enables illogical and unsatisfactory decisions to be overruled to meet the ends of justice. According to Jeremy Bentham, precedent is a Judge-made law while Austin calls it as Judiciarys law. Keeton holds precedents as those judicial pronouncements of the Court which carry with them certain authority having a binding force. It has been seen how precedents operate as an important source of law. Authoritative precedents are a legal source of law, in so far as they are binding on the judges. Persuasive Precedents are a historical source of law, is so far as they have only a persuasive or guiding (but not a binding) efficacy, and thus provide a historical basis on which a law may be built by the judge if he is favourably inclined to that precedent and accepts it. Each original precedent, so to say, laid a new pillar of law, and helped in the growth and development of the Common Law of England. Each declaratory precedent further strengthened and confirmed each original precedent, thereby making the law certain and safe to be followed. The role of precedent in the making of law is indeed very great. NATURE OF JUDICIAL PRECEDENT A judicial precedent is purely constitutive in nature and never abrogative. This is other words means that it can create law but cannot alter it. The Judges are not at liberty to substitute their own views where there is a settled principle of law. They can only fill in gaps in the legal system and remove imperfections in the existing 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. This implies that Judges decision is deduced directly from general to particular in circumstances of the cases before him. Inductive method which is a characteristic of English law, on the hand, starts with the same primary object of finding the principle applicable to the particular case, but it does not conceive the rule as being applicable directly by simple method of deduction. It rather moves from particular to general. The method involves reasoning inductively and in the process, the Judge is bound by the decision of the courts higher than his own Court.5 Thus it would be seen that deductive method of judicial law making pre-supposes law as static whereas in actuality judicial decisions may change the law by overruling precedents or
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Paton G.W. : A Textbook of Jurisprudence, (1964) p. 172.

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by announcing new legal norms. It is for this reason, it is said that deductive method may explain legal stability but it cannot account for legal change.6 KINDS OF PRECEDENTS 1) Authoritative and Persuasive According to Salmond, an authoritative precedent is one which judges must follow whether they approve of it or not. Authoritative precedents are the decisions of superior court of justice which are binding on subordinate courts. A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. Authoritative precedents are the legal sources of law and persuasive are merely historical. Authoritative precedents establish law in pursuance of definite rule of law which confers upon them that effect. If persuasive precedents succeed in establishing law at all, they do so indirectly by serving as the historical ground of some later authoritative precedent. They do not have any legal force or effect in themselves. The authoritative precedents must be followed by the judges whether they approve of them or not. The persuasive precedents can merely persuade the judge but it is up to the judge to follow them or not. The authoritative precedents in England are the decisions of the superior courts of justice. Examples of persuasive precedents are foreign judgements, especially those of American Courts, Canadian Courts, Australian Courts, Irish Courts, etc., the decision of superior courts in other parts of British Empire, the Judgements of Privy Council and the judicial dicta. 2) Absolute and Conditional Precedents Authoritative precedents are of two kinds, absolute and conditional. In case of absolutely authoritative precedents, they have to be followed by the judges even if they do not approve of it. They are entitled to implicit obedience. In the case of authoritative precedents having a conditional authority, the courts can disregard them under special circumstances. Ordinarily, they are binding but under special circumstances, they can be disregarded. The court is entitled to do so if the decision is a wrong one. The decision must be contrary to law and reason. It is contrary to law when there is already in existence an established rule of law on the point and the decision does not follow it. When a law on a point is already settled, the only duty of the judge is to declare and apply it. However, when the law is not settled, the judge can make law for the occasion, but while doing so, it is his duty to follow reason. While overruling conditional authoritative precedents, the courts must not run the risk of making the law uncertain. Certainty of law is as important as justice itself. A conditional precedent can be disregarded either by dissenting or by overruling. In

Protection of Women Against Domestic Violence Act, 2005; Welfare of Parents and Senior Citizens Act, 2007.

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the case of overruling, the precedent overruled is authoritatively pronounced to be wrong as that it cannot be followed by courts in the future. 3) Declaratory and Original Precedents According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule. In the case of a declaratory precedent, the rule is applied because it is already law. In case of an original precedent, it is law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great. They alone develop the law of the country. They serve as good evidence of law for the future. A declaratory precedent is as a good source of law as an original precedent. The legal authority of both is exactly the same. An original precedent is an authority and source of law but both original and declaratory precedents have their own value. DECLARATORY THEORY OF PRECEDENTS The Judges at least in theory, do not make law, they merely declare it, that is to say, when a court overrules a decision, it does not propound a new rule, but only declares that the supposed law was never law. Even Blackstone has accepted this view. He observed that the function of the Judge is to discover in the existing law the principles that govern the facts of individual cases. The Judges maintain and explain the existing law,7 hence, they are lawfinders and not law-makers. Lord Esher in the famous Willis v. Baddeley8 case observed, there is in fact no such thing as Judge-made law, for the Judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. Jeremy Bentham, however, does not subscribe to the above view regarding the declaratory theory of precedents. He calls this theory as an orthodox view which is wilful falsehood having for its object stealing of legislative power by and for hands which could not openly claim it. Austin calls declaratory theory as hypocritical and a childish fiction employed by Common Law Judges that law is not made by them.9 Blackstones theory has, however, been supported by the eminent American Jurist James Carter and he limits judicial decisions to mere declaration of existing law. According to him, precedents are merely interpretative of the existing law, they do not create new law.10 This view of Carter about precedents has been criticised by some jurists on the ground that in
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Juris dicere et non just dare, Blackstones Commentaries, Vol. 1, p. 69. (1892) 2 QB 324 (326). 9 Austin : Jurisprudence p.655. 10 Carter : Law, its Origin, Growth and Functions, p.185.

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cases which are not covered by existing law, the judicial decisions create new notions and formulate new principles which were never contemplated earlier. For example, in Rylands v. Flectcher11 a new category of strict liability was evolved wherein it was laid down that the keeping of a dangerous thing by a person on his premises was at his own peril for if it escaped as a result of the negligence and harmed a third party, the liability would still be on the keeper of that dangerous chattel and the plea of inevitable accident would be no defence to him. In America also the doctrine of precedents has created new law for future in a number of cases. In Brown v. Board of Education,12 the Supreme Court of U.S.A. gave a historic decision which started an era of unprecedented legal and social reforms. The Court held that racial segregation prevailing in most of the Southern States of U.S.A to be unconstitutional thus overruling its earlier doctrine that separate but equal educational facilities were compatible with the constitutional mandate of equality. Likewise, in India, the Supreme Court overruled the Golaknath decision13 in the historic Fundamental Rights case, namely Keshavanand Bharti v. State of Kerala14 and laid down a 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. RATIO DECIDENDI It is well established that doctrine of precedent presupposes existence of the hierarchy of courts. The general rule is that a court is bound by the decisions of all courts higher than itself. In India, all High Courts of the States are bound by the decisions of the Supreme Court and all courts subordinate to a High Court are bound by the High Courts decision. However, the decision of one High Court is not binding on another High Court. It only has a persuasive authority. Having considered the extent to which courts are bound by previous decisions, it becomes necessary to consider what actually constitutes the decision in a case and what is that which is actually binding on the lower courts. A decision generally has two aspects: 1) A concrete decision binding on the parties to the litigation and, therefore, having practical consequences, and

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(1868) LR 3 HL 330. (1954) 347 US 483. I.C. Golaknath and Ors. v. State of Punjab and Anr., AIR 1967 SC 1643. AIR 1973 SC 1481.

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2) A judicial principle, which is general in nature and which is the basis of the concrete and practical decision, operates as a precedent and which has the force of law. This general principle applied in a particular decision is known as the ratio decidendi of the case. The term ratio decidendi literally means reason of the decision. It is the general principle which is deduced in a case. In other words, ratio decidendi is the rule of law upon which the decision is founded. It differs from res judicata which means decision given in a particular case and is conclusive between the parties of the case. According to Salmond: A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. Rupert Cross says that a ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.15 In the opinion of Salmond, ratio decidendi roughly denotes the law applied by and acted upon by the Court or the rule which the courts regard as governing the case. Professor Goodhart has criticised Salmonds view on ratio decidendi and pointed out that reason for the decision is not necessarily the ratio decidendi because it may be bad and yet the case may become an authority. He observed that ratio decidendi is not necessarily the proposition of law stated in a judgement because the proposition may be broader than necessary or it may even be narrower. According to him ratio decidendi is nothing more that the decision based on the material facts of the case.16 It implies that it is the deciding Judge who decided what are the material facts and those can be discovered by a perusal of judgement. The critics of Goodhart theory suggest that it overlooks two points. Firstly, the theory ignores that it is within the function of the Judges in the subsequent cases to say what they choose to regard as the material facts of the earlier case. Secondly, two persons agree to a collection of individual facts and yet different impressions whether the two cases resemble each other sufficiently so as to be regarded as a precedent for subsequent cases. Keeton holds a view that ratio decidendi is a principle of law which forms the basis of decision in a particular case. OBITER DICTA In the course of judgement, a Judge may make various observations which are not precisely relevant to the issues before him. For instance, he may illustrate his reasoning by reference
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Rupert Cross : Precedent in English Law, p. 86. Goodhart : The ratio decidendi of the case, Essays in Jurisprudence and Common Law, Vol. 1

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to hypothetical situations. Whatever said by the Court by the way of statements of law which lay down a rule but which is unnecessary for the purpose in hard, are called obiter dicta. These dictas have the force of persuasive authority and are not binding upon the courts. The courts may seek help from them but are not bound to follow them. Obiter dicta literally mean something said by the Judge by the way, which does not have any binding authority. Goodhart defines obiter dictum as a conclusion based on a fact, the existence of which has not been determined by the court. The difference between ratio decidendi and obiter dicta is that while the ratio decidendi is the general principle of the case, obiter dicta is what the judge said unwantedly, just by the way. Another difference is that obiter dicta generally possesses persuasive efficacy because they are the dicta said just by the way, and they do not have any binding authority whereas ratio decidendi has a binding authority because it is the general principle of law on which the case has been decided. The distinction between ratio decidendi and obiter dictum can be better understood by discussing the case of S.R. Bommai v. Union of India.17 In this case, the nine Judges Bench of the Supreme Court unanimously held that secularism is one of the basic structures of the 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 Articles 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 the basic structure of the Constitution. As to the importance of obiter dicta, Lord Sterndales observation may be quoted. He observed: Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the Judges mind. Such dicta, though entitled to respect due to the speaker, may fairly be disregarded by Judges before whom point has been raised. Some dicta, however, are deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the court. No doubt, it is open to other Judges to give decisions contrary to such dicta but much greater weight attaches to them than to the former class.

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(1994) 3 SCC 1 (Pages 78, 118, 205)

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DOCTRINE OF STARE DECISIS Like England, the doctrine of stare decisis has been accepted under the Indian Law.18 Since the law in India is mostly based in the English Law therefore, the system of law is fairly developed in India. The doctrine of stare decisis has essentially developed as a result of progress made in law-reporting. To begin with, there was no doctrine of stare decisis as there was no reporting of the decisions of the courts in England. The origin of reporting of decisions in England can be traced back to seventeenth century when the decisions of the Exchequer Courts came to be reported and were given a binding force, In 1833, Chief Justice Park reiterated the need for recognising the binding force of precedents in the historic decision in Mirehouse v. Rennel.19 Later, with the establishment of the High Court of Judicature by the Acts of 1873 and 1875 the doctrine of stare decisis was firmly established and now it forms an indispensable part of the British legal system. The doctrine of stare decisis literally means let the decision stand in its rightful place. The full form of the principle, stare decisis et non quieta movere, which means to stand by decisions and not to disturb what is settled was put by Coke in the classic English version as: Those things which have been so often adjudged ought to rest in peace. When a decision contains a new principle, it is binding on subordinate courts and has persuasive authority for equivalent courts. This rule is based on expediency and public policy. Although the doctrine is generally followed by the courts, but it may not be applicable if the court is convinced that the earlier wrong is likely to perpetuate resulting into erroneous decision. The operation of the doctrine of stare decisis presupposes the existence of a hierarchy of courts. For example, in India the lower-most 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, the Supreme Court is the highest judicial Court in India. The general principles on which the doctrine of stare decisis is based may be stated 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 decision. 3) The decision of one High Court is not binding on any other High Court and it has only persuasive value.

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Article 141 of the Indian Constitution C L & Fin 527 (546)

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4) A Single Bench Judge is bound by the decision of a Division Bench of the same High Court20 but a Division Bench is not bound to follow a decision of a Single Bench Judge of the same High Court. The Supreme Court in Maktul v. Manbhari,21 held that if the correctness of a decision has been challenged time and again, the rule of stare decisis need not be applied. However, the Supreme Court in Supreme Court Advocates on Record Associations v. Union of India22 held that doctrine of stare decisis is not an inflexible rule and it has little relevance in constitutional cases. The Court observed that there is no doubt that the rule of stare decisis brings about consistency and uniformity but at the same time in exercising its inherit power the Supreme Court should ask itself whether in the interest of public good or any other valid reason, it is necessary that its earlier decision should be revised. In Krishna Swamy v. Union of India,23 Justice Ramaswamy of the Supreme Court spelt out the basic philosophy and limits of the doctrine of stare decisis and observed: The decision of the Court is the last word on the interpretation of the Constitution and the law of the land under Article 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 time.. The law laid down by this Court operates as a precedent and thus needs stability, continuity and certainty. Adherence to precedents, i.e., stare decisis is usually a wise policy for rule of law unless there are compelling and substantial reasons for its reconsideration in larger public interest. In Bachan Singh v. State of Punjab24 the Supreme Court held that, if the rule of stare decisis were followed blindly and mechanically, it would dwarf and stultify the growth of law and affect its capacity to the changing needs of society. In Sarwan Singh Lamba v. Union of India25 the Apex Court ruled that even obiter dicter of the Supreme Court is expected to be followed by other Courts. POSITION OF THE DOCTRINE OF PRECEDENT IN INDIA In the Indian context, the decisions of the House of Lords, Privy Council and Supreme Court of USA or Canada have only persuasive value. The decisions of the Supreme Court of India are binding on all courts in India and they constitute authoritative precedents. Article 141 of the Constitution of India gives a constitutional status to the doctrine of precedent in respect
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Taraponda v. Mritunjoya , AIR 1958 Cal 314. AIR 1958 SC 918. AIR 1994 SC 268. AIR 1993 SC 1407. AIR 1980 SC 898. AIR 1995 SC 1729.

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of law declared by the Supreme Court of India. Precedents which enunciate the rules of law form the basis of administration of justice in India.26 The decisions of the various High Courts are binding on the courts below them within their respective State limits. In Bengal Immunity Ltd. v. State of Bihar27 the Supreme Court held that it is not bound by its own decision. The Supreme Court in A.R. Antulay v. R.S. Nayak28 ignored the binding value of its own pronouncements. Prior to the Indian Independence, the doctrine of judicial precedent was first recognized under Section 212 of the Government of India Act, 1935. The section provided that the law declared by the Federal Court and by the judgement of the Privy Council shall be binding on all the courts in British India. The High Courts in India were bound by the decisions of the Federal Court and Privy Council. But the Federal Court and the Privy Council were not bound their own previous decisions. The Federal Court was not bound by the decisions of the Privy Council but with regard to other civil matters, Privy Council decisions were binding on the Federal Court of India. After the Constitution of India came into force, the Supreme Court became the highest Court in the hierarchy of courts in India. Therefore, the decisions of the English Court have merely persuasive value and it is not obligatory for the Supreme Court to follow them.29 It is not even bound by the obiter dicta of the English Courts.30 Likewise, the judgements of the Privy Council are not binding on the Supreme Court.31 It must be stated that the same precedent may be authoritative for one court while it may be merely persuasive for another. Therefore, whether a precedent is authoritative or persuasive shall depend upon the circumstances and the rank of the court by which it is being used. For example, a decision of a High Court shall be authoritative for its subordinate courts whereas it would be only persuasive for High Courts of other states. Likewise, judgements of foreign courts have only persuasive value for Indian courts.32 Doctrine of Precedent in High Courts of India In trying to understand the operation of the doctrine of precedents in the High Courts of India, the following questions have to be answered: 1) How far the decisions of a High Court are binding on the courts below? 2) How far a High Court is bound by its own decision?
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Tribuvan Das v. Ratilal, AIR 1968 SC 372. AIR 1955 SC 661. AIR 1988 SC 1531. Manipur Adminstration v. Bira Singh, AIR 1965 SC 87. Chaturbhuj Vithaldas v. Moreswar Parashram, AIR 1956 SC 216. Srinivas v. Narayan, AIR 1954 SC 379 Attorney General v. Don & Canons of Windsor, 8 HL 369.

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3) What is the authority of one High Court decision in another High Court? 4) What is the authority of Federal Court decisions in the High Courts? The Federal Court was a court of appeal from the High Courts from 1935 to 1950. 5) What is the authority of Privy Council decisions in the High Courts? The Privy Council was a court of appeal from the High Courts before 1935 and after 1935 Federal Court came in between the two. 6) What is the authority of the Supreme Court decisions in High Courts? The answers to the above questions are as follows: 1) The decisions of a High Court are binding on all the Subordinate Courts and Tribunals within its jurisdiction. The decisions of one High Court have only a persuasive value in a court which is within the jurisdiction of another Higher Court. But if such a decision is in conflict with any decision of the High Court within whose jurisdiction that court is situated, it has no value and the decisions of that is binding on the court.33 In case of there being any conflict between the two decisions of co-equal Benches, the decisions, later in time was to be followed. However, it has been observed that when judgements of the superior court are of co-equal Benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered.34 2) How far is a High Court bound by its own decision? In High Courts, generally, appeals are heard by a single judge. When an appeal involves some important and complicated questions of law, it is referred to a larger Bench. A single judge constitutes the smallest Bench. A Bench of two judges is called the Division Bench. Three or more judges constitute a Full-Bench. The decisions of a Bench are binding on a smaller or a co-ordinate Bench. One Bench of the same High Court cannot take a view contrary to the decisions given earlier by another co-ordinate Bench of the Court. It is bound by such decisions.35 The decision of a Division Bench is binding on a single judge of the same High Court even though decision of Division Bench may be wrong.36 If a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a division Bench or of single Judge, needs to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should

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M. Abdul Sattar v. H.A. Hakeem, AIR 1976 Andhra Pradesh 84. Indo Swiss Time Ltd. v. Umrao, AIR 1981 P. & H. 213 (F.B.). V.R.G. & G.O.M.C. Co. v. State of A.P., AIR 1972 SC 51. Original Mercantile Agency v. Presiding Officer, AIR 1973 SC 1143.

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refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.37 One division Bench decision is binding on another Division Bench.38 Judgement of the earlier Division Bench of the High Court is binding in subsequent proceedings of the same case.39 If a Division Bench does not agree with another Division Bench in a decision rendered earlier, the former must either follow the earlier decision or place the matter before the Chief Justice for being referred to a larger Bench. But it cannot take upon itself the task of holding that the decision of the first Division Bench was wrong.40 Thus if a single judge or a Division Bench disagrees with the decision of Bench of a coordinate jurisdiction it should refer the matter to a larger Bench. To summarize, when a Bench of High Court gives a decision on a question of law, in general, be followed by other benches unless they have reason to differ from it, in which case the proper cause to adopt would be to refer the question for the decision of a Full Bench.41 3) What is the authority of one High Court decision in another High Court? The High Courts are the Courts of coordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts. However, in practice, they are cited in other High Courts and they have persuasive value. The Full Bench decisions of one High Court command great respect in other High Courts. The decisions of older High Courts carry more weight. 4) What is the authority of the Federal Court decision in the High Courts? The decisions of the Federal Court were made binding by Section 212 of the Government of India Act, 1935 which has been cited earlier and they continue to be so even after 1950 by the authority of Article 225 of the Indian Constitution. However, they are binding only so long as they have not been overruled by the Supreme Court. 5) Pre-Constitution decisions of the Privy Council are binding on all the High Courts unless they conflict with any decision of the Supreme Court. Article 395 of the Indian Constitution, which saves the abolition of Privy Council Jurisdiction Act, 1949 makes the decision of the Privy Council authoritative. 6) As observed earlier, the Supreme Court is the highest judicial tribunal in India. Therefore, the decisions given by the Supreme Court are binding on all the judicial tribunals of the
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Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767, 1773. Raghavamma v. Chenchamma, AIR 1964 SC 136. State of Rajasthan v. Tara Chand Jain, AIR 1973 SC 2131. Nathu Prasad v. Kapurchand, AIR 1976 M.P. 136 (E.B.), 143. Jaisri v. Rajdewan, AIR 1962 SC 83.

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country. This authority to the Supreme Court decisions has been given, in unequivocal words, by the Constitution. Article 141 runsThe law declared by the Supreme Court shall be binding on all courts within the territory of India. Thus, Supreme Court decision binds the High Courts. The High Court cannot take that it does not bind it.42 The term law declared means not only the ratio decidendi of a decision but it includes an obiter dictum also provided it is upon a point raised and argued.43 While considering the constitutionality of an Act, the curative suggestions given by Supreme Court are not obiter dicta and are binding.44 The Supreme Court The Supreme Court, established by the Indian Constitution, 1950, is the highest judicial tribunal of the Indian Union. The law declared by it is binding on all the courts of the country. When the Supreme Court, as the apex adjudicator declaring the law for the country and invested with Constitutional credentials under Article 141 clarifies a confused juridical situation, its substantial role is of legal mentor of the nation. Supreme Court is not bound by its own decisions. The expression all courts used in Article 141 refers only to the courts other than the Supreme Court. Therefore, the Supreme Court is not bound by its own decisions except to the extent that a smaller Bench is bound by the decision of a larger Bench and that of a coequal Bench.45 Thus the doctrine of stare decisis is not applicable in the Supreme Court. However, in practice, the earlier decision of the Court command great respect in the Court. It has been held that long standing legal position should not be disturbed.46 Further, long standing and consistently affirmed concept cannot be inferred to have been rejected by the court. If it proposed to be rejected, it must be put in issue in a straight matter and be pronounced upon.47 The Supreme Court has observed that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.48 In one case49 it has stated that it is only when the Supreme
42 43 44 45 46 47 48 49

Indian Oil Corporation v. Municipal Corporation, AIR 1995 SC 148. Bimla Devi v. Chaturvedi, AIR 1953 Allahabad, 613 at p. 616. Union Carbide v. Union of India, AIR 1992 SC 248. Indian Oil Corporation v. Muncipal Corporation, AIR 1995 SC 1490. B.L. Naidu v. Distt. Educational Office, AIR 1992 SC 2003. Organon (India) Ltd. v. Collecter of Excise, AIR 1994 SC 2489. Manganese Ore (India) v. R. Asst. Commr., AIR 1976 SC 410, 413. T.I. Officer Tuticorin v. T.S.D. Nadar, AIR 1976 SC 623, 627.

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Court finds itself unable to accent the earlier view that it would be justified in deciding the case before it in a different way. Thus, the Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is found erroneous and is thus detrimental to the general welfare of the public, the Supreme Court will not hesitate in departing from it. CIRCUMSTANCES WHICH DESTROY THE BINDING FORCE OF JUDICIAL PRECEDENTS Once a decision is overruled by any subsequent ruling, it loses all its binding authority. But there are certain other circumstances which also destroy or weaken the binding force of judicial precedents either partially or totally. They are as follows:1. Ignorance of Statute.- A precedent is not binding if it be rendered in ignorance of any statute or any other rule having the force of statute. It is also not binding if the court had knowledge of the existence of the statute but it failed to appreciate its relevance to the matter in hand due to negligence or ignorance. 2. Inconsistency between earlier decisions of higher court.- A precedent loses its binding force completely, if it is inconsistent with the decision of the higher court. Thus the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd.50 observed that it is bound to follow its own previous decision as well those of courts of co-ordinate jurisdiction. However, the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords or if it finds that there is inconsistency between its earlier decision. 3. Inconsistency between earlier decisions of the court of the same rank.- A Court is not bound by its own earlier decision which are conflicting with each other. The conflict may arise due to inadvertence, ignorance or forgetfulness in not citing earlier decisions before the Court. In such a case the earlier decisions are not binding on the Court. 4. Precedent sub silentio.- A decision is said to be sub silentio when the point of law involved in it is not fully argued or not perceived by the court. The decision in General v. Worth of Paris Ltd.51 is a good illustration to explain precedent sub silentio. In the case an employee who was discharged by the defendant company obtained damages for his wrongful dismissal against the company. He applied for a guarnishee order on a bank account of the company which was in the name of the liquidator. The only point argued was priority of claimants debt and the Court of
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(1944) KB 718 (729). (1936) 2 All ER 905 (CA).

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Appeal granted the order. The question whether the guarnishee order could be properly made on an account standing in the name of the liquidator was never argued and considered by the court. Therefore, when this very point was argued in a subsequent case before the Court of Appeal, the Court held itself not bound by the previous decision as the point was sub silentio in the previous case. 5. Decision of equally divided court.- There may be cases where the Judges of the Appellate Court are equally divided. In such a case practice is to dismiss the appeal and hold that the decision appealed against it correctly decided. But this problem does not arise nowadays because Benches are always constituted with uneven number of Judges. In India, however, where the Judges in a Division Bench of a High Court are equally divided, the practice is to refer the case to a third Judge whose decision shall be treated as final unless it is set aside by the Supreme Court. 6. Erroneous decisions.- The decisions which are founded on misconceived principles or in conflict with the fundamental principles of law lose their binding force totally. 7. Abrogated decisions.- A decision ceases to be binding if a statute inconsistent with it is subsequently enacted. So also it ceases to be binding if it is reversed, overruled or abrogated. If a decision is wrong or irrational, it may be abrogated by a subsequent enactment or decision of a higher court.52 8. Affirmation or reversal on a different ground.- When a higher court either affirms or reverses the judgement of the lower court on a ground different from that on which the judgement rests, the original judgement is not deprived of all the authority but the subsequent court may take a view on that a particular point which the higher court did not touch, is rightly decided. PROSPECTIVE OVERRULING The overruling of a decision is an authoritative declaration that the decision overruled is not good law. When the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from beginning was as per its decision and that it was never the law otherwise. Generally the overruled decision would be regarded as not good law for all purposes so that all arrangements already made on the basis of that decision would fall to the ground. This retrospective operation of overruling would work hardship. So in a proper case the highest court when it overrules a decision, particularly its own decisions, may seek to remove this

52

This is expressed in the Latin maxim : cessante ratione legis cessat ipsa lex.

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hardship by restricting the operation of the later decision to future cases only. Such overruling is called prospective overruling. The Supreme Court of India adopted the doctrine of prospective overruling in Golaknath v. State of Punjab53, wherein it overruled its earlier decisions in Sankari Prasad v. Union of India54 and Sajjan Singh v. State of Rajasthan55 by which the First and Seventeenth Constitution Amendment were held valid. The Court in Golaknath case held that hereafter fundamental rights could not be altered resorting to provisions of Article 368 of the Constitution. It also held that the First, Fourth and Seventeenth Amendments violative of right to property as given in Articles 31-A and 31-B are therefore, invalid. But their Lordships did not give retrospective effect to this decision. In other words, the First, Fourth and Seventeenth Amendments were held valid up to the decision in Golaknaths case. The Supreme Court restricted the effect of Golaknath decision to future cases only by employing the doctrine of prospective overruling. Thus it would be seen that since Golaknaths case, the Judges in India apply the existing law to past transactions and the newly created formulation to future instances through the device of prospective overruling. INCREASE IN AUTHORITY OF A PRECEDENT There are circumstances which either tend to increase, or lessen the authority of a precedent. In increasing the authority of a precedent the number of judges constituting the Bench and their eminence is a very important factor. To some extent, the eminence of the lawyers arguing the case also contributes in enhancing the authority of precedent. A unanimous decision carries more weight. Affirmation, approval, or following by the other courts, especially by a higher tribunal, adds to the strength of a precedent. When an Act is passed embodying the law laid down in a precedent, the precedent gains an added authority. To a certain extent the duration also adds to the authority of a decision. DECREASE IN AUTHORITY OF A PRECEDENT There are certain circumstances which tend to lessen the authority of a precedent. When the judges constituting the bench and giving the decision are lesser in number or if the judges are not of a recognized merit, the precedent has comparatively a lesser weight. Where the decision is not unanimous, or the majority is only nominal, or the dissenting judgement, if any, is very logical and convincing, the authority of a precedent suffers. Similarly, a decision in which the case was not fully argued on both sides, or was not argued
53 54 55

AIR 1967 SC 1643 AIR 1951 SC 458 AIR 1965 SC 845

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from one side at all, or was compromised, or reliance was placed upon on a precedent of no authority carries comparatively less weight. Where the reasoning given in a case is apparently defective, or is no longer applicable due to changed conditions, or other reasons and the decision on its very face appears unjust or causes hardship, its authority is lessened. ADVANTAGES AND DISADVANTAGES OF PRECEDENT With the constant increase in the bulk of reported cases, the future of the doctrine of precedent is becoming a matter of utter conjecture. According to Professor Goodhart, the position in America is still worse because of tremendous rise in the volume of reported cases annually. Many of the relevant authorities are overlooked due to multiplication of case-law , with the result the doctrine of stare decisis is gradually losing its importance, for the doctrine to operate effectively it is necessary that the Bench and the Bar should keep themselves well informed about the latest case-law and update their knowledge of cases through regular study of decided cases. Undoubtedly, judicial precedent is still a potential source of law which has its own merits and demerits. These may be summarised as follows: Merits: 1) Precedents enable the judges to re-shape the law according to the social needs and at the same time binding authority of precedents acts an effective check on the arbitrary discretion of the judges. That apart, precedents being based on vast experience and maturity of the Judges, provide useful guidelines for the deciding judge in disposing of the case. 2) The law contained in case-law is certain and easy to understand. Once a case is decided, people know it with certainty as to what would be the ruling in similar cases which arise in future. Therefore, precedent helps people to know the intricate principles of law to a considerable extent. 3) Precedents provide flexibility to the law to adapt itself to new situations and social conditions. The case-law relating to right to property in India from Sankari Prasad56 to Minerva Mills57 decision and changes in judicial trend in this regard sufficiently illustrate this point. 4) Precedents are based on customs and therefore, they are followed. In following precedents we follow customs which in turn have been a general practice or conduct of the people for a long time, and not only the opinion of a judge.
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AIR 1951 SC 458 AIR 1980 SC 1789

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5) Laws contained in the case laws are certain and simple. They bring certainty in law. 6) Precedents give rise to practical and perfect laws because they are the result of concrete actually happened problems. 7) Citing of precedent and case law helps the members of the Bar to substantiate their argument without waste of unnecessary time and energy. Much of the time of the Judges and advocates is saved in searching the relevant law from law books. 8) Benefits of doctrine of precedents include consistency, certainty and uniformity in the field of judicial decisions. Demerits: Despite the aforesaid advantages of judicial precedents, it has certain disadvantages which should be mentioned. They are: 1) Bentham has not recognized precedent as law because it lacks binding force of the State. Austin, however did not subscribe to this view because in his opinion Judges are the agents of the sovereign and therefore, the law pronounced by them is as good as the law promulgated by State. 2) It overlooks the fundamental rule of natural justice that law must be known before it is actually enforced. 3) According to Frederick Pollock, the law based on case-law is incomplete because the judges take into consideration only those facts which are involved in the cases before them. Thus the law so evolved is never complete and comprehensive. 4) At times erroneous decisions of superior courts create practical problems for the subordinate Judges as they are bound to follow these decisions howsoever wrong or defective. This adversely affects the growth and development of law in the right direction. 5) Major setback of precedent is that the development of law through case-law more or less depends upon chance. If there has been no litigation on an important legal issue, the court shall never have opportunity to create precedent on that point and no case-law would be available on that issue. 6) One practical difficulty which arises in judicial precedents is that what should be the test for determining the validity of law made by case law? Should it depend on the number of
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decisions in which it has been followed or the reputation of the judges who adapted these precedents in deciding the cases? There being uncertainty on this point, the reasonableness and validity of law made by judicial precedents always remains a debatable issue. CONCLUSION In the ultimate analysis it must be said that despite the aforesaid demerits, judicial precedent has been accepted as one of the important sources of law in most legal systems, particularly in U.K., U.S.A, Australia, India and Afro-Asian countries. Professor Dias and Hughes while accepting the importance of precedents as a source of law, have however, warned that it should not be stretched too far.58 Dr. Allen has observed that though the importance of precedent is receding because of unprecedented growth of law reports even then it shall always remain an effective tool of shaping and developing law according to the needs of the changing society. It must also be stated that the importance of precedent varies with individual Judges. Although the Courts normally recognise precedent as binding, the Judges may occasionally depart from precedent when it appears right to do so. But they may distinguish between various precedents in evolving new law. Moreover, time and conditions change with changing society, and, every age should be the mistress of its law and era should not be hampered by outdated law. The doctrine of precedent is a unique feature of the Common Law system which treats the Judge as the creator, interpreter and modifier of laws. Since social conditions keep on changing with changes in society, law must keep pace with the changing norms. As Lord Denning rightly stated, precedent in the Common Law system serves as an instrument of evolution according to the changing needs of society and demands of justice. The English Judges through some of their historic judgements laid down new principles of law to meet to new social problems.

58

Dias & Hughes : Jurisprudence, (1957) p. 60

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BIBLIOGRAPHY Books referred to: 1) G.W. Paton, A textbook of jurisprudence, (4th edn. Oxford University Press, 1972) 2) Dr. N. V. Paranjape, Studies in Jurisprudence and Legal theory, (4th edn., Central Law Agency, 2004) 3) V.D. Mahajan, Jurisprudence and Legal Theory, (5th edn., Eastern Book Company, 1987) 4) Dr. B.N. Mani Tripathi, An Introduction to Jurisprudence (Legal Theory), (16th edn., Allahabad Law Agency, 2005) 5) Dr. Avtar Singh, Harpreet Kaur, Introduction to Jurisprudence, ( 2nd edn, Wadhwa & Company, Nagpur, 2006)

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