Sources of Law

Precedent
• AIR 1925 P.C.272.Kr. Mata
Prasad and another v. Kr.
Nageshar Sahai and others
• AIR 1943 Nagpur 340
(FB), D.D. Bilimoria,
Electric Contractor
v.Central Bank of India
Limited ... and AIR 1944
(FB), Vinayak shamrao Vs.
Moreshwar Ganesh Padhe
and others
• it was held that law laid
down by the Privy Council
was applicable with
binding force upon all
Courts in India
• it has been held that
binding nature of
precedent is an unwritten
role based on judicial
comity.
• AIR 1991 SC 101, Delhi • Precedents are one of
Transport Corpn. vs. DTC the sources of law. An
Mazdoor Congress and important limb of 'Rule
other of Law' is the even
• AIR 1988 SC 1325, All application of laws. By
India Reporter Karmachari following precedents this
Singh and others v. All object of 'Rule of Law' is
India Reporter Ltd. and also achieved.
others
• In AIR 1968 Alld. 100, • it is necessary to
Ram Manohar Lohia and maintain judicial
others v. State of U.P. uniformity and judicial
discipline. Precedents
maintain judicial
uniformity and judicial
discipline by which
disharmony in the
application of laws is
shell avoided.
• 1972 AC 1027, Caspel • In hierarchal system of
CO.Ltd. v. Broome Courts It is necessary for
each lower tier to accept
loyally the decision of the
higher tiers. It is inevitable in
hierarchal system of Courts
that there are decisions of
Supreme Appellate Tribunal
which do not attract the
unanimous approval of all
members of judiciary. But
judicial system only works if
some one is allowed to have
the last word, which once
spoken, is loyally accepted.
• In 1995 (3) SCC 17, Union • where
of India v. Kantilal
Hematram Pandya
the Central
Administration Tribunal
noticed the decision of the
Supreme Court, but
without indicating any
distinguishing features on
facts of the case before it
failed to follow the same,
the approach of the
Tribunal did not receive
the approval of the Court.
• AIR 1962 SC 1893, M/s • The Supreme Court, on
East India commercial Co.
Ltd. V.collector of
Customs, Calcutta
consideration of Articles
215, 226 and 227 of the
Constitution of India came
to the conclusion that the
cumulative effect of the
above noted provisions of
the Constitution is that the
decisions of the High
Court have binding effect
upon the subordinate
judiciary and the tribunals.
• AIR 1953 Allahabad 378, • that a decisions is a
Sitla Baksh Singh v. Kr. precedent if it decides a
Surendra Bikram Singh, question of law.
and it has been observed
in AIR 19923 SC 195,
State of Punjab and
others v. Surinder Kumar
and others
• (1992) 4 SCC 363, • it has been observed that it
Commissioner of Income has to be ascertained as to
Tax v. Sun Engineering what principle has been
Works (P) Ltd., laid down in the judgment,
• AIR 1990 SC 334, in context with the
Supreme Court Employees question involved and stray
Welfare Association v. sentences and words do
Union of India and others not constitute a precedent.
• It is necessary to find out
the principle enunciated in
the case of the ratio
decidendi which actually
binds
• Sukhwant Singh v. State of
Punjab, 1995 (3) SCC 367
• A point of law which
• 1991 AWC 134, Firangi
Singh and others v.
AssistantDirector of
Consolidation and others.
• Judgment of the Supreme
Court should not be read
in isolation and divorced
from the context in which
they are made.
already stands decided by
the Supreme Court must
be accepted and that
question should not be
looked into again by the
High Court.
• AIR 1974 S.C. 1596,
Muttulal v.Radhe's Lal,
AIR '1976 SC 2433, Union
of India and another v,K.S.
Subramanian, (1995) 1
SCC 58, Commissioner
Sales Tax J & K and Ors. v.
Pine Chemicals Ltd. &
others.
• As general rule a decision
of Bench consisting of
larger number of Judges
prevails over the decision
rendered by a Bench of
lesser number of Judges.
Even in a case where there
may be a later decision but
a decision rendered earlier
on the point by a Bench
consisting larger number
of Judges have the binding
effect.
• AIR 1961 Calcutta 545,
Pramatha Nath Mitter and other
v. Hon'ble the Chief Justice of
the High Court at Calcutta, and
AIR 1968 Calcutta 174, Mis
Sqvachand Mulchand v. The
Collector of Central Excise and
Land Customs and others, By
Mysore High Court in a
decision reported in AIR 196
Mysore 3, M/s New Krishna
Bhawan v. Commercial Tax
Officer, and AIR 1981
Karnataka 92 (FB),
• The difficult however, is often
faced by the Courts when two
decisions of the Benches of the
higher court consisting of co-
equal number of Judges are
cited on one point and the two
decisions cannot be reconciled.
The view which is coming down
since long has been that the
later decision will have the
binding effect as it would be
taken that the earlier view
stands impliedly over-ruled by
the later decision.
• Govindanaik G.Kalaghatigi v.
West Patent Press Co. Ltd. And
another; by Bombay High Court
in AIR 1980 Bombay 341,
Vasant Tatobi Hargude and
others v. Dikkaya Muttaya
Pujari, and by Allahabad High
Court if AIR 1977 Allahabad 1
(FB) U.P. State Road Transport
Corporation v. The State
Transport Appellate (Tribunal)
U.P., Lucknow and others, and
AIR 1981 Allahabad 300(FB),
Gopal Krishna Indley v. Vth
Addl. District Judge, Kanpur
and others.
• But there seems to be a drift in
the view that the later decision
will have binding effect. The
view which is being now taken
is that a decision which is better
on point of law should be
preferred. The rationale behind
the later view is that fortuitous
chance of point of time has no
relevance and it should not be
the deciding factor as to which
case should be followed.
• The Punjab and Haryana • the Court which is faced
High Court in AIR 1981 with two contrary views
P&H 213(FB), Indo on one point decided by
Swiss Time Ltd. v. Benches of co-equal
Umrao number of Judges, must
find out, which of the
two views, is better or
more accurate on point
of law and that should
be followed
• State of U.P. and another v.
Synthetics and Chemicals Ltd.
and another, AIR 1962 SC 83,
Jaisri Sahu v. Rajdewan Dubey
and others, AIR 1967 SC 1480,
B.Shama Rao v. Union Territory
of Pondichery, and AIR 1975
SC 907, Mamleshwar Prasad
and another v. Kanahiya Lal.
• A decision rendered ignoring a
provision of law, say e.g., a later
amendment by which certain
provisions may have been
deleted or added but the same
having not been noticed would
be one of such cases where the
judgment is rendered
'perincurium'.The literal
meaning of the word 'incuria' is
carelessness and where what Is
quotable in law is avoided and
ignored and the Judgement is
rendered 'in ignoratium' of a
statute, it is then said the
judgment is 'per incurium'.
• (1989) (1) S.C.C.101 • Similarly, when an
Municipal Corporation important or relevant
Delhi V. Gurnam Kaur point of law involved, is
not perceived by the
court or is not present in
its mind while deciding
the matter, it is said that
the decision 'sub silentio'.
• (1981) 2 S.C.C. 362. • though the rule was
Waman Rao others v. enunciated in England
Union of India where Common Law
prevailed in absence of a
Code but it was considered
to be a wise rule to
conform to a certain
measure of discipline so
that decisions of long
standing are not over-ruled
for the reason that another
view of the matter is being
taken.
• AIR 1959 SC 814, The
Commissioner of Income Tax,
• It has been observed
Hyderabad, Deccan v. Mls Vazir that judicial
Sultan and sons, AIR 1975 S.C.
1087, Municipal Committee, uniformity and
Amritsar v. Hazara Singh, AIR judicial discipline
1969 Allahabad 304 (FB), Chobey
Sunder Lal v.Sonu alias Sonpal and require that courts
another, AIR 1989 Delhi 193(FB),
D.C.M. Limited v. Union of India
must also follow the
and others, AIR 1960 Allahabad obiter dicta of the
672, Union of India v. Firm Ram
Gopal Hukum Chand and others, Supreme Court.
and AIR 1967 Rajas than 1, Radha
Kishan v. State of Rajasthan and
others
CIRCUMSTANCES DESTROYING OR WEAKENING
THE BINDING FORCE OF PRECEDENTS.
• ABROGATED DECISIONS
• IGNORANCE OF STATUTE
• SUB SILENTIO
• DISTINGUISHING
• OVERRULING
• REVERSING
• CONCESSION
• CONSENT
• NON SPEAKING ORDER
• SPECIFIC EXCLUSION
• ON FACTS
 Doctrine of Stare Decisis
Stare decisis et non quieta movere

Isolated cases
Two Extremes
to be avoided
Obiter Dicta
Overruled
Decision
Illustration and
manifestly
Argument
Erroneous
 Doctrine of Stare Decisis
• The doctrine of stare
decisis is expressed in the
• Waman Rao v. Union maxim "stare decisis et non
quieta movere", which
of India, (1981) 2 means "to stand by
SCC 362 at pg. 392 decisions and not to disturb
what is settled." Lord Coke
aptly described this in his
classic English version as
"those things which have
been so often adjudged
ought to rest in peace." The
underlying logic of this
doctrine is to maintain
consistency and avoid
uncertainty. The guiding
philosophy is that a view
which has held the field for a
long time should not be
disturbed only because
another view is possible
 • it was opined that the doctrine
• Manganese Ore of stare decisis is a very
valuable principle of
(India) Ltd. v. precedent which cannot be
departed from unless there are
Regional Asstt. extraordinary or special
reasons to do
CST, (1976) 4 SCC • the law declared by this Court
should be certain, clear and
124, at page 127 consistent. It is commonly
known that most decisions of
the courts are of significance
not merely because they
constitute an adjudication on
• Union of India v. the rights of the parties and
resolve the dispute between
Raghubir Singh, them, but also because in
doing so they embody a
(1989) 2 SCC 754, declaration of law operating as
a binding principle in future
at page 766 cases. In this latter aspect lies
their particular value in
developing the jurisprudence
of the law
• Union of India & • It is true that a bench
of two members must
Anr. v. Paras not lightly disregard
Laminates (P) Ltd, the decision of another
(1990) 4 SCC 453 bench of the same
at pg. 457 Tribunal on an identical
question. This is
particularly true when
the earlier decision is
rendered by a larger
bench. The rationale of
this rule is the need for
continuity, certainty
and predictability in
the administration of
justice.
• Hari Singh v. State • It is true that in the system
of justice which is being
of Haryana, (1993) administered by the
3 SCC 114, at page courts, one of the basic
120 principles which has to be
kept in view, is that courts
of coordinate jurisdiction,
should have consistent
opinions in respect of an
identical set of facts or on
a question of law. If courts
express different opinions
on the identical sets of
facts or question of law
while exercising the same
jurisdiction, then instead
of achieving harmony in
the judicial system, it will
lead to judicial anarchy.”
 Ratio- decidendi
• Krishena Kumar & another • The ratio decidendi has to be
v. Union of India & Others ascertained by an analysis of
AIR 1990 SC 1782 the facts of the case and the
process of reasoning
involving the major premise
• State of Orissa v. consisting of a pre-existing
Sudhanshu Shekhar rule of law, either statutory or
Mishra, AIR 1968 SC 647. judge-made, and a minor
premise consisting of the
material facts of the case
under immediate
consideration.
• A decision is only an
authority for what it actually
decides. What is of the
essence in a decision is its
ratio
• Dalveer Singh v. State of
Punjab, 1979 3 SCC 745.
• Fazlunbi v. K. Khader Vali • Precedents of the Supreme
& Another, AIR 1980 SC
1730.
• Even where the direct facts of
an earlier case appear to be
identical to those of the case
before the Court, the Judge is
not bound to draw the same
inference as drawn in the
earlier case.
Court are not to be left on the
shelves. Neither could they be
brushed aside saying that
precedents is an authority
only “on its actual
facts”. Such devices are not
permissible for the High Court
when decisions of the
Supreme Court are cited
before them not merely
because of the jurisprudence
of precedents, but because of
the imperatives of Article 141.