- Kinds of precedent
- General rules relating to the doctrine
- Importance of precedents
- Merits of the doctrine
- Demerits of the doctrine
- Position in India
- Position in England
In almost all the legal systems, judges take guidance from the previous decisions on the point and rely upon them. Such decisions are published and compiled in Reports. These Reports are considered to be a valuable part of legal literature.
Such decisions are called ‘Judicial Precedents’ or ‘Precedents’ and it is a very important source of law.
- In 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”.
- Gray- “A precedent covers everything said or done, which furnishes a rule for subsequent practice”
3. Kinds of Precedent-
Precedents may be of two kinds broadly-
- Authoritative Precedent is the one which has a binding force and the judges must follow it whether he approves it or not. Authoritative precedents are the decisions of the superior courts of justice which are binding on subordinate courts. They are a source of law.
- Persuasive Precedent is the one which judges are under no obligation to follow but they may take into consideration. They guide the judge in deciding the case in light of what other judges had decided in similar circumstances.
- Persuasive precedents can be of any nature – decisions by horizontal courts or lower courts, foreign judgments, obiter dicta, dissenting judgment, treatises or law reviews.
- A court while deciding a case can look up to the decision of any of courts lower than it in the hierarchy and can apply the principles laid down in it if it thinks that it was correctly applied in that case.
- The judgement of horizontal courts i.e. courts of similar standing in hierarchy also has a persuasive value for other courts of same standing and so can be looked up and followed if the horizontal court considers the principals laid down in it to be correct.
- Foreign judgments are the judgments given by courts outside India. For example, courts in US or England are considered foreign judgments in India.
- The value of foreign judgments is because people around the globe can face similar circumstances and it can be helpful for the courts to see how on what principles courts in other countries would have decided in similar circumstances.
- Obiter dicta mean the things said otherwise. So when a court while deciding a case expresses its opinion which does not form a judgment for the case but is said just like that, it is obiter dicta i.e. dictum or opinion of such court about a matter.
- Obiter dicta of courts higher in the hierarchy are of persuasive value for the lower courts.
- Dissenting judgment is the opinion of some judge in a case which did not form the judgment of a case because of lack of majority. These are considered to be of high importance because it is an analysis of some learned judge in a matter even if it did not form judgment.
- Statements of authors of books, law reviews or provisions of treaties are given importance while deciding a case based on the credibility and qualification of the author.
4. General rules relating to the Doctrine of Precedent
- The doctrine of precedents follows three basic rules:
- That every court is bound by the judgments of the court above it in the hierarchy.
- That every court is bound by its own decisions.
- That a balance needs to be struck between consistency in the application of the law with the avoidance of undue restriction on development of law.
- Binding value of precedents is based on the principle of stare decisis i.e. to stand by things already decided.
- Binding value of judgments ensures the consistent application of law whereas persuasive value is helpful in avoiding any undue restriction on the development of law.
Binding and persuasive value of Supreme Court Judgement-
- The decisions of the Supreme Court are binding on prima facie binding on all the courts in India and also on Supreme Court itself.
- However, the Supreme Court judgment delivered by a bench of more than one judges is binding on the bench constituting less number of judges.
- So, judgment delivered by a bench of 13 judges, which is the largest bench constituted so far in the history of India in the landmark case of Kesavanand Bharti v. Union of India is binding on all other benches constituting 13 or less number of judges.
- Similarly, judgment of bench constituting 11 judges is binding on all benches constituting 11 or less number of judges and not binding on a bench of 13 judges and so on.
Binding and persuasive value of High Court Judgement
- The judgment of High Court is binding upon all district courts and other lower courts within its jurisdiction.
- High Court itself is not bound by its own decision unless the judgment is delivered by the divisional bench.
- The decision of one High Court is not binding upon the decision of another High Court. But one High Court does not have power to even overrule the judgment of another High Court. Only a court superior from one court can overrule the decision of court lower than it in the hierarchy.
- Division bench is not bound by the decision of single judge but it also does not have power to overrule the decision of single judge.
- But the decision of Division bench though not of binding nature but has persuasive value for the single judge.
- Decision of division bench of a High Court has almost obligatory value for single judges of same High Court.
Inductive and deductive methods of delivering judgments
Inductive method of delivering judgement is when the courts look up to previous decisions of other courts apart from legislations and analyses the approach of courts on case to case basis and thereafter considering all the aspects and circumstances it reaches on a judgement it is called inductive method.
Whereas when the courts are only concerned with application of already laid down laws in the present case, it is deductive method. It is basically based on codified laws rather than on precedents.
5. Importance of Precedents-
- Importance of precedent or previous decisions is recognised as a source of law since ancient times.
- Every developed legal system possesses a judicial system which has a main function of adjudication of the rights and duties of the citizens.
- Judges perform creative function. In the cases of first impression, in the matters of interpretation or in the case of any lacuna found in the law they depend on their senses as well as follow the precedents for the purpose of deciding the adjudication.
- Precedent plays a vital role almost in every legal system. Common law of English legal system mainly is based on judicial precedents. Decisions of International Court of justice are very important source of international law.
6. Merits of the Doctrine of Precedent-
- It shows respect for the opinion of one’s ancestors. Jurists have supported the doctrine on this ground as they say there must be some reasons behind the opinions. We may not understand that but must look into.
- Precedents are based on customs, therefore, they should be followed. In following precedents, we follow customs which have been a general practice of a long time not only the opinion of a judge.
- As a matter of convenience, it is necessary that a question once decided should be settled and not be subject of reargument in every case if ever arise in future. This way it will be time and energy saving for courts.
- A good law should always be certain. A precedent brings certainty in law by its binding force. If courts do not follow precedent and the judges start deciding issues every time afresh law would become most uncertain.
- Precedents bring flexibility in law. Judges in giving their decisions are influenced by society and prevailing conditions. They mould the law according to the changed conditions.
- Precedents are judge-made laws hence more practical than the theory based law.
- Precedents guide judges and consequently, they are prevented by committing errors. By deciding cases on the basis of precedents it takes a shape of principle and strengthensthe judiciary.
- As a matter of policy, decisions once made based on principles should not be departed from in the ordinary course.
7. Demerits of the Doctrine of Precedent-
- Precedents are published in law reports which are in a large number and its time consuming to search particular case from voluminous legal literature.
- Sometimes courts express a conflicting opinion on the same issue, their validity of precedent becomes doubtful and any decision based upon that may be erroneous.
- The law based on case laws is incomplete because judges focus and consider only the facts of a particular case. Thus it is never complete and comprehensive. In Sayrabano@ sultana begum v. State of Maharashtra[iii] Supreme Court ruled that criminal cases should be decided on facts and evidence rather than on case laws and precedents.
- It overlooks the fundamental rule of natural justice that law must be known before it is actually enforced.
- One of the greatest set back is that development of law through case laws more or less depends on chance. Sometimes important points may remain unadjudicated.
- If a decision of superior court is wrong and defective and subordinate court is bound to follow that this way it creates problem for subordinate court judges.
8. Position in India
- In India, decisions of the Supreme Court of India are binding on all courts and they are authoritative precedents.
- Supreme Court is not bound by its own decisions but respect precedent and adjudicates in a different manner.
- Art 141 of the constitution gives a constitutional status to the doctrine of precedent in respect of law declared by the Supreme Court of India.
- The decisions of High Courts are binding on all courts subordinate to them in their respective State limits.
- It must be stated that a precedent may be authoritative for one court but may be persuasive for another. For example, decision of one High Court may be binding to its subordinate courts in the same State but persuasive for other courts in different State.
9. Position in England
- In England, the House of Lords is the Highest Court in the hierarchy of courts. Therefore its decisions are absolutely binding on all courts but House of Lords is not bound by its own decisions.
- Most of the laws in England are based on precedents and the doctrine of stare decisis has been recognized of paramount importance there. So precedents are of great value in England.
Precedents are the judgments delivered by courts on reasons analyzed by it on a case to case basis.
The courts have always contributed to the great length in development of laws and their role in providing judgments that form the source of law is of great importance.
These are a recognized source of law and have their own merits and demerits. Even though precedents are what has helped in the development of Common Law but the principle of stare decisis has also sometimes led to some grave injustices.