PRECEDENT AS A SOURCE OF LAW

THIS ARTICLE WAS WRITTEN BY SHUBHANGI AGRAWAL, A STUDENT OF HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

There are many sources of law. To a common man law is nothing but a set of rules and regulation which we human beings form to live peacefully in a society an individual living in a society have several sets of rights which is given to him or her, while enjoying one’s right if it harms the other people right there comes the rule of law in action. The right to enjoy ones right ends when it harms the other person’s right.

There are many sources of law one of the most famous is legislations which is law making. Another primary source of law is the customs, that is what we inherited from generation to generation being followed commonly in the society. Talking about the judicial source the law which is formed by the judges while deciding any case is known as precedent.

Article 141 of the constitution of India states about the precedent.

Article 141 in the Indian constitution states Law declared by Supreme Court to be binding on all courts the law declared by the Supreme Court shall be binding on all courts within the territory of India.[1]

According to black’s law dictionary:

Rule of law established for the first time by a court for a particular type of case and there after referred to deciding similar cases.[2]

Precedent forms the primary source of law these days due to the growing strength of the judiciary and improving formulation of law and the changing society this type of law formation helps to find suitable law according to the situation. The whole law created by these judicial proceedings form the law which later binds the courts.

Precedent can be defined as a binding rule that has been stated and acted upon by judges in individual decisions.[3]

A precedent is a principal or a rule set by a previous legal case. Precedent is applicable on the courts, tribunals or adversaries when similar case with similar facts needs to be decided. The binding nature of precedent is derived from the general maxim that like cases should be decided alike.[4] And after the application of these rules bring the consistency and the decisions made by the court so that the public can refer to this and predict the outcome whether an individual’s act will fall in the boundaries of that or not.

History of Precedent-

If we trace back the history of precedent and the source from which it came, we can relate to the realistic school.

Realistic school studies the law in action that is law which is made by judges or judgement. analytical school focuses on state, historical school focuses on society, sociological school focuses on inner consciousness and realistic school focuses on judgement of judges and also considered the human factor due to which that particular judgement has come out.

John Gray one of the scholars of the realistic school said that law which is made by the judges has included political factors economic factors and personal qualities in it.

Oliver Holmes is, in a sense, an exponent of the realist school. “Law is what the courts do; it is not merely what the courts say.” Emphasis is on action. As Holmes would have it, “The life of the law has not been logic; it has been experienced.”

According to Keeton:

A judicial precedent is judicial to which authority has in some measure been attached.[5]

The constitution of India has taken many of its parts from the England laws, if we take into consideration the position of precedents on England the first case which we recognise will be

Attorney General V. Dean of Windsor (1860)

In this case it was held that if one case was decided by the house of lords it was binding to apex court and also was not supposed to be changed and any case relating to the similar fact must be dealt with this precedent only and does not require any type of different thinking other than what was decided by the house of lords in the very first place.

This was the older position created and was followed for many years until another case

Boys v Chaplin [1971] [6] In this case the earlier position was altered and the new position which is now in juice came into existence. It was decided in this case that their lordships never the less realise that the strict adherence to precedents may lead to injustice in a particular case and also unduly restrictions can restrict the development of law. They therefore proposed to modify their present practice, while treating former decisions of their houses normally binding to depart from previous decisions when it appears right to do so.

Considering the Indian position in the case of Dwarkadas Shrinivas Of Bombay vs The Sholapur Spinning & Weaving[7] In this case justice Das brought the concept that supreme court is not bound by its own decisions if the decision appears to be obviously enormous and it can deviate as and when required from its earlier decisions.

Bengal Immunity company vs State of Bihar[8] This was the first time when in the Indian court a certain case was overruled the case of State of Bombay Vs United Motors limited[9] was overruled in this case and it was observed that there is nothing in the constitution which prevents the supreme court from departing from its previous decisions

Types of judicial decision

There are basically two types of judicial decision one which is applied to whole new set of facts and forms new law and other is when already known law is applied to a given facts and case and is settled accordingly. Both of these can be taken in as a precedent later foe deciding a certain case.

Original precedents the law which is formed after applying a new idea giving rise a new and fresh perspective thus forming a new law. These might be few in number but are very important as they are the one which give a new law to the system.

Declaratory precedents are the laws which are already in presence and is applied and settled which does not give rise to a new law. These are generally several times referred as this are already present laws.

The original and declaratory precedents have various views depending from one to another jurist.

If we quote jurist like Austin and Friedman, they consider judges as law makers. They consider some precedents as origin as they might present some new laws. While jurist like Blackstone do not support the presence of original precedents and believes that only declaratory precedents are there as there are already laws mentioned and judge only discovers the beforementioned laws and apply them to the given set of facts.

Another classification of precedent can be seen as Authoritative and Persuasive precedents.

Authoritative precedent says that any law implied or stated by the court. In this judge is bound to follow a decision if they agree with that or not. Taking into example if supreme court or the apex court of India declare something the state courts are bound to follow it whether or not they agree with the same or not.

Bifurcating more the authoritative precedent can be more classified in conditional and absolute authoritative precedent.

An absolutely authoritative precedent is a precedent that is unconditionally bound to be followed how much you are agree or disagree doesn’t makes any difference this type of precedent need to be followed without any question however unreasonable it may seem to be.

A conditional authoritative precedent is another type of authoritative precedent which gives us a liberty to choose or to reject in some limited circumstances this type of precedent is normally binding on a judge and does not put unreasonable pressure to follow it in any circumstances. The decision can also be overturned in this type of precedent.

Persuasive precedent is one of the types of the precedent which puts judge under no obligation to follow it. Here the decision-making power of the judge comes into play. Judges play a very important role in this type of decision where they can choose whether they want to follow the precedent or does not want to follow it, if they are not convinced with the earlier decided judgement, they might refuse to follow it. But not putting an obligation does not means persuasive precedents do not have any importance they surely put an influence on the decision made by certain judge on certain matter. For example, if we take some case decided in the Delhi High court it will have only persuasive value in other high courts of our country that is it will not create any obligation to follow certain pattern of the judgement but it will surely play some importance while making the decision of the similar facts of the case.

Hierarchy of courts

For clear and transparent working of the doctrine of precedent it is very important to know about the hierarchy of courts working. As the basic rule of doctrine of precedent is that a court is bound by the decisions made by the superior court also stated in article 141 of the Indian Constitution. A superior court works for the lower or subordinate courts.

Let’s take an example of our country India the most superior court is our Apex court that is supreme court of India that hears all the civil and constitutional matters after that there are high courts at state level under which there are civil and criminal courts.

To take a series of precedents how the position of a law is changed from one case to another:

Shankari Prasad Singh Deo v. Union of India[10]  It was held that article 368 of Indian constitution is very general in nature and hence it provides power to the parliament of India to amend the constitution without any exception that it can amend any part of the constitution.

Later in Sajjan Singh vs State of Rajasthan[11] the same decision was followed from the above case this doesn’t change the position of law in our country and similar decision was taken that parliament can amend any part of the constitution.

In Golaknath v. State of Punjab[12] in this case the law fixed in above two cases was overruled and it was said that the parliament cannot amend the fundamental rights given in the constitution.

In this case also the doctrine of prospective overruling came into existence which was adopted from American law by Justice Subhash Rao this states that the law declared by the courts is applicable to future only and earlier decided case will be saved because this would cause dissatisfaction to those who believed earlier cases to be good. This was earlier applicable to only constitutional cases but now in the present scenario it is also applicable to the statute related cases.

Finally, in the case of Kesavananda Bharati vs State of Kerala And Anr again the above case was overruled and the basic structure doctrine came into existence now which is the current law.

With the doctrine of precedent, the doctrine of stare decisis also comes. Stare Decisis et non quieta movere or stare decisis is a Latin phrase means that “to stand by things decided and not to disturb the settled points” it is a judicial doctrine under which the court has to follow the principles and standards of its prior decision or decisions of higher courts while deciding a case of similar facts. Many times, in the legal profession judges interpret the meaning of a law that is already decided in same line so that the continuity of the law is not disturbed. If any judge has a descending or varying opinion in different matters and different courts having similar facts this would lead to making Chaos and many parties will feel that their rights have been infringed in one or the other courts and would not be happy because of which justice would not be served to them.

This rule has an importance and requirement as a court must follow it superior courts decisions and verdict as in the legal field there is no particular choice that is correct or that is incorrect the rule of stare decisis provide a determination and discretionary power to be distributed and not clubbed in the hands of one person, in its nature to broaden and open the choices that a law provides and makes the judgement in a predictable and non-chaotic manner.

A judgement or a decision have basically two parts ratio decidendi and obiter dicta

Ratio decidendi is taken from a Latin word which means reason for decision it includes the reason the rule of law and what was the actual basis for the decision that is being formulated. This principle is also applicable to all the future judgement that composed similar facts and is also binding to all its lower courts of the country

Obiter dicta these statements by the way that means the remarks given by a judge with does not form a necessary part of a course decision. Obiter dicta is a Latin term which means things said by judge. Obiter dicta includes the ideas, examples, statements, observations and all the other things that made the judge to come into certain decision.

To understand all these two theories of precedents are

Declaratory Theory that was given by Sir Matthew Hale in 1713

In civil law countries decision of justice cannot be profound as law. They are just to declare and publish what the law is. King queen or parliament has the real authority to make the law. This was given by sir Matthew Hale in his book the History of Common Law of England

“jus dicere et non jus dare” which means that Just to discover and not to make the law.

Judges are the law finders and not lawmakers according to this theory.

Lawmakers Theory

This was given by A.V. Dicey that stated that judges are the real makers of the law as they made practical and real laws.

To conclude all this the rule of precedent is very important in the changing aspect of society to build a strong base of law and also to provide justice.

[1] INDIA CONST. art. 141.

[2] Definitions for precedent, DEFINITIONS AND TRANSLATIONS (November 26, 18), https://www.definitions.net/definition/precedent

[3] James J. Eisenhower II., Four Theories of Precedent and Its Role in Judicial Decisions, 61 TEMPLE L. REV. 871 (1988).

[4] H.L.A. HART, The Concept of Law 121 (1961).

[5] Neerja Gurgani, Precedents as a source of law, LAWCTOPUS, https://www.lawctopus.com/academike/precedents-as-a-source-of-law/

[6] AC 356, 2 All ER 1085

[7] 1954 AIR 119, 1954 SCR 674

[8] AIR 1953 Pat 87, 1953 (1) BLJR 48

[9] 1953 AIR 252, 1953 SCR 1069

[10]  1951 AIR 458, 1952 SCR 89

[11] 1965 AIR 845, 1965 SCR (1) 933

[12] 1967 AIR 1643, 1967 SCR (2) 762