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Sources of Law
JUDICIAL PRECEDENTS[1]
QUESTION BANK
Q.1 State the essential of valid Precedent.
Q.2 What do you understand by custom? What are the essential requisite of a valid Precedent?.
Q.3 “What Precedent is to society law is to State”, comment.
SHORT NOTES
- Judicial Precedent.
I. Introduction to Precedent-
Judicial precedent or 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.
Precedent has a binding force on courts to decide like the case in a similar manner. It brings uniformity and equality to the legal system; before the legislature, as a sovereign body emerged in recent times, it was the judiciary which used to define laws and apply them in the administration of justice. Therefore, it is being said that English law is mostly Judge made. Most of the common law countries owe the origin of their laws to English Common Law, i.e. Judge Made Law. The Law of Judicial Precedent was also known as early Roman Law. Precedent as a source of law developed after custom.
II Meaning-
Ordinarily, a ‘precedent’ means a ‘previous instance or case which may be taken as an example or rule for subsequent case having similar facts’.
1) According to Salmond-
According to Salmond doctrine of precedent is used in two senses-
First, in its broad sense, ‘precedent’ is “a decision of any court cited as authority for deciding similar facts on that principle”[2].
Thus, according to this sense, any past judgment of any court. Whether it is higher, lower, Indian or foreign court can be cited in the present case having some analogy or similar facts as a precedent. Secondly, in its narrow sense, precedent means that case law (probably of higher courts) which not only has a great binding authority but must also be followed.
2) According to Keeton-
“A judicial precedent is a judicial decision to which authority has, in some measure, been attached”.
In short, precedent is guidance or authority of past decisions for future cases[3].
III. Importance of Precedent-
Precedent has a prominent place in legal practice; it is because of the following reasons.
1) Keeps uniformity in the legal system-
Being binding on a subordinate judiciary, the doctrine of precedent keeps uniformity in the legal system. It curtails the discretion of judges to decide cases at their whim. The precedent sets a legal position as to a particular point of law, which all courts need to follow.
2) Provides useful guidance-
The precedent, is based on vast experience, maturity and diligence (specifically of the higher judiciary), guides the subordinate judiciary on a particular point of law.
3) Saves labour and time of judges and advocates-
The precedent being refined and settled legal position saves labour and time of judges and Advocates in searching for correct legal possession on a particular point of law.
4) Shapes laws to fit ground realities-
Precedent shapes law enacted by legislatures to the actual realities of practice. Legislatures may make laws in Houses, whereas judges apply them in practice. Therefore, precedent shapes law according to ground reality and problems which the legislature may not experience. (Keshavanand Bharti’s[4] case brought the doctrine of ‘basic structure’ into practice)
5) Provides flexibility-
To fit actual problems in implementing laws in practice, precedent moulds laws (made by the legislature). Moreover, precedent can also be changed by the higher judiciary; therefore, it provides flexibility in the judicial system, e.g. case of Manika Gandhi changed the trend set by A.K. Gopalan’s Case.
6) Clear legal point is made known in advance-
Precedent settles legal position crystal clear on particular law point (involved in that case). Therefore, in advance, it provides knowledge to Advocates and parties as to what is correct legal possession in subsequent cases on similar points or facts. Thus, precedent makes known the exact legal position in advance.
7) Easy to understand-
Being related to and involved in facts, precedent is easy to understand by reading cases.
8) Precedent is perfect law-
Compared to the law made by the legislature, judge-made precedent is crystallized and perfect.
9) Older source of law-
The practice of judge-made law of precedent is older than legislation which is of recent origin.
The advantages of precedent are the binding force of the doctrine of precedent.
IV Disadvantages of precedent-
1) Practically difficult –
High Courts and Supreme Court daily pronounce a number of judgments, and they are reported by a number of reporters; therefore, it becomes very difficult to find out the exact case law applicable to the case at hand.
2) Lacks binding force of State-
According to Bentham, precedent is not law because it lacks the binding force of the State. However, according to Austin, ‘Judges are agents of sovereignty; therefore, the law pronounced by them is good law’.
In fact, in India “Judiciary” gets recognition from the sovereign constitution. Therefore, undoubtedly, Judiciary is a sovereign wing, and the rule of precedent has got recognition in Art. 141, therefore, has a binding force.
3) Incomplete-
According to Sir Fredric Pollock, the law based on the case law is incomplete because it is pronounced only on particular facts and points of law involved in that case.
4) Overlooks rule of natural justice-
Some jurists like Bentham object that the law of precedent overlooks the rule of natural justice. i.e. law must be known before it is actually enforced. However, precedent comes into existence after the problem comes before a court.
5) Conflicting Judgments-
In a number of cases, we find conflicting judgments of higher courts. In such circumstances, it becomes very difficult to follow any particular judgment as a precedent. Specifically, in criminal matters, one can find a number of conflicting judgments of higher courts.
6) No standard to determine the validity of precedent-
There exists no standard to determine the validity of law made by case law.
7) Erroneous decisions create practical problems –
Erroneous decisions create practical problems for the subordinate judiciary because howsoever bad such judgment may be, the lower judiciary has to follow it.
8) Position of Doctrine of Precedent-
Precedent in England-
The doctrine of precedent is well-settled in England. The common law of England is an outcome of judicial precedent. By the doctrine of precedent, the inferior courts are bound by the decisions of superior courts.
House of Lords is the highest court in England. As a precedent, the decisions of the House of Lords are binding on all courts in England. Moreover, its decisions were binding on itself. Therefore, even the House of Lords was bound by its own decisions.
However, in Boys V. Chaplin,[5] the trend changed, and now the House of Lords is held not to be binding by its own decisions.
Below the House of Lords, there are ‘The Court of Appeal’ and ‘The Court of Criminal Appeal’. Both these courts are bounded by the decisions of the House of Lords and by their own decisions. But their decisions are not binding on each other because both these Appellate Courts are of co-ordinate jurisdiction.
Below courts of appeal, there are High courts; High courts are bound by the decisions of the Hose of Lords, both courts of appeal and by their own decisions.
Rule of Precedent in India-
The rule of precedent was first time recognised in India by S. 212 of the Government of India Act 1935. By virtue of this section law declared (judgment) by the Federal Court and Privy Council was binding on all courts in British India. The position continued till coming into force of the Indian Constitution in 1950. The hierarchy of courts and Doctrine of Precedent is set out in the Indian Constitution.
The constitution sets out the hierarchy of the Indian Courts; at the apex level, there is a Supreme Court which sits in Delhi; below it, there is a number of High Courts situated in the respective States of India; below the High courts, there are District and Session Courts, below it, there are Magistrates (for the trial of criminal matters) and Civil Courts or Munsif’s Courts (to try civil cases).
Supreme Court of India-
Art. 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India
Thus, the law declared (Judgments delivered) by the Supreme Court is binding on all courts within India. In Dworkadas V. Solapure Spinning and Weaving company,[6] Supreme Court expressed its view for the first time that if the previous decision of the Supreme Court appears erroneous, then it can reverse its own decision. The view was further strengthened in a number of subsequent cases, i.e. In Bengal Immunity Company Vs the State of Bihar[7] and in the State of Bombay Vs. The United Motors Ltd. It was after the Sajjan Singh v State of Rajasthan[8] the trend was well settled that the Supreme Court is no more bound by its own decisions. Chief Justice Gajendragadker observed that there is no restriction in the constitution which restricts Supreme Court from reviewing its earlier decisions.
In Keshavananda Bharti v. State of Kerala[9] Supreme Court overruled its earlier cases and set a new trend in the ‘basic structure doctrine.
Thus, it is now well-settled that the Supreme Court is not bound by its own decisions.
High Courts-
High Courts are bound by the decisions of the Supreme Court. Similarly, the decisions of the High Courts are binding on all the courts below it within its jurisdiction, i.e. the decision of the High Court of Bombay is binding on all the courts below it in Maharashtra. Similarly, decisions of the High Court of Bangalore are binding on all courts in the state of Karnataka. The judgment of one High Court is not binding on the other High Court because both these courts are of co-ordinate jurisdiction. Thus, the decision of one High Court though not binding on the other High Court nevertheless has a persuasive value. But if such a decision of another High Court is in conflict with the decision of the parent High Court, then the decision has no value. But when judgments of the superior courts are of co-equal Benches and therefore of matching authority, then their weight must be considered rationally and logically.
High Courts are not bound by their own decisions. However, the decision of the full-bench is binding on the Division- Bench and the DivisionBenches’ decision on that of the Smallest Bench. A single judge’s bench is called as ‘Smallest Bench’. A Bench of two judges is called the “Division Bench”, and the Bench of three and more judges constitutes the ‘Full Bench’. Therefore, the decision to use a larger Bench is binding on a smaller bench. The decision of a bench is binding on a smaller or co-ordinate Bench, however wrong the judgment may be. One bench of the same High Court cannot take a view contrary to the decision given earlier by another co-ordinate bench of the same High Court. However, if such a single or division Bench does not agree with the earlier decision of a co-ordinate Bench, then it must place the matter before the Chief Justice of that High Court to refer the matter to a larger Bench. Then, the Chief Justice will refer the matter to a larger Bench.
The binding force of the decisions of the Federal Courts[10] and of the Privy Council[11]:-
In British India, instead of today’s Supreme Court, there was Federal Court. The decisions of the Federal Court are still binding on the High Courts in India, provided their decisions should not be contrary to the decisions of the ‘Supreme Court’[12].
Similar is the position of the Privy Council’s decisions. Privy Council was the highest court of appeal, which used to hear appeals from British-ruled countries. The decisions of the Privy Council are also binding on High Courts in India, provided that they should not be contrary to the decisions of the Supreme Court[13].
Thus, in short, by the rule of precedent, the decision of the Supreme Court is binding on all courts in India. Similarly, all District Courts, Magistrate’s Courts and Munsif’s courts are bound by the decision of the High Court within its jurisdiction. Moreover, magistrates and Munsif’s courts are bound by the decisions of the District court’s decisions within their jurisdiction.
VI) Ratio decidendi and obiter dicta-
Ratio Decidendi-
The literal meaning of the term ‘ratio decidendi’ is ‘reason of decision’. ‘Ratio decidendi[14]’ is the rule of law upon which the decision is founded. Ratio decidendi is the rule of law applied by and acted upon by the court.
According to Rubert Cross, “ratio decidendi” is the rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion. Such a rule of law or ratio is implied by other courts in deciding cases before them based on similar facts. In Keshavananda Bharati Vs. Union Of India
Full Bench of the Supreme Court laid down the ratio that the “Basic structure of the Constitution cannot be destroyed by amendments in the constitution”. Thus, an amendment carried on in the Constitution by Parliament if it destroys any of the Basic structures is unconstitutional. in Mohari bibi Vs Dharamdas Ghosh
Court laid down the ratio that “contact by a minor is void-ab-into”.
In Donohou Vs Stevenson
The producer is liable for his negligence and therefore is liable for damage to the consumer.
In Maneka Gandhi Vs Union of India
Court laid down the ratio decidendi that-
1) The procedure of depriving a person’s liberty must be just.
2) That the term ‘law’ used in Art. 21 includes rules of natural justice also.
In an English Case, Bridges Vs Hawkes worth (1851)
Fact– A consumer had found some money on the floor of a shop. The shopkeeper applied for the money.
Court laid ratio– that finder is to keep the money. Thus, this ratio decidendi laid down by the superior courts for a long has a binding force.
All courts below must decide their cases based on similar facts according to the ratio decidendi laid down by the court. The rule of ‘ratio decided is also known as the doctrine of ‘stare decisis’.
In Pradipta Padha v. Laxmi Kanta Maity (AIR 2015 (NOC) 1176 (Cal).
Calcutta H.C held that- the Doctrine of stare decisis is based on the legal maxim ‘Stare decisis et non-quota movere” which means ‘to stand by decision rather disturb what is settled’.
Obiter Dicta[15]–
The term ‘obiter dicta’ literally means ‘statements by the way’. In a number of cases, Judges express their legal opinions on issues which they are not asked to decide; or which are not involved in the disputed cases at hand. These statements of law, expressed by the Judges, which are not necessary to decide the dispute in hand, are called ‘obiter dicta’. These are the statements made by way of deciding the matter at hand.
In Duncan Vs Commell, Laird and Co[16].
The point in issue before the court was related to public ‘Security’. However, Judges laid down rules relating to the secrecy of Governmental documents. These rules of secrecy are obiter.
In England, obiter dicta have no binding effect on either co-ordinate or subordinate courts; however, it has persuasive value. However, in the Indian obiter dicta of the Supreme Court is binding on all subordinate courts[17]. Even dissenting judgment is held to be of high respect if there is no direct decision contrary to it[18]. Thus, dissenting judgment of Justice Fazal Ali in A.K. Gopalan’s Case[19] was accepted in Maneka Gandhi’s case. In A. K. Gopalan’s case, Justice Fazal Ali’s judgment was dissenting and upholding all the points raised by A.K. Gopalan; however, the majority judgment (five judges out of six) was in favour of the State rejecting liberty. However, in Maneka Gandhi’s case, a number of points from justice Fazal Ali’s judgment was again argued and upheld by the majority, which became a landmark and broadened the scope of Art. 21.
Circumstances weakening or destroying the binding force of precedent-
Following are the circumstances which destroy the binding force of precedent.
1) Overruling[20]–
If the decision is overruled, it destroys earlier precedent, e.g. Ratio laid down in A.K. Gopalan’s case is destroyed by Maneka Gandhi’s case.
2) Legislation-
If legislation is passed against the settled precedent, the precedent loses its binding force, e.g. in Shahabano’s case[21] Supreme Court held that Muslim woman has the right to get maintenance as other women u/s. 125 of Cr. P. C. till her death or re-marriage.
However, to nullify the effect of this precedent, Parliament passed the Muslim Women (Protection of Rights on Divorce) Act. 1986. By the Act, the right of Muslim women to get maintenance was restricted to three months, i.e. iddat period.
3) Decision in ignorance of Statute-
If any judgment is given in ignorance of statute (i.e. “per in curim”), it is not binding.
4) Decision of High Court inconsistent with Supreme Court –
If the decision of the lower court if inconsistent with the higher court loses its bindingness. Similarly, conflicting judgments lose their binding force.
5) When Judges are equally divided-
When judges of the appellant court are equally divided, then the judgment of the lower court from which the appeal is made prevails, and the rule of precedent of that judgment loses its value.
6) Erroneous decisions-
The decisions founded on misconceived principles or in conflict with the fundamental principles of law lose their binding force.
8) Affirmation or reversal on a different grand-
When a higher court either affirms or reverses the judgment of the lower court on a ground different from those on which the judgment rests, such decisions lose their value.
VII) Theories of Precedent –
There are the following theories of precedent-
1) The Declaratory theory of Precedent-
Coke, Hale, Blackstone, Carter, Harmod etc., are believers in declaratory theory. To this theory, Judges do not make law but merely declare it. According to this theory, Judges merely interpret already existing laws and do not lay down new principles of law.
According to this theory, precedent reshapes statutory law but does not add to it. It merely declares law.
If a subsequent decision changes earlier, it does not make law but only discovers the correct principle of law.
According to this theory, precedent, in fact, does not constitute a source of law. This theory further states that the law already exists; judges merely interpret, shape and declare the law.
2) Judges make law-
Bacon, Bentham, Austin, Dicey, Salmond etc., believe in this theory. According to this theory, judges make law through the rule of precedent. Believers of this theory admit that generally, judges apply existing law, but many times judges modify, extend and create an entirely new principle (i.e. law). This theory states that through new precedents, judges make new laws.
In a number of cases, it is found that judges of higher judiciary make new laws.
In Sammersett’s Case[22] –
Issue – whether slavery is to be allowed.
Lord Mansfield held – Slavery could not be allowed by law. In fact, there was no existing law that prohibited slavery.
In India, also we find a number of cases and writs wherein the higher judiciary has laid down new principles of law.
Conclusion
In conclusion, it may be said that the advantages of precedent outweigh the disadvantages, and it is accepted as one of the important sources of law in almost all legal systems, including the USA, UK, India etc.
In Keshavanand Bharti Vs the State of Kerala[23] Supreme Court decided against the legislature and held that Parliament can amend the constitution but cannot destroy the basic structure of the constitution.
Now, most of the part of the constitution is clothed with the ‘basic structure’ principle.
The judgment made a great impact on civilized societies around the globe. This doctrine is read for the protection of the constitution.
In Maneka Gandhi’s case, Supreme Court considered a number of factors and widened the scope of Art. 21. Similarly, in Vishaka’s Case Court laid down rules for the protection of working women from harassment of co-workers.
Thus, it shows that Judges do lay down laws and apply them in practice.
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[1] न्यायिक दाखला किंवा मागील न्यायालयीन निर्णयाचा उपयोग नंतरचा निर्णय देताना करण्यचे तत्व / न्यायालयीन पायंडा [निर्णय/न्यायिक प्रक्रिया पारित करने में न्यायिक रिकॉर्ड या पिछले न्यायिक निर्णय के उपयोग का सिद्धांत ]
[2] अधिकार असलेल्या उच्च अथवा सर्वाच्च न्यायानलयाचा निकाल इतर समान परिस्थिती असलेल्या कांदेषीर प्रकरणात दाखला म्हणुन वापरला जाण्याचा दंडक / नियम / कायदा [दांडिक/नियम/अधिनियम को अन्य समान रूप से स्थित कंदेशी मामलों में साक्ष्य के रूप में उपयोग किया जाना चाहिए जहां सक्षम उच्च या सर्वोच्च न्यायालय का निर्णय ]
[3] मागील अधिकार असलेल्या उच्च अथवा सर्वाच्च न्यायानलयाच्या निर्णयाचा आधार पुढील निर्णय देताना वापरनेचा पायंडा म्हणजंच न्यायालयीन पायंडा होय. [पिछले क्षेत्राधिकार वाले उच्च या सर्वोच्च न्यायालय के निर्णय के अनुसार ]
[4] Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461.
[5] 1968 AIR 273
[6] AIR 1954 SC 119
[7] AIR 1955 SC 661
[8] AIR 1956 SC 845
[9] AIR 1973 SC 1461
[10] संघराज्याचे सर्वाच्च न्ययालय [संघ का सर्वोच्च न्यायालय ]
[11] इंग्रजी शासना खालिल राष्ट्रमधुन इंग्लंड येथे केले जाना-या अपिलाबददलचे सर्वाच्च न्यायालय [अंग्रेजी शासन के तहत एक देश से इंग्लैंड के लिए अपील की सर्वोच्च अदालत ]
[12] Ss. 212 of the Government of Indian Act 1935 and Art. 225 of the Indian Constitution 1950.
[13] Art. 395 and Art. 225 of the Indian Constitution.
[14] निर्णयातील तत्व की जे इतर निर्णयात मार्गदर्षक किंवा बंधनकारक असते [निर्णय में एक सिद्धांत जो अन्य निर्णयों को निर्देशित या बाध्य करता है ]
[15] असंबध न्यायालयीन चर्चा की जे मार्गदर्षक असणे बंधनकारक नाही [अप्रासंगिक न्यायिक चर्चाएँ जो आवश्यक रूप से सांकेतिक नहीं हैं ]
[16] (1942) AC 624
[17] Mohandas Vs Saltanathun (1954) 56 Bom L.R. 1156
[18] Ashok Layland Vs The State of Madras AIR 1957 Mal. 263
[19] A.K. Gopalan’s Vs State of Madras AIR 1950 SC 27
[20] पहिलया निर्णयाचे तत्वाविरूध्द निर्णय देने.[ प्रथम निर्णय के सिद्धांतों के विपरीत निर्णय देना। ]
[21] AIR 1985 SC 945
[22] (1772) 20 State Tr. I
[23] (AIR 1973 SC. 1461)