Judicial Precedent as a Source of Law

Precedent as source of law

What is a Judicial Precedent?

Meaning of Judicial Precedent: – Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. In judicial precedent, similar cases have been decided in the past. Judicial precedents based on the principle of stare decisis are also a source of law as they offer a backbone or support to rely on, in cases with similar facts. Judicial judgment is therefore based on the ‘doctrine of stare decisis’, namely to “stand according to the decision already made”.

A Judicial precedent is a principle or a rule or judgement that was declared or laid down in a previous legal case. It is binding or advisory on tribunals and courts when a similar case with similar facts arises before it. These are nothing but previous legal decisions that have been taken by judges in similar cases in these courts that provide an outline as to what must be held in similar cases that arise before the court or similar cases that arise in lower courts or similar cases that arise before a lesser bench. A lesser bench is when the number of judges is lesser than those that decided the case that the new bench will be basing their decision on.

Judicial Precedent as a Source of Law

In the 18th century, the Government of India Act, 1935, held that decisions made in Federal courts and in the Privy Councils would be binding on the courts during the reign of the British. Since the 18th century, precedents have been a legal characteristic of the Indian legal system and have helped many judges form decisions and reverse decisions that later on were found to be arbitrary or mindless.

There is a term, called the doctrine of stare decisis, which states that the judgment of the court is an example to be followed in future cases of a similar nature. The reason a precedent is recognized is that the judiciary’s decision is considered correct. The use of precedent helps to gain confidence in the litigation judicial system. The administration of judicial decisions is just and fair.

What does Stare Decisis mean?

Meaning of Stare Decisis: – Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts be approached in the same way. Simply put, it binds courts to follow legal precedents set byprevious decisions.

Stare decisis is the legal principle which requires judges to abide by and respect the precedents laid down by similar prior decisions. The Latin maxim, Stare decisis et non quieta movere which means, “to stand by decisions and not disturb the undisturbed” forms the basis of this legal principle. In the legal context, judges interpret as meaning to not disturb already settled matters to allow for continuity. If varying judges gave their opinion in different matters in different courts, having similar facts would lead to chaos and many parties would feel like their rights have been infringed and they would feel helpless and like justice has not been served to them. This doctrine is basically a rule or a requirement that a Court must follow the rules established by a superior court.

Definition of Precedent by various Jurists

In general, the term precedent means, ‘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.’

  • According to Gray, ‘ precedent covers everything said or done, which furnishes a rule for subsequent practice.
  • According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure been attached.’
  • According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’ In a strict sense, that case law which not only has a great binding authority but must also be followed.
  • According to Bentham precedents are ‘Judge made Law.’
  • According to Austin precedents are ‘Judiciary’s Law.’

In general, 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. The application of such judicial decisions is governed by different principles in different legal systems. These principles are called ‘Doctrine of Precedent’. For this case to be held, first such precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the precedent under certain circumstances must be followed.

Thus it can be inferred that precedents are: –

  1. Guidance or authority of past decisions for future cases.
  2. Precedents must be reported, maybe cited and may probably be followed by courts.
  3. Precedents must have opinio-juris.
  4. These must be followed widely for a long time and must not violate any existing statue law.

What is the nature of precedents?

The nature of judicial precedents is that they must be purely constitutive and not abrogative at all. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same. They cannot substitute their opinions for the established rule of law. The function is limited to supplying the vacancies of the legal systems, filling up with new law the gaps that exist.

Two rules that apply to the principle of Judicial Precedent are as follows: –

  1. The first rule states that a court which is lower in a hierarchy is completely bound by the decisions of the top courts.
  2. The second rule states that high courts are generally bound by their judgments in cases relating to preceding cases.

Supreme Court

  1. The Supreme Court is the supreme authority and its decisions are binding on all other courts. Article 141 of the Constitution states that any law decided by the Supreme Court shall be binding on all courts of the country.
  2. Article 141 states that all courts are legally bound to the judicial decisions of the Supreme Court except for the Supreme Court itself. The Supreme Court is not bound by its own decisions.
  3. However, the Supreme Court’s past decisions cannot be changed, except on certain circumstances. If the earlier decision is found to be wrong, the Supreme Court can change it.

High Court

  1. The decisions of the High Court are binding on all subordinate courts. In case of conflict between two benches of the same authority, the later decision of the high court is followed.
  2. The higher the number of judges on a bench, the greater their authority.
  3. The decision of one High Court does not bind on other High Courts.

What are the types of Judicial Precedent?

Types of Judicial Precedent are as follows: –

  1. Declaratory and Original: – In declaratory precedents, the mere application of a rule in a previous legal case is used. A declaratory precedent is the application of an existing precedent in a particular case. A declaratory precedent involves declaring and putting into practice an existing law, so it does not help in making new laws. Original precedents result in the creation of new laws. Here new laws are created and applied. An example can be where we considered that the power to amend the constitution was not restricted till it was decided that limits must be placed on the same and that all laws in the Ninth Schedule henceforth must also be tested against the basic structure.
  1. Persuasive: – Persuasive Precedents include decisions taken by an inferior court that a High Court or any other court is not bound to follow. It is up to the court to consider it or not. The judge will rely heavily on this case and take it into consideration. It is not directly considered as a source of law but is seen as a form of historical precedents. This is usually seen in High Courts, where the judgements in one High Court can be considered as persuasive precedents in another. This can be seen when similar cases arise in various High Courts the verdict can be made by relying upon judgments from other High Courts. They will not be binding but will be persuasive and will act in favour of the litigating party in whose favour the previous verdicts have been made.
  1. Absolutely Authoritative: – In these cases, the verdict that has been earlier must mandatorily be followed by the judge. Even if the judge thinks that it is a wrong judgement they are required to follow that precedent because of sheer numbers. This is usually seen in cases where the bench is smaller than the bench that decided upon the precedent that the judge is relying on. This is also possible in cases of hierarchy, where certain courts have to rely on decisions made by superior courts. Binding Precedents are also known as authoritative precedents. Once a decision is made, these precedents are bound to the lower court or other equivalent courts.
  1. Conditionally Authoritative: – In this case, the precedents by a general rule are considered authoritative but can be disregarded in cases of the parties appearing before the Supreme Court. The decision can also be overturned. An example can be where we considered that the power to amend the constitution was complete till it was decided that limits must be placed on the same and that all laws in the Ninth Schedule, henceforth must also be tested against the basic structure.

Importance of Judicial Precedent

The primary function of the Judiciary is the settlement of disputes. Initially, while adjudicating, the courts are guided by customs and their own sense of justice. Later on, legislations become the main source of law and the Rule of Law is what judges base their decisions on.

  1. Inductive Method: – A great amount of reliance is placed upon the decisions of the judges in this method. The judges look into previously decided cases in the same or superior courts before giving a final judgement, of a similar nature that have already been adjudicated upon before. They consider general rules and principles from the previous case and apply them on the cases before them. They then decide accordingly. This is known as the Inductive method.
  1. Deductive Method: – In this method, a great amount of reliance is placed on legislatures and the enacted statutes. It can be seen as a kind of positivist approach but most judges are now free to interpret the law in any way they see fit to favour justice, equity and good conscience. In such a system, the cases are decided on the basis of the enacted legislation and statute that are codified and the judges decide cases on the basis of these statutes. Here the judges do not decide on the basis of previously decided cases.

What are the parts of a decision?

The parts of a decision are as follows: –

  1. Ratio Decidendi: – The ‘ratio decidendi’ is derived from a Latin word meaning reason for the decision. It consists of a rule or principle established and formulated through judgment. The principle applies in all future decisions that create the same facts; the fall in the ratio is binding on all lower courts of the country.The ratio or cause of decision making is deducted from the facts of the case and subsequently applied in all other cases, it forms the basis for accepting a particular decision as precedent.
  1. Obiter Dictum: – An obiter dictum is an opinion or comment made by a judge that does not form an essential part of a court’s decision. Obiter dictum is a Latin word that means the way things are done. The Obiter dictum mentions some opinions, examples, statements, observations, etc., which are made by the judge while making the decision. These opinions are not binding on all other courts, while they are only persuasive in nature.

What are the advantages of Judicial Precedent?

The advantages of Judicial Precedent are as follows: –

  1. All people dealing with the same case are treated equally and there are equality and fairness of justice.
  2. It serves as guidelines to decide future cases.
  3. For example, time is saved and convenience increases because the question once is already settled and this saves the time and labor of judges and lawyers.
  4. Precedents help formulate new statutory laws and adjust to the changing circumstances of society.
  5. Cases that make them more practical.
  6. The binding precedent establishes a rule that helps maintain stability.

What are the disadvantages of Judicial Precedent?

The disadvantages of Judicial Precedent are as follows: –

  1. A precedent bound a lower court to follow it which sometimes forces it to take less or harsher decisions, which does not require in a case.
  2. There are many examples of many cases and hence it becomes difficult to apply the right example in the right case.
  3. It is not mandatory to follow a precedent when a case is distinguished.
  4. Some situations are not recognized under precedent because they are not taken into consideration.

Types of Opinion

  1. Dissenting Opinion: – Dissenting opinion, or disagreement, is the separate judicial opinion of an appellate judge who disagreed with the majority’s decision explaining the disagreement.
  1. Concurring Opinion: – A concurring opinion agrees with the outcome of the majority opinion, but not necessarily the argument found in the majority opinion. The concurrent opinion gives adjudicator an opportunity to clarify the legal logic of a case or to present a completely different legal argument for adjudication.

Use of Precedent in the United States

The United States uses the common law system to some extent in its state courts and its lower courts. The defined principle of common law requires that courts follow the decisions of higher-level courts within the same jurisdiction.From this legacy of staring, it seems that according to the law, somewhat predictable, consistent bodies have emerged.

The hierarchy of the court is clearly defined. The federal court system is based on a three-tier structure, with United States district courts being trial-level courts; The United States Court of Appeals is the first-level court of appeal, and the United States Supreme Court is the ultimate arbiter of the law. The system includes both judge and jury and their respective roles.

Common law refers to judge-made laws otherwise referred to as case laws, these case laws maybe based on constitutional provisions, statutory provisions or may be pure decisive case law. Thus the case laws are properly recorded and also available to a common researcher.

The system of precedent is also very flexible, as the US Supreme Court rejected many of its decisions. For example: Between 1946 and 1992, 130 of its decisions were dismissed. The system, therefore, provides for the general rule of staring and effective implementation with a flexible structure.

Good examples of Judicial Precedents

  1. Vishakha and others vs. State of Rajasthan (Air 1997 SC 3011)

It is considered one of the historical cases in India as the case was the first of its kind to protect women at their work sites. The case has its roots in the recollection of Bhanwari Devi, who was a social worker and was gang-raped by men on the upside, as she opposed child marriage.

The determination of Bhanwari Devi attracted many women and a public interest petition collectively under the forum of Visakha for violation of Articles 14,15,19 (1) (g) and 21.

The decision given by the bench of JS (PIL) induced to file. Varma, Sujata Manohar and BN Kripal gave Vishaka guidelines to protect women from sexual harassment at the workplace, later it was changed in 2013 to the Sexual Harassment of Women in Workplace Act, 2013, one of the biggest victories of women enabled.

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