TABLE OF CONTENT
·
Introduction
·
Research Methodology
·
Precedent as a source of law
·
Kinds of Precedent
·
Importance of Precedent
·
Nature of Judicial Precedent
·
Hierarchy of authority
·
Advantages & Disadvantages of
Precedents
·
Over- ruling
of Precedent
·
Per -Incurium
·
Law Reporting in India
·
Ratio Decidendi
·
Obiter Dicta
·
Doctrine of Stare Decisis
·
Conclusion
·
Cases Referred
·
Bibliography
Precedent
Introduction
Precedent is an important source of law.
A precedent may be defined as a statement of law found in the decision of a
Superior Court, which has to be followed by that court and by courts inferior
to it.
It is a distinguishing feature of the
English legal system because most of the common law is unwritten and owes its
origin to precedents. Precedents have a binding force on judicial tribunals for
deciding similar cases in future. In continental countries like Germany,
France, Italy, precedent has only instructive value and it is not
authoritative. Its importance no greater than that of a text of a book of law.
On the other hand, in English legal system authoritative importance, it is in
fact a legal source of law which the courts are bound to follow.[1] There,
working together in harmony and the power and prestige which they enjoy as
members of Royal Court have contributed to the development of a single
homogenous system of common law in England where cases decided by the judges
command great value and authoritative force.
According to Salmond, a precedent speaks in England with authority;
it is not merely the evidence of law but a source of it; and the courts are
bound to follow the law that is so established. According
to Salmond, the doctrine of
precedent has two meanings, namely:
1- In a loose sense precedent includes merely
reported case law which may be cited and followed by the courts.
2- In its strict sense, precedent means that
case-law which not-only has a great binding authority but most also be
followed.
Holds worth supports the doctrine in its loose
sense. In recent years, the value of doctrine of precedent has become a
debatable issue. There is no dissatisfaction with the practice of citing cases
and attaching weight to them, the difference of opinion is as to the precedent
practice of treating precedents as absolutely binding.[2]
Research Methodology:
The
proposed research study will be carried out with the help of the following
strategies:
- Studying Primary and Secondary Sources (Books, Articles),
- Library Research.
The study is non-empirical and is not
based on extensive field surveys.
Precedent as a source of law
Unnikrishnan v. state of Andhra Pradesh
Precedent when speaks with authority,
the embodied principle becomes binding for future cases and it thus becomes a
source of law.
Blackstone has pointed out that it is an
established rule to abide by the former precedents where the same points come
again in litigation.
They also keep the scale of justice even
and steady and not liable to be waved away with every new judge’s opinion.
Justice Cardozo also supports the view that adherence to precedent should be
rule and not an exception. The rule of precedent should, however, be abandoned
if it is consistent with the notion of justice or derogatory to social welfare
policy.[3]
According to Jeremy Bentham, precedent
is a Judge - made law while Austin calls it as judiciary’s law. Keeton holds
precedents as those judicial pronouncements of the court which carry with them
certain authority having a binding fo rce.
Kinds of Precedent
According to Salmond, precedent may be
divided in the following manner:
1- Binding
Precedent
2- Persuasive
Precedent
Binding precedent:
Binding
precedents are decisions in court cases that establish legal standards that
must be followed by lower courts. Supreme Court decisions establish a binding
precedent on court cases addressing similar issues across the country.
Consequently, lower court judges are obligated to rule in a manner consistent
with the binding precedent set by the Supreme Court in similar cases. Rulings
of lower circuit courts set a binding precedent for courts within that circuit.3
Persuasive precedent:
A persuasive
precedent is different to a binding precedent in that the lower courts are
unable to bind the higher courts to their decision, but can only be persuasive. As in the Mandla
v. Dowell Lee case[4], we can identify how the House of Lords decision was
swayed by the decision made in the Court of Appeal level in Australia. Decisions
made within the Common Law world can only act as an aid to the reasoning and
decision-making of higher courts in the U.K. Persuasion
of the lower courts could either be followed, disapproved, or overruled. Persuasive precedent can also be
derived from courts of the same level, for example, if the House of
Lords decide that a previous decision on a case with similar material facts was
decided incorrectly, they would simply ignore that decision, or, on rare
ocassions, overturn that decision. This is
evident in Regina v. Shivpuri[5] and Anderton v. Ryan[6] where the Law Lords decided Anderton had
been wrongly decided as to criminal attempts and overturned its own decision in Shivpuri.[7]
Importance of
Precedent
In a common law system,
judges are obliged to make their rulings as consistent as reasonably possible
with previous judicial decisions on the same subject. The Constitution accepted
most of the English common law as the starting point for American law. Situations
still arise that involve rules laid down in cases decided more than 200 years
ago. Each case decided by a common law court becomes a precedent, or guideline,
for subsequent decisions involving similar disputes. These decisions are not
binding on the legislature, which can pass laws to overrule unpopular court
decisions. Unless these laws are determined to be unconstitutional by the
Supreme Court, they preempt the common law precedent cases. Judges deciding
cases are bound by the new law, rather than the precedent cases.[8]
Nature of Judicial
Precedent
A judicial
precedent is purely constitutive in nature and never abrogative. This means
that it can create law but cannot abolish it. The judges are not at liberty to
substitute their own views where there is settled principle of law. They can
only fill in the gaps in the legal system and remove imperfections in the
existing law.
The process of judicial decision making is
either deductive or inductive.
Deductive method is associated with codified system of law. It assumes that
legal rule applicable to any particular case is fixed and certain and the Judge
is required to apply this rule as justice according to the law without any
reference to his personal view. This implies that Judge’s decision is deduced
directly from general to particular in circumstances of the case before him.
Inductive method which
is characteristic of English law, on the other hand, starts with same primary
object of finding the general principle applicable to the particular case, but
it does not conceive the rule as being applicable directly by simple method of
deduction. It rather moves from particular to general. The method involves
reasoning inductively and in the process, the judge is bound by the decision of
the courts higher than his own court.
Thus it would be seen
that deductive method of judicial method of law making pre-supposes law as
static whereas in actuality judicial decisions may change the law by
over-ruling precedents or by announcing new legal norms. It is for this reason,
it is said “deductive method may explain legal stability but it can not account
for legal change.”
Hierarchy of authority
The
general rule is that a Court is bound by the decisions of all Courts superior
to it. The judicial setup with in the state is the determinant factor: if there
be a constitution it may determine the powers and functions of the higher
judiciary, otherwise the statutes which create Courts will denote their
functions and also their position in the judicial set-up by limiting
jurisdiction, providing for appeals from their decisions etc.
Advantages &
Disadvantages of Precedents
Advantages:
- It shows respect for the opinion of one’s ancestors.
- Precedents are based on customs, and, therefore, they should be followed. Courts follow them because “these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.”
- As a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save the labour of the judge and the lawyers.
- Precedents bring certainty in law. If courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the lawn would become most uncertain.
- Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social, economic and many other values of their age.
- Precedents are Judge-made law. Therefore, they area more practical. They are based on actual cases. It is not like the statute law which is based on a priori theories. The law develops through precedents according to actual needs.
Disadvantages:
There is always a possibility of
over-looking authorities. The vastly increasing number of cases has an
over-whelming effect on the judge and the lawyer. It is very difficult to trace
out all the relevant authorities on every point.- Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the horns of a dilemma. The courts are faced with what an English judge called “complete fog of authorities”. Though there are rules for such contingencies, they are not of so much help.
- The provision is that the lower court should choose between the two conflicting decisions of a superior court. But this makes the law uncertain, depending on the individual interpretation and discretion.
- A great demerit of the doctrine of precedent is that the development of law depends on the incidents of litigation. Sometimes, most important points may remain unadjudicated because brought action upon them.
- A very grave demerit or rather anomaly, of the doctrine of precedent is that, sometimes, to an extremely erroneous decision is established as law due to not being brought before a superior court.[9]
Over-ruling of Precedent
When ever in a case, bench strength of greater
no. of judges with a majority reverse the decision given in the precedent of
the case, then it is termed as over-ruling of precedent.
Overruling
can occur if the previous court did not correctly apply the law, or because the
later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable.
For example, in the famous case of Keshvanand
Bharti v. State of Kerela[10], the decision was in the favour of the plaintiff and since
then it is used as a precedent in the cases based on the doctrine of BASIC
STRUCTURE.
To over-rule the judgment of that case, it is
required that a Bench-strength of more then 13 Judges, with a majority, gives a
decision which is opposite to the above mentioned case.
When it will happen, it will be said that the
precedent is over-ruled.
Per – Incuriam
A decision which is reached per incuriam is one reached by carelessness or
mistake, and can be avoided. In Morelle v Wakeling[11]
Lord Evershed MR stated that "the only case in which decisions should
be held to have been given per incuriam are those of decisions given in
ignorance or forgetfulness of some inconsistent statutory provision or of some
authority binding on the court concerned".
In Secretary
of State for Trade and Industry v Desai[12] , Scott LJ said that to come within
the category of per incuriam it must be shown not only that the decision
involved some manifest slip or error but also that to leave the decision
standing would be likely, inter alia, to produce serious inconvenience in the
administration of justice or significant injustice to citizens.
Law Reporting in India
The theory of binding
force of precedent is firmly established in England. A judge is bound to
follow the decision of any court recognized as competent to bind him, and it
becomes his duty to administer the law as declared by such a court. The
system of precedent has been a powerful factor in the development of the common
law in England.
Because of common law
heritage, the binding force of precedents has also been firmly established in
India, meaning thereby that the judgments delivered by the superior courts are
as much the law of the country as legislative enactments.
The theory of precedent
brings in its wake the system of law reporting as its necessary
concomitant. Publication of decisions is a condition necessary for the
theory of precedent to operate; there must be reliable reports of cases.
If the cases are to be binding, then there must be precise records of
what they lay down, and it is only then that the doctrine of stare
decisis can function meaningfully.
The Indian Law Reports
Act of 1875 authorizes the publication of the reports of the cases decided by
the high courts in the official report and provides that, “No Court shall be bound
to hear cited, or shall receive or treat as an authority binding on it the
report of any case decided by any of the said High Courts on or after the said
day other than a report published under the authority of the
Governor-General-in-Council.”
Though the Law Reports
Act gave authenticity to the official reports, it did not take away the
authority of unpublished precedents or give a published decision a higher
authority than that possessed by it as a precedent. A Supreme Court or
high court decision is authoritative by itself, not because it is reported.
The practice of citing
unreported decisions thus led to the publication of a large number of private
reports. The unusual delay in publication of official reports and incompleteness
of the official reports made the private reports thrive, resulting in
a number of law reports in India being published by non-official agencies on a
commercial basis.
In India, there are more than 300 law reports
published in the country. They cover a very wide range and are published
from various points of view. A “union catalogue” compiled by the
Supreme Court Judges’ Library of the current law journals subscribed by the
libraries of various high court and Supreme Court judges (appended at the end
of this paper) gives details of various law reports published from India.
It also gives details of various foreign law reports submitted by law libraries
in India, which gives an idea of the “foreign journals” being used by
the legal fraternity in the country.[13]
Ratio Decidendi
The Latin phrase “Ratio Decidendi,” often translated as “the reason for the decision”.
The ratio decidendi of a case is the principle of law on
which a decision is based. When a judge delivers judgement in a case he
outlines the facts which he finds have been proved on the evidence. Then he
applies the law to those facts and arrives at a decision, for which he gives
the reason, is called ratio decidendi.
The ratio
decidendi of Donoghue v. Stevenson[14] case
was that it exploded the doctrine of privity of contract and held the
manufacturer is liable to consumer for this negligence in manufacturing the
goods which is of such a nature that it is incapable of intermediate inspection
by retailer. The plaintiff was, therefore held entitled for damages caused to
her due to decomposed snail inside the ginger-beer which was being sold in
opaque bottle.
Obiter
Dicta
Obiter
dicta literally means “said in passing”,
which does not have any binding authority.
It has three
definitions:-
·
"literally,
something said [dictum] in passing [obiter] . . ."
·
"an
incidental remark or observation"
·
"an
incidental and collateral opinion that is uttered by a judge but is not
binding"
In the third meaning an obiter dictum is
a remark or observation made by a judge that, although included in the body of the court's
opinion, does not form a necessary part of the court's decision. In a court
opinion, obiter dicta include, but are not limited to, words
"introduced by way of illustration, or analogy or argument." [15]
They are statements which are not necessary to
decision, which go beyond the occasion and lay down a rule that is
unnecessary for the purpose in
hand(usually termed dicta) leave no binding authority on another court, they
may have some mere persuasive efficacy.
In S.R. Bommai v. Union of India[16]
the nine judges bench of the Supreme Court unanimously held that secularism is
one of the basic structures of the Constitution of India Justice Sawant and Kuldeep
Singh observed that social pluralism is on of the basic structures while Justice
Ramaswamy observed that socialism, social justice and fraternity are included
in the basic structure of of the constitution. Justice Ahmadi opined that the
rights contained in art 15 16 and 25 of the constitution formed a part of its
basic structure. These observations of learned judges are obiter dicta as they
were not directly in issue in the instant case. The ratio of the case is that
secularism is a part of basic structure of the constitution.
Doctrine of Stare Decisis
The operation of the doctrine of stare decisis is best explained by
reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand
by decided matters". The phrase
"stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates
as "to stand by decisions and not to disturb settled matters".
The doctrine of stare decisis has been
recognized by the Constitution of India. Art. 141 provide that the law declared
by the Supreme Court of India shall be binding on all courts in India. Although
the expression “all courts” is wide enough to cover the Supreme Court of India
itself, it has been held in Bengal Immunity Co. Ltd. v. State of
Bihar [17]
that the expression does not include the Supreme Court of India. The result
is that like the House of Lords, the Supreme Court is free to depart from its
previous decisions if valid reasons exist for doing so.
In
Minerva Mills Ltd. v. Union
of India[18], the Supreme Court of India observed:
“Certainty and continuity are essential ingredients of the rule of law.
Certainty in the application of law would be considerably eroded and suffer a
serious setback if the highest court in the land were readily to overrule the
view expressed by it in the field for a number o f years. It would create
uncertainty, instability and confusion if the propounded by this court on the
faith of which numerous cases have been decided and many transactions have
taken place is held to be not the correct law after a number of years.”
Types of stare decisis:
1-Vertical Stare Decisis
2-Horizontal stare Decisis
Vertical Stare
Decisis
Generally, a common law
court system has trial courts,
intermediate appellate courts and a supreme court. The
inferior courts conduct almost all trial proceedings. The inferior courts are
bound to obey precedents established by the appellate court for their
jurisdiction, and all Supreme Court precedent.
Appellate courts are only bound to obey Supreme
Court decisions. The application of the doctrine of stare decisis from a
superior court to an inferior court is sometimes called vertical stare
decisis.
However, in Federal systems the division between
Federal and local law may result in complex interactions. For example, state
courts in the United States are not considered inferior to Federal courts but
rather constitute a parallel court system. While state courts must defer to
federal courts on issues within federal jurisdiction such as constitutional
issues, federal courts must defer to state courts on issues of state law.
Horizontal Stare Decisis
The idea that a judge is
bound by (or at least should respect) decisions of earlier judges of similar or
coordinate level is called horizontal stare decisis.
When a court binds itself, this application of
the doctrine of precedent is sometimes called horizontal stare decisis.[19]
Conclusion
In conclusion, it is shown in this paper
that, it is desirable that some light should be shown on the future of the
precedents. As observed in this paper, the courts are performing a very
valuable creative function in modern times. This role of the courts is assuming
importance and their field of activity is rapidly widening. In England, the
doctrine of stare decisis has been
modified. It may be hoped that some device would be invented to get rid of it.
However the decisions of tribunals shall remain binding on subordinate courts.
There is no possibility of departing from this rule in near future nor are
there very strong reasons for it. In India also, the doctrine is not likely to
undergo any considerable modification.
Cases
Referred
Ø Keshwanand
Bharti v. State of Kerala,
AIR 1973 SC 1461.
Ø Donoghue
v. Stevenson,
(1932) AC 562.
Ø S.
R. Bommai v. Union of India, (1994) 3 SCC 1.
Ø Bengal
Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.
Ø Minerva
Mills Ltd. v. Union of India,
(1980) 3 SCC 625.
Ø
Mandla v. Dowell Lee, [1983] 1 All ER 1062.
Ø Regina
v. Shivpuri,
[1987] AC 1.
Ø Anderton
v. Ryan,
[1985] AC 567.
Ø Morelle
v. Wakeling,
[1955] 2 QB 379.
Ø Secretory
of State for Trade and Industry v. Desai, [1992]
BCC 110, CA (Civ Div).
Bibliography
Books:
·
Fitzgerald P. J.: Salmond on Jurisprudence,(12 ed.)p.141.
·
Cardozo: The nature of the judicial process, pp.
149-151.
·
Wadhwa Nagpur, “Dr. Avtar Singh Introduction to
Jurisprudence”,p.187.
·
Lectures in
Jurisprudence by Jayakumar N.K., 2nd edition, Lexis Nexis
Butterworths
·
Paranjape, Dr. N.V., “Studies In Jurisprudence & Legal Theory”,
pp. 224-226.
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