In general parlance, precedent is the statement of law created by a judicial pronouncement, which is a binding principle that could be adopted or taken as an example while deciding the subsequent cases with similar material facts. In other words, precedent implies taking note of a previous judgment and relying upon its rationale to substantiate or justify the decision of the case at hand. It is pertinent to note that the decisions of the superior courts are binding to the lower courts i.e. the subordinate courts are bound to follow the decisions made by the supreme and the high court.
Judicial activism denotes the active participation of the judiciary in upholding the rights and freedom of an individual. Back then, when the customs and justice notion were the only sources of law, the judiciary was at its zenith as decisions have had driven by judicial discretions. But then, when the legislation was implemented to guide the court, the judiciary has started discharging its creative responsibility in filling up the lacunae in that enforced legislation. Through the eyes of Jeremy Bentham, such judge-made laws are the precedents. Thus, judicial precedents are the principle of law that can be used as a source by a judge, as it enables him to invoke past judgments as an authority to decide the present case, which has a similar set of facts.
In the words of Salmond, “in a loose sense, it includes merely reported case law which may be cited and followed by courts. In a strict sense, that case law which not only has great binding authority but must also be followed. In all precedents are authorities of past decisions for future cases. It must be reported, cited and followed by courts”. Whereas, gray perceived that precedent covers everything said or done, which furnishes a rule for subsequent practice.
What is Doctrine of Precedent
As far as the doctrine of precedent is concerned, it connotes the binding nature of precedents. The groundwork of this doctrine has been laid by Article 141 of the Indian constitution, as it provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
Substantially, In the case of Bir Singh v. Union of India, it was held that “the judgment of a decided case is precedent and the same will operates as a binding precedent to all possible contingencies when a similar issue of law arises. Before construing the doctrine of precedent, it is a prerequisite to know what exactly in a judgment is binding pursuant to Article 144 of the constitution.”
Which is the source for future decision-making?
Ratio Decidendi and Obiter Dicta,
Ratio Decidendi – if a case brought before the court has an issue, which holds a question exhibiting the situation of non-liquet. The judge will discuss the relevant laws and case facts by ascertaining the material fact by obviating the immaterial facts. The resultant principle associated with the rationale of the judgment is called Ratio Decidendi. Such principle of law is not only applicable to that particular case but all subsequent similar cases.
Ratio Decidendi = Rationale of the Judgment
This Ratio Decidendi of a case is binding to all courts. In Jayant Verma v. Union of India, wherein the court has held that a judgment will have no authority, If it has passed without hearing the other party, or without giving proper reasoning, or devoid of citing any case laws to substantiate the reason behind such judgment.
Obiter Dicta – it is generally the observations that are made by the court during the decision-making process but are not principally concerned with reaching a decision. Hence, obiter dictum is the mere judicial opinion in a particular case and has no general application. Therefore, an obiter dictum doesn’t have the binding effect, but Ratio Decidendi has.
In the case of Krishna Kumar v. Union of India, the Hon’ble Supreme Court of India held that the enunciation of reason and the principle of law upon which the arisen dispute has settled following the question under the consideration of court has been decided are alone binding as a precedent. Nevertheless, obiter dicta have significance despite its lack of precedent force.
Types of precedents
Original and declaratory precedent,
In the overall context of theories of precedents, judicial decisions are of two types, categorized based on the decision-making processes applied in a case. If a judge makes a decision by applying the established and approved principle of law, it is called declaratory precedent. Per contra, the decision which itself establishes a new legal precept is called original precedent. Thereby, it becomes the source of law as it potentially develops the law.
It is pertinent to note that, since both are being precedents, both have the binding effect regardless of whether it has merely applied a pre-existing law or has created a new principle. It can be aptly epitomized by the two confronting theses of precedent backed by different philosophers. Purportedly, jurists like Austin and Friedman claimed that the original precedents are the only binding precedents since it creates new principles, whereby it endorses the law-making role of a judge. On the other hand, the famous English jurist Sir William Blackstone considered declaratory precedents as the only form of precedent, which is binding. He added that the only function of a judge is to discover the pre-existing law and determine the outcome of a case by applying it.
Authoritative and persuasive precedent,
Persuasive precedent is the statement of law that leaves no onus of responsibility on the court to abide by it. Thus, it leaves it to the discretion of the court to decide whether to follow the precedent or not. Nevertheless, persuasive precedents are the court’s guide on which the judge can rely upon if he finds it appropriate. Hence, even it is not a binding precedent; it exercises considerable influence over the decision. The following are the persuasive precedents,
- Decisions of the lower courts
- The decision of a particular high court to other high courts
- Foreign judgments
- Statements made in obiter dicta
Authoritative precedents ought to be followed by the judges irrespective of their personal opinions. The hierarchical system of courts plays a pivotal role in determining the binding authority of the precedents. For instance, Supreme Court’s judgments are binding on all its subordinate courts. Similarly, the decision of a high court is binding on all the courts that come under its jurisdiction. Thus, the authoritative precedents are the judicial pronouncement of the superior courts.
Withal, The Authoritative precedents bifurcate into absolute and conditional. As far as the former is concerned, it leaves no choice to the judge but to apply the fait accompli precedents, even it appears to be a wrong and erroneous judgment, whereas, the latter allows disregarding a judgment if it is unjust and goes against the law.
Binding precedents in India
1. Lower courts are absolutely bound to follow the decisions of the superior courts as per the court’s hierarchical system. – In J Sharma Rao v. Union of India, the court held that the mere decision as a conclusion is not binding, but its rationale that contributed to attaining such judgment is binding. At the same time, the decisions of the higher tiers are binding on the lower tires.
2. Supreme Court is not bound by its own decisions. – The expression ‘all courts’ in the context of Article 141 of Indian Constitution should be comprehended as courts other than Supreme Court. Thus the Supreme Court is not bound to follow its own decision but free to review and reconsider its previous decisions following the arisen extenuating circumstance. The same was held in the case of Bengal Immunity Co. v. the State of Bihar.
3. The decision of one High Court is not binding precedent upon another high court. – In the case of Valliamma Champaka Pillai v.Siuvathanu pillai, the Apex court held that, just like Article 141 of Indian Constitution, there is nothing in the law to exalts the decision of one high court to the status of binding on another, and could never be made binding by invoking the doctrine of precedent.
Similarly, in the case of Pradip J. Mehta v. Commissioner of Income, it was held that in the best possible circumstances, the ratio of one high court’s decision could possibly have persuasive value on others.
4. Reiteratively, lower courts are bound to follow the decisions of the high court. – If there is a conflict between the co-ordinate jurisdictions i.e. two benches have similar authority, the latter’s decision will remain legally binding. Generally, a bench of two judges is called a division bench, whereas a full bench consists of three or more judges and is set upon an ad hoc basis. Likewise, authority increases with the increase in the number of judges seated on a bench.
5. The high court cannot overrule the decisions of the Supreme Court. – In the case of Suganthi Suresh Kumar v. Jagdeesham, it was held by the Apex court that under no circumstance a High Court can overrule the decision of the Supreme Court. Pandurang Kalu Patil v. State of Maharashtra, wherein the Apex court reaffirmed an established principle by holding that the Supreme court is empowered to cease the precedential value of the high court’s judgment.
6. A bench of lesser quorum is off-limit to dissent the decisions of larger quorum.
Judgments that lack binding force pursuant to article 141,
(a) The decision devoid of a proper rationale to be justified.
(b) The decision, which overlooks the crux of the issue at the instance.
(c) Obiter dicta of a judgment have no binding value but have persuasive value.
(d) Sub Silentio is the decision that has passed without argument, and without analyzing the factual matrix i.e. ignoring the central question of the case and passing the judgment ‘in silence’ without citing and referring to the applicable rule of law. As per black’s law dictionary, “the precedents that pass sub silentio are of little or no authority.”
(e) The spectrum of ‘per incuriam’ (per ignoratuim), ignoring the law but proceeds to pass the judgment.
(f) Mere directions of the court without laying down any principle of law.
Reiteratively, the doctrine of precedent is the resultant rule of law laid down by the judge while determining the outcome of the question in a lawsuit. But, from where this precedent originated? It is not a Res Integra question, since it has its origin from the doctrine of stare decisis, which literally means to abide by the decisions or to stand by the things decided. Even though a principle is not strict as enacted legislation, at times, it holds binding force. But the status quo of the doctrine of precedent in India is undeniably weakened as many precedents are being ceased qua struggling to cope with the dynamic society. However, the judiciary should reinforce the law and justice by balancing both the precedents to ensure certainty and legal interpretations to tackle future controversies.
 AIR 2019, SC 2446
 AIR 2018 SC 1079
 (1990) 4 SCC 207
 1967 AIR 1480
 Suganthi Suresh Kumar v. Jagadesan, AIR 2002 SC 681
 AIR 1955 SC 661
 1979 AIR 1937, 1980 SCR (1) 354
 (2002) 175 CTR Guj 394
 2002 (1) SCR 269
 Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675 : (1941) 2 All ER 11 (CA)
 Delhi Admn. v. ManoharLal, (2002) 7 SCC 222