Every developed legal system has a judicial organ. The main function of this body is to adjudicate the rights and duties of the citizens. Earlier, in this adjudication, the courts are guided by customs and their own sense of justice. There are many sources from where we can derive what we know to be law. Law in layman’s terms is nothing but a set of rules created and enforced by the courts. Judicial precedent or decision is the primary source of law. It is a process which is followed by the judge’s to take decision.
One of the sources of law is legislation which means ‘rulemaking’. It is also one of the primary sources of law which has a huge ambit with regards to authorization. Customs form another important part of the law. Customs have been brought down from generation to generation and have been in practice since time immemorial. Laws are based on these customs. It is a reflection of society and it makes necessary to include the various customs in order to protect the interests of a diverse culture.
With the advent of society, legislation becomes the main source of law and judges decide cases according to it. Even now, the judges perform some creative functions.
Meaning of precedent – it is a decision or action taken by judges that have occurred earlier and act as guidance for similar situations or cases. It is a principle or rule that was declared or laid down in a past legal case. It is advisory or binding on courts and tribunals when a case with similar facts arises before it.
Definition of Precedent
Gray – “A judicial precedent covers everything said or done, which furnished a rule for subsequent practice”
Salmond – Precedent is, 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.
Austin – Precedent is “judiciary’s law”.
Bentham – ‘Precedents are judge-made laws’.
Keetone – Judicial precedent is a judicial decision to which authority has in some measure been attached.
History of Precedent
In ancient society, there have been less number of disputes occurred and there have few occasions to go to courts. So at that time, there was less possibility of development of precedent due to lack of adequate sources to maintain the record. In the absence of a proper organized judicial system, no doctrine of precedent developed in India as it has developed in England. In British rule, the theory of precedent started developing.
Indian law is largely based on English common law it is because; India was a colony of the British for a long period of time. Precedents became a source of law only during the British control in India.
The Government of India Act, 1935 established a federal court and Privy Council whose decisions were binding on all the other courts in the country and this was the beginning of using precedents in deciding judgments, soon with the passing of time precedents acquired a lot of importance.
Types of Judicial Precedent
1. Declaratory or Original Precedent –
In declaratory precedents, the application of a rule in an earlier legal case is used. A declaratory precedent involves declaring an existing law and putting it into practice and it doesn’t help in creating new law. In Original precedents, it arises when the court has never taken a decision in a case and it has to use its own discretion in order to come to conclusion and it results in the creation of new laws. An original precedent is one where a new law is created and applied in a legal matter.
2. Persuasive Precedent –
Persuasive Precedent includes decisions taken by an inferior court that a superior court or other court is not obliged to follow. This precedent is commonly seen in High Courts, where the judgments of one High Court can be considered as persuasive precedent in another. It is not directly considered as a source of law but is seen as a form of historical precedents. In India, the decisions of one high court can act as effective precedents in other high courts.
It is one of which, where the judge is legally bound to follow the judicial decision of the precedent in a case of law irrespective of whether he finds it wrong. This is generally seen in cases where the bench is smaller than the bench decided upon the precedent that the judges depend on. This is also possible in cases of hierarchy, where certain courts have to rely on decisions made by superior courts.
It is one where generally the precedent is considered absolutely authoritative but can be disregarded in cases where parties appearing before the Supreme Court. The decision can also be overruled. The court can overlook the decision if it is a wrong decision, or goes against the law and reason.
Doctrine of Stare Decisis
This doctrine derives from Latin term which means ‘to stand by things decided’. It is the legal principle that requires judges to stand by and respect the precedents laid down by previous similar decisions. This doctrine is mentioned in Article 141 of the constitution.
Parts of a decision
Ratio decidendi derives from Latin term and the literal meaning of the term is “reason for the decision”. It includes the rule of law or principle upon which a judicial decision is based. The principle is applicable to all upcoming judgments which have similar facts. It is binding on all the subordinate courts of the country. The reason or ratio of taking a decision are conclude from the facts of the case and later applied in all other cases, it forms the basis for accepting a particular decision as precedent.
Obiter dictum also derives from Latin term which means the things said otherwise. It is an additional opinion, observation or remark on the other issue made by a judge which does not form a necessary part of the court’s decision. It refers to certain opinions, statements, observations, ideas, examples, etc which are made by the judges while making the decisions. These opinions are not binding on all the other courts while they are only persuasive in nature.
Importance of Judicial Precedents as a source of law
The importance of precedent or past decisions taken by judges is recognized as a source of law since ancient times. The main function of the judiciary is the adjudication of disputes. Initially, while adjudicating, the courts are guided by customs and their own sense of justice. Subsequently, legislation becomes the main source of law and the Rule of law is what judges may derive their decisions from. Precedent plays an important role almost in every legal system.
- Judicial precedent helps to prepare new statutory laws and will adjust according to the changing conditions of the society.
- Judicial precedent helps the court system to save time on future cases and increases convenience as a question once decided is settled.
- It creates a system where everyone dealing with a similar case will treat in a similar manner, which leads to equality and fairness of justice.
- Binding judicial precedent establishes a regulation that helps to maintain stability.
- It provides the judicial system a certain measures of flexibility.
- It provides cases which makes them more practical.
- It also acts as guidelines to decide upcoming cases.
- It is considered to be rigid to alter a precedent once followed.
- A judicial precedent imposes a foundation on lower courts to follow it, which sometimes forces them to take lesser or harsher decisions than actually required.
- There are many precedents regarding many cases which make it difficult to implement the right precedent in the right case.
- Some situations are not recognized under precedent as they are not considered into account.
- When a case is distinguished it is not mandatory to follow a precedent.
- It forces the system to look backwards instead of looking toward the future.
- This process can introduce unnecessary restrictions into the law.
From the above, we can infer that precedents play a vital role in filling the gap in law and various statutes. It also increases the faith in the judiciary and makes laws more acceptable morally. The presence of judicial precedent makes it easier for the courts to form decisions when the case before them is a reflection of previously-decided law. This system certifies that the consistency and certainty provided with the justice system offers a fast, effective judicial process that works effectively and fairly for everyone. When every case receives similar outcomes are predictable. The rules and principles developed under this system create more flexibility within the judicial system as well. It does not always save the time and labour of judges but also secures predictability, certainty, and uniformity in the application of law. This system helps to interpret law and make changes according to the need and requirements of society.
Rachit Garg, Judicial precedent is a source of law, https://blog.ipleaders.in/judicial-precedent-source-law/
Principle Sources of Indian Law – Judicial Decision, https://www.toppr.com/guides/business-laws/introduction-to-law/principle-sources-of-indian-law-judicial-decisions/
 Kiranpreet Kaur, India: Judicial Precedents in India, 10 Feb 2020, https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-precedents-in-india
 G Kusuma, Precedents as a Source of Law, http://www.legalserviceindia.com/legal/article-2216-precedents-as-a-source-of-law.html
This article has been written by Chetna Gupta, BA LLB – 3rd year student at Department of Law, PIMR, Indore.
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