Precedent Origin And Stare Decesis


A precedent is a statement of law found in the decision of a predominant Court, which decision must be trailed by that court and by the courts sub-par compared to it. Precedent is a past decision whereupon the judges need to pursue the past decisions cautiously in the cases before them as a guide for all present or future decisions. At the end of the day, ‘Legal Precedent’ signifies a judgment of a Court of law refered to as an expert for choosing a comparative arrangement of facts, a case which fills in as power for the legitimate standard encapsulated in its decision. A legal precedent is a decision of the Court utilized as a hotspot for future decision making.

A precedent is a statement of law found in decision of a Prevalent Court. In spite of the fact that law making is crafted by the governing body, Judges make law through the precedent. Substandard courts must pursue such laws. Decisions dependent on an issue of law are precedents. Decisions dependent on inquiry of facts are not precedents. Judges must pursue the coupling decisions of Predominant or a similar court. Following past restricting decisions gets consistency decision making, not following would bring about disarray. It is very much settled that Article 141[1] engages the Supreme Court to declare the law and not to establish the law, which basically is the function of the council. To declare the law intends to translate the law. This interpretation of law is authoritative on every one of the Courts in India.

This is called as precedent.[2]

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The term precedent is not defined anywhere. In general English it 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 Salmond

In loose sense it includes merely reported case law which may be cited and followed by courts. In strict sense, that case law which not only has great binding authority but must also be followed. In all precedents are authority of past decisions for future cases. It must be reported, cited and followed by courts.


The main object of doctrine of precedent is that the law of the land should be clear, certain & consistent so that the Courts shall follow it without any hesitation. In Union of India v. Raghubir Singh[3] it has been held:

The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”


At first started on the grounds that medieval judges viewed themselves as accused of the obligation of finding out and announcing and authorizing contemporary traditions and uses.

By the eighteenth century, it turned into an indispensable piece of the precedent-based law framework. Master Mansfield had united and reaffirmed the precept of legal consistency, and declared – ‘Law does not comprise of specific cases, however of general standards’.

By the nineteenth century, Ruler Tenterden C.J. – “Decisions of our forerunners, the judges of previous occasions, should be pursued and embraced except if we can see in all respects plainly that they are mistaken, for generally there will be no sureness in the organization of law.”

Prof. Holdsworth in the twentieth century, “A specific component of protection is required, and the reservations with which the English arrangement of case law is gotten, empower the judges inside genuinely wide cutoff points to apply to old precedents, a procedure of choice and dismissal which carries the law into similarity with present day conditions. This is frequently communicated as the brilliant mean between a lot of adaptability and a lot of rigidity.”[4]


Precedent originates from the doctrine of stare decisis. Stare decisis means to abide by the decisions. The doctrine of stare decisis brings certainty and conformity to the decisions of the court and to law.

Elements of Precedent:

  • Concrete decision- binding upon parties;
  • Abstract Principle- binding as an authority on a subsequent judge.

Precedents may be divided in the following manner, according to the definition of Salmond:

  • Authoritative Precedents – a judge is bound to follow and it acts as a legal source of law;
  • Persuasive Precedents– judgments of foreign courts, judicia dicta and decisions of the Privy Council when it decides appeal cases from colonies and also it acts as a historical source to law.


The adage clarifies the tenet of gaze decisis. At the point when court settles an issue, a contention or a discussion between gatherings it turns into the law on those issues and clashes. Such a decision is a precedent. A precedent is a statement of law found in decision of the predominant court. Such decisions are official to that court and the second rate courts need to pursue. The cases dependent on comparable arrangement of facts chosen by a court may emerge in any future case. Following past decisions in comparative future cases, the court may spare time and abstain from clashing decisions, carrying consistency to law. The court settles an issue of law or of reality, it is ideal to remain by that decision while arbitrating comparative cases later on. Prior to choosing a case, the Judges investigate recently chosen cases of comparable nature by their very own court or by unrivaled courts. They will apply them on the facts or case before them and choose accordingly.[5]

In Indian legitimate framework, the judges take direction from past decisions on the point, and depend upon them. The decisions of Summit Court and High Courts are incorporated and distributed in reports. These reports are viewed as profitable from the legitimate writing point of view. Those decisions are effective in choosing cases of consequent cases of comparable nature. They are called as Legal Precedents. A decision is an expert for what it chooses.

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The proportion in the decision is its embodiment. The reason and standards on which a court chooses a case frames a precedent. A Legal decision has a coupling power for ensuing cases. In any case, the entire Judgment isn’t official in future cases.

In the case of Commissioner of Income Tax ­v. M/s Sun Engineering Works Private Limited[6], the Hon’ble Apex Court held that:

while applying the decision to a later case, the court must carefully try to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the Judgment divorced from the context of question under consideration by the court to support their reasoning.”

It is very clear that, only those statements in an earlier decision which may be said to constitute the ratio decidendi of that case are binding. Statements which are not essential or necessary for deciding the later cases, such non authoritative statements are called as obiter dicta.


There are three main criteria to oversight the previous precedents as follows; ­

A) Overruling

B) Reversing

C) Distinguishing

I] Overruling: ­

Departs from a decision made in a lower court. Then the previous decision is no longer binding.

II] Reversing: ­

This is where a higher court departs from the decision of the lower court on appeal.

III] Distinguishing: ­

This is where the facts of the case are deemed sufficiently different so that the previous case is no longer binding.

Order by consent of the parties:

The court can pass arranges by assent of the gatherings. Those requests are not mediation of the rights and liabilities of the gatherings. That decision does not set out any guideline. Those requests are not precedent. This is the place a court higher in the order.

Whether judgments of Hon’ble High Court are binding as precedents: ­

Like Article 141[2] engaging the Supreme Court to declare the law and making its precedents authoritative on every one of the Courts, there is no particular arrangement legitimately enabling the High Court to declare the law and settling on its decisions official on its subordinate Courts. However, it is very much settled that the Courts from a State subordinate to a High Court from that State are bound by its decisions. Question is what is the reason for this settled law.

The Hon’ble Supreme Court in M/s. East India Commercial Co. Ltd. Calcutta and another V/s. Collector of Customs, Calcutta held in para 31 of the Judgment as under:­

31…… Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government within its territorial jurisdiction.

 Under Art. 227, it has jurisdiction over all courts and tribunals throughout the territories in relation to which its exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it.

If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Courts binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notices issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves could be without jurisdiction.

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Precedents work like beacon to control all courts. Precedents get conviction law. They generally help the lower court judges, exceptionally the lesser judges to manage applying the law accurately. A few times the judges may bolster their perspectives with assistance of the precedents. These are the rules which must be trailed by the lower courts to guarantee the genuine equity, consistency, consistency in the legal decisions and furthermore give consistency to the individual rights.

[1]  Available at visited on November 20, 2018.

[2] Constitution of India, 1950.

[3] AIR 1962 SC 1893.

[1] Constitution of India, 1950.

[2] Dias, R.W.M., Jurisprudence, 5th Ed., Aditya Books, Pvt. Ltd, New Delhi, 1994, p. 228.

[3] AIR 1989 SC 1933.

[4] Available at http://www.shodhganga.inflibnet/ visited on November 20, 2018.

[5] Mahajan, V.D., Jurisprudence and Legal Theory, 5th Ed., Eastren Book Company, Lucknow, 2010, p. 275.

[6] AIR 1993, SC 43.

Aayushi Bana

Aayushi Bana, Content Writer, Law Corner Student of 7th Semester, Jamia Millia Islamia, New Delhi

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