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PRECEDENT AS SOURCE OF LAW AND ITS IMPORTANCE

Written By: Ayushmaan Chouskey




Precedent is one of the important instruments used by judges in the adjudication process. Precedent is also one of the sources of law. In its simplest meaning, precedent is a technique used by judges in which they establish a new principle or rule, and in future cases, they refer to these principles or rules, which are binding on subordinate courts. English law considers precedent a source of law as well as evidence of the law.


Definition of Precedent:


According to Salmond, “in a loose sense, it includes merely reported case law which may be cited & followed by courts.”


According to Keeton, “a judicial precedent is judicial to which authority has in some measure been attached.”


According to Gray, “precedent covers everything said or done, which furnishes a rule for subsequent practice.”


THE DOCTRINE OF STARE DECISIS


Stare Decisis means “to stand by precedent and not to disturb the settled point of law”. It means that judicial decisions have binding force, and enjoy status perse.


The doctrine of Stare Decisis stipulates that two conditions must be met:

1) There must be a judicial hierarchy;

2) There must be reliable reports of cases.


The Doctrine of Stare Decisis makes the judicial decision to be binding and also makes stability in the law.


The idea of stare decisis was ruled to be a highly essential principle of precedent in Manganese Ore (India) Ltd. vs. Regional Asstt.CST [1], which cannot be deviated from unless there are rare or particular grounds to do so.


ORIGINAL AND DECLARATORY PRECEDENTS:


Both types of decisions are treated as precedents because both are authoritative guides to the court for the determination of future cases.


There are two types of judicial decision :


Original Precedent: Original Decision refers to the outcome of a decision that creates new law. The Original precedent is the source of law as it may give new law. Original precedents are fewer in number and are of greater importance.


Declaratory Precedent: Those who apply the known principle of law to particular facts of a case are called declaratory precedent.


AUTHORITATIVE AND PERSUASIVE PRECEDENT


Authoritative Precedent: In Authoritative precedent, the lower court judge has to follow the higher court order. The superior court order is always considered an authoritative precedent. The authoritative precedent is further divided into absolute and conditional.


Absolute Precedent An absolute precedent is legally obligatory and must be obeyed without inquiry, no matter how irrational or erroneous it appears to be.


Conditional Precedent: A conditional precedent is ordinarily binding on the judge but that he may disregard in restricted circumstances.


Persuasive Precedent: A persuasive precedent is one that the court is not required to follow. He now has the option of following or not. The judge has complete control over whether or not to follow the decision. The final decision is made by the judge.


RATIO DECIDENDI AND OBITER DICTA


When we state that a judicial decision is binding as a precedent, we mean that a rule or principle that was formulated and implemented in the case must be applied in the future when identical facts arise. The ratio decidendi, which is at the heart of the precedent, is a rule or principle. The first meaning is 'the reason for deciding,' which is the direct translation of the word. The judge made his decision based on the rule of law. The basic principle of a decision that acts as its authoritative element is known as the ratio decidendi. It's always a question of judicial judgement and ingenuity. In the case of Krishna Kumar vs. Union of India and Others, it has been observed that the ratio decidendi can be ascertained by an analysis of the facts. In the case of Krishna Kumar vs. Union of India and Others[2].


Obiter dictums are legal pronouncements in a judgement that is not part of the ratio decidendi. In other words, it contains an accidental remark with no binding force. It frequently influences judicial thought and, in time, may become the ratio.


PRECEDENT SYSTEM IN INDIA


Article 141 of the Supreme Court states that the law declared by the Supreme Court of India shall be binding on all courts in India.


The question of whether the Supreme Court is bound by its own decision under article 141 was raised in Bengal Immunity Co Ltd vs. the State of Bihar. In this case, it was determined that, while the phrase "all the courts in India" appears to be broad enough to cover the Supreme Court of India, it does not. As a result, the Supreme Court is not bound by its earlier ruling and is allowed to revisit its inappropriate instances.


High Court has to follow the decision of the Supreme Court. The Supreme Court stated in Samantha Suresh Kumar vs. Jagdeeshan [3] that "It is not admissible for a High Court to overturn an Apex Court decision only on the basis that the Supreme Court established a legal position without examining any other issue. Even if the issue sought before the High Court is valid, the High Court cannot call the Supreme Court's decision into question."


When two Supreme Court decisions disagree, the decision of the bigger bench may take precedence over the decision of the smaller bench. This is likewise true in the High Court.


There are some cases where the Supreme Court does not follow the idea of precedent under Article 141 of the Constitution. When the decision of the court has persuasive value, the court's opinions on the facts of the case are not binding, and judgments rendered on Per Incuriam cannot rely upon precedent. The literal definition of Per Incuriam is the product of ignorance.


The case of Kesavnanda Bharati vs. State of Kerala[4] provides the most prominent example of the rule that the Supreme Court is not bound by its rulings. In several other decisions, the Supreme Court has clarified the issue.



HIERARCHY OF COURTS:


A well-established court hierarchy is required since the basic rule of precedent states that a court is bound by the decision of all superior courts.


According to the Doctrine of precedent in India, the subordinate courts are bound to follow the decision of the District Court, the District Court is bound to follow the decision of the High Court, and the High Court is bound to follow the decision of the Supreme Court.


In Bengal Immunity Co Ltd vs. the State of Bihar [5], the question of whether the Supreme Court is bound by its judgment under Article was challenged. In that instance, it was determined that the Supreme Court is not bound by its earlier decision and is free to reconsider it in appropriate cases. When two Supreme Court decisions disagree, the decision of the larger Bench takes precedence over the decision of the smaller Bench. This principle applies to High Courts as well.


HIERARCHY OF COURTS:

CONCLUSION:


Precedent is one of the sources of law. In English law, the judges use precedent and legislation to make law. As important as the law is, so is precedent. By precedent, the court can save time in future cases by applying the principle. The concept of precedent serves a crucial purpose in ensuring the legal system's certainty, consistency, predictability, and stability. On the other hand, there are some disadvantages also where courts are not allowed to accept the precedent.


FOOTNOTES


  1. In Manganese Ore (India) Ltd. vs Regional Asstt. CST, (1976) 4 SCC 124

  2. Krishna Kumar vs. Union of India and Others,( 1990) 4 SCC 207

  3. Samantha Suresh Kumar vs. Jagdeeshan (2002)2 SCC 420

  4. Kesavnanda Bharati vs. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461

  5. Bengal Immunity Co Ltd vs. State of Bihar, AIR 1955 SC 661

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David Smith
David Smith
Sep 12, 2022

You have provided a knowledgeable post about PRECEDENT AS SOURCE OF LAW AND ITS IMPORTANCE. One of the key tools judges employ in the adjudication process is precedent. One of the sources of law is precedent. In its most basic sense, precedent refers to a technique employed by judges to establish a new concept or rule and then to cite these principles or rules in subsequent cases, which are binding on lower courts. By the way, I already know where to look for the greatest assignments, you may visit the homework help service on this website to learn more and pick up some helpful information.

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