JUDICIAL PRECEDENTS AS A SOURCE OF LAW

PRECEDENTS AS A SOURCE OF LAW
DIFFERENT DEFINITION OF PRECEDENTS
ARTICLE 141 OF THE CONSTITUTION OF INDIA
HIERARCHY OF COURTS IN INDIA THE APEX COURT AT THE TOP AND OTHER COURTS AS SUBORDINATE COURTS
NATURE AND CHARACTERISTICS OF PRECEDENTS
DIFFERENT KINDS OF PRECEDENTS
DOCTRINE OF STARE DECISIS
DECISION SUB SILENTIO
DOCTRINE OF PROSPECTIVE OVERRULING RATIO DECIDENI OF A CASE OBITER DICTUM OF THE CASE
MERITS OF PRECEDENTS
DEMERITS OF PRECEDENTS

1. AMITY LAW SCHOOL JURISPRUDENCE TOPIC: PRECEDENTS AS A SOURCE OF LAW SUBMITTED TO SUBMITTED BY: PRATEEK DEOL GAURAV PUROHIT ASST PROFESSOR BBA LLB 4 TH SEMESTER

2. JUDICIAL PRECEDENTS It is a very important Source of Law Judicial Precedent refers to previously decided Judgments of Superior Courts such as Supreme Court and High Court. The Binding Character of previously decided cases is important considering the Hierarchy of Courts established by the Legal System and it is established by Constitution of India

3. DEFINITION OF PRECEDENTS BY JURISTS SALMOND: Precedent has two meaning one is reported case laws which may be Cited and followed by Court and second Precedent means Case Laws which not only has great binding authority but also be followed. Bentham: Precedents are Judge made Law Gray: Precedent covers everything said or done, which furnishes a rule for Subsequent Practice Austin: Precedents are Judiciary’s Law

4. CHARACTERISTICS OF JUDICIAL PRECEDENTS It can be inferred that Precedents are: Guidance or authority of past decisions for future cases. Precedent must have opinio juris These must be followed widely for a long time and must not violate any existing statute law. Precedents must be reported, maybe cited and may probably be followed.

5. NATURE OF PRECEDENT Precedent is purely Constitutive and in no Degree Abrogative, which means Judicial Decision can make a Law but cannot alter it. When there is Settled Rule of Law, it is the Duty of Judges to follow the Same. Function of Judges is limited to Supplying the Vacancies of Legal System. Filling up with new law the gaps that exist in old and supplementing the imperfectly developed body of legal doctrine. A Precedent can also be Disregarded in the Interest of Justice

6. METHODS OF JUDICIAL DECISIONS There are two Methods of Judicial Decisions:- Deductive Method: General Legal rule is already fixed and certain and same is applied in individual case by Judges. They are not required to use their brains and they have to just apply the law. Inductive Method: Judges have to start from a particular case and come to a general principle of law. Process is from Particular to General.

7. KINDS OF PRECEDENTS Authoritative and Persuasive: According to Salmond An Authoritative Precedent is one which Judges must follow whether they approve of it or not, they are legal sources of Law such as for example Decision of Superior Courts. A Persuasive Precedent is one which Judges are under no obligations to but which they will take into consideration, they are merely Historical such as for example Decision of Foreign Courts and Decision of other High Courts.

8. KINDS OF PRECEDENT (CONTD) Authoritative Precedents are of two types they are: Absolute and Conditional Precedents: in Absolutely Authoritative Precedents they have to be followed by Judges even if they do not approve of them. They are Entitled to Implicit Obedience. A Conditional Precedent can be disregarded by Dissenting or by Overruling. In the case of Overruling Precedent is Authoritatively pronounced to be wrong so that it cannot be followed in Future.

9. KINDS OF PRECEDENT (CONTD) Declaratory and Original Precedents: According to Salmond A Declaratory Precedent is one which is merely the Application of an already existing Rule of Law. Rule is Applied because it is already a Law. In case of Advanced Countries Declaratory Precedents are more numerous. An Original Precedent is one which creates and applies a new rule. It is law for the future because it is now applied. They alone develop the Law of the Country.

10. DOCTRINE OF STARE DECISIS Stare Decisis is a L atin term that means “to stand by things decided” It has been recognized by the Constitution of India. Article 141 provides that Law declared ny the Supreme Court of India shall be binding on all Courts on India.

11. DECISION SUB SILENTIO Sub Silentio means under silence. A situation when an action is forwarded without taking notice. It mostly refers to implied matters. In some case the Court may make no pronouncement on point regard to which there was no argument and yet decision of case as a whole assumes a decision with regard to particular point. They do not Constitute a Precedent.

12. DOCTRINE OF PROSPECTIVE OVERRULING Overruling literally means to overturn or set aside a precedent by expressly deciding that it should no longer be controlling law. Prospective means operative or effective in future. Construing an earlier decision in such a way that iw would have a binding effect to parties of the original suit yet changing the law applying it only prospectively to Future Cases

13. RATIO DECIDENDI In Latin it means “for reason” or “the foundation for” Ratio includes all the principles a court relies on they can be moral, social, or political. It is Binding in nature The Concrete Decision is binding between the parties to it but it is abstract Ratio Decidendi which alone has the force of law as regard the world at large.

14. OBITER DICTUM All that is said by Court by the way or statements of law which go beyond the requirements of a particular case. It lays down a rule that is unnecessary for the purpose in hand. These dicta have force of perusasive precedents only so judges are not bound to follow them. Obiter dicta help in growth of law as they help the cause of reform of law.

15. ADVANTAGES OF JUDICIAL PRECEDENTS Certainty Consistency Practicality Time Saving Flexibility Growth Precision

16. DISADVANTAGES OF JUDIICAL PRECEDENTS Bulky and Complexity Rigidity Slow Growth Illogical Distinctions Unpredictable