Precedent as a source of Law

Precedent as a source of law in Indian Context

1. PRECEDENT AS A SOURCE OF LAW By- Mohit Yadav Pratik Jain

2. Precedent is the reasoning behind a judge’s decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar. As Defined in Black’s Law Dictionary, "precedent" is a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases( Black’s Law Dictionary P 1059 5th edition 1979) What is a precedent

3. Binding Precedent: A binding precedent is a legal principle established in a higher court that must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases. eg in Maharashtra a judge of the high Court must follow the decisions of judges in the Supreme Court. For a precedent to be binding on a particular case, the precedent must be: From the same hierarchy of courts From a superior court-one that is higher in the hierarchy The decisions of the Supreme Court (the highest court in INDIA) are binding on all other Indian courts. However, the Supreme Court is not bound by its own previous decisions. Kinds of precedents

4. A Persuasive Precedent Are not binding on courts. They are seen more as ‘convincing’ argument, but one that does not have to be followed because it is not binding. Precedents considered to be persuasive but not binding are: The decision of a court in another hierarchy-such as another state or country. Ratio decidendi of courts at the same level; for example, highCourt judge would not be bound by a decision of another highCourt judge Ratio decidiendi of inferior (lower) courts in the same hierarchy; for example a high Court judge would not be bound the decision of a judge in a previous case Obiter dicta statements of a court in the same hierarchy or in another hierarchy. Although not binding, persuasive precedents may be seen as a point of reference. They give an indication of how other judges think the law should be . E.g. Donoghue v Stevenson (1932) The British case Donoghue v Stevenson was used as persuasive precedent for the Indian cases , which established the law of negligence in India.

5. When they are deciding on a new issue (novel case) brought before them or when a previous principle of law requires expansion to apply to a new situation. Statutory interpretation- interpreting the words in acts of parliament. What are the two ways that judges make law?

6. Latin phrase which means to stand by decided cases. Article 141 - All the subordinate courts are bound to follow what is laid down by the supreme court. Doctrine of stare decisis

7. If it is reversed or overruled by a higher court. When it is inconsistent with the earlier decision of the same rank. When it is rendered per in curium. When it does not state any reason for the judgment. When does a precedent ceases to have a binding force

8. Distinguishing a previous precedent Where there is a binding precedent, a lower court may avoid using the precedent established by a higher court if it finds a significant difference in the material facts of the original case and the case currently being considered. The precedent is not followed because the judge can distinguish the new case from the previous one. In this way the lower court can avoid using the set precedent. Ways judges can develop precedent or avoid following an earlier decision (precedent).

9. The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. “Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored  inthe  assumption that one person is the legal equal of any other. Precedent also enhances efficiency. Advantages of using preceedent as a source of law

10. 1.If there are more than one ratios laid down in a judgment then which ratio is to be considered a precedent. 2. There are numerous case laws and hence it is a tedious task to recognize the relevant ones. 3. Unless a case in this regard does not comes to the court, legal position can’t be given on the same. Disadvantages of precedent

11. Judicial precedents are indeed a good source of law. saves the time of the courts and hence helps in ensuring effective justice delivery system. It cannot be denied precedents are one of the most important sources of law. But with time it will become more and more difficult to keep a track all such judicial precedent. So some mechanism will have to be developed to make good provisions for recording of precedence. Conclusion