Doctrine of Precedent

Submitted to:
Mr. Sreenu M
Assistant Professor of Law

Submitted by:
Permanika Chuckal
VIth Semester
2012075

Damodaram Sanjivayya National Law University

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ACKNOWLEDGMENT

I would like to express my special appreciation and thanks to my advisor, my Faculty , who
has been a tremendous mentor for me. I would like to thank you for encouraging my research,
advice for the research has been priceless.
I would extend my thanks to the University Authorities, for providing me with is opportunity
to submit my project. I am indebted to all those who have helped me in developing this
project for their suggestion and guidance.

Permanika Chuckal
2012075

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TABLE Of CONTENTS
1.
2.
3.
4.
5.
6.

Aims and Objectives

4
Hypothesis
4
Research Methodology
4
Introduction
5
Doctrine Of Precedent In India A British Legacy
7
Constitutional Provisions Regarding Precedents Of The Supreme Court & Scope Of

Art. 141
7. . Elements of a Judgment
8. Doctrine of Stare Decisis
9. Importance of Dissenting Opinion
10. Supreme Court Precedents
11. Circumstances Weakening Precedents
12. Conclusion
13. Bibliography

RESEARCH METHODOLOGY
AIMS & OBJECTIVES

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9
10
11
11
12
14
16
17

The researcher had conducted this research on Precedents with reference to Indian Legal
System in order to learn the development of the concept of Precedent in Indian Legal system
and the roots of the same. Moreover to help the Laws students at beginners level to
understand the importance of precedents in our Legal System.
HYPOTHESES
Whether the British Legal System is the root for Doctrine of Precedent applicable in present
system.
Whether Supreme Court is bound to follow its own Precedents
Whether there are any circumstances wekaing Precedents or not
METHODOLOGY IN BRIEF
The present research study is mainly a doctrinal and analytical. Keeping this in view, the
researcher utilized the conventional method of using libraries consisting of primary sources.
As the study is doctrinal in nature, historical and doctrinal methods are adopted because it is
not possible to study purely by experimental method.
The researcher has also studied secondary sources i.e. judgments ,articles etc.

INTRODUCTION

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It is very difficult, if not impossible, to give a precise definition of Law. Many renowned
jurists have held forth their own definitions of the term Law. Law, in the broadest and most
comprehensive sense means a set of rules and norms and a standard of pattern of behaviour to
which every individual of the society has to conform to. Another often quoted, although not
widely believed, definition of Law is of that given by Austin according to which Law is the
command of the sovereign.
Sources of law may be classified into Legal and Historical sources as well as Formal and
Non-formal sources. Legal sources are those which are recognized as such by law itself.
Historical sources are those sources lacking formal recognition by law. The legal sources of
law are authoritative and are allowed by the law courts as of right. The historical sources of
law are un-authoritative. They influence more or less extensively the course of legal
development, but they speak with no authority. All rules of law have historical sources but
not all of them have legal sources.
In English legal system the doctrine, which brings together the past and the present is the
doctrine of judicial precedent, which predominant value is irrefutable. However, it is a
disputable question, whether the bias of the doctrine on the maintenance of the judicial
authority is accurate and contemporary. The nature of precedent can be described by putting
the words of Lord Denning in London tramways case: Rule of precedent is not a rule of law
at all, but a practice laid down by the court for its own guidance; and this practice can be
amended or altered. Thus, the precedent should be deemed as judicial practice rather then a
doctrine . However, the maintenance of this practice should be described in order to discuss
its value. The doctrine of precedent is usually defined by the Latin phrase, which has formed
the doctrine of precedent.

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TYPES OF PRECEDENTS
Binding precedent means a precedent or an existing law that courts are bound to follow. For
example, a lower court is bound to follow an applicable holding of a higher court in the same
jurisdiction. Such precedents are also termed authoritative precedent or binding authority.
Such precedent exists within common law jurisdictions that recognize judicially made law.
Generally, binding precedents follow the doctrine of stare decisis, which means stand by the
decision. Most states within the U.S. follow a common law system of law.
Condition precedent is one which must be performed either before a contract becomes
effective or which is to be performed by one party to an existing contract before the other
party is obligated to perform.
Original precedent means a precedent that creates and applies a new legal rule. An original
precedent is made when there is no previous judicial decision on a point of law. When the
court has to form an original precedent, a judge will come to their decision by analogy. That
is, by considering the cases that are nearest to it in principle. The decisions in the referred
cases are not binding on the court but they may be persuasive.
Persuasive precedent means precedent which a judge is not obliged to follow, but is of
importance in reaching a judgment, as opposed to a binding precedent. Persuasive precedents
assist the decision maker in determining a case. Decisions of lower courts and foreign courts
can be persuasive precedents.
A precedent is a previous instance or case which furnishes an example or rule for subsequent
conduct, and a pattern upon which subsequent conduct is based.
Elements of a precedent
1. Concrete decision binding upon parties
2. Abstract Principle binding as an authority on a subsequent judge.
Precedents may be divided in the following manner,
according to Salmond
1. Authoritative precedents a judge is bound to follow. legal sources of law.
2. Persuasive precedents judgments of foreign courts, judicia dicta and decisions of the
Privy Council when it decides appeal cases from colonies. historical sources of law.
The judgment of any Court, High Court or Supreme Court is a decision of the court in that
particular case. It would bind the parties on the principle of res judicata but so far as its
binding nature on other courts or other parties is concerned, it has been clearly laid down that
what is binding as a judicial precedent is ratio decidendi. The expression ratio decidendi
means the underlying principle, viz., the general reasons upon which the decision has been
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made. It has to be ascertained by analysis of the facts of the case and the process of reasoning
involving the major premise consisting of rule of law, either statutory or judge made and a
minor premise consisting of material facts of the case under consideration. If it is not clear, it
is not the duty of the court to spell it out with difficulty in order to be bound by it . There
cannot be a judicial precedent on a question of fact. It is only the legal principle laid down on
the basis of fact and the law that becomes judicial precedent.
DOCTRINE OF PRECEDENT IN INDIA A BRITISH LEGACY
Initially began because medieval judges considered themselves charged with the duty of
ascertaining and declaring and enforcing contemporary customs and usages. By the 18th
century, it became an integral part of the common law system. Lord Mansfield had
consolidated and reaffirmed the doctrine of judicial consistency, and declared Law does
not consist of particular cases, but of general principles. By the 19th century, Lord Tenterden
C.J. Decisions of our predecessors, the judges of former times, ought to be followed and
adopted unless we can see very clearly that they are erroneous, for otherwise there will be no
certainty in the administration of law. Prof. Holdsworth in the 20th century, A certain
element of conservation is needed, and the reservations with which the English system of
case law is received, enable the judges within fairly wide limits to apply to old precedents, a
process of selection and rejection which brings the law into conformity with modern
conditions. This is often expressed as the golden mean between too much flexibility and too
much rigidity.
Pre-Independence
According to S.212 of the Govt of India Act, 1935 Law laid down by Federal Court and
any judgment of the Privy Council is binding on all courts of British India, Privy Council was
supreme judicial authority.

Post-Independence

SC became the supreme judicial authority streamlined system of courts established.

Supreme Court
Binding on all courts in India.
Not bound by its own decisions, or decisions of PC or Federal Court.
High Courts.
Binding on all courts within its own jurisdiction
Only persuasive value for courts outside its own jurisdiction.
In case of conflict with decision of same court and bench of equal strength, referred to
a higher bench.

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Decisions of PC and federal court are binding as long as they dont conflict with

decisions of SC. Lower courts

Bound to follow decisions of higher courts in its own state, in preference
to high courts of other states.

CONSTITUTIONAL

PROVISIONS

REGARDING

PRECEDENTS

OF

THE

SUPREME COURT & SCOPE OF Art. 141

Art. 141 states, The law declared by the SC shall be binding on all courts within the territory
of India.The SC judgments as between the litigants are decisions, as to the nation, they are
declaratory of the law However, Art. 141 do not mean or imply that the law once declared by
the SC cannot be altered by a competent legislature. If, by an amendment the law is changed,
the amendment would not affect Art. 141 because the declaration itself would come to an end
with the change of the law. The SC declared, The court, as a wing of a state is itself a source
of law. The law is what the SC says it is. This famous statement of the court has been greatly
criticized as it gives excess power to the courts, and neglects the concept of separation of
powers.
The objective of this provision is to ensure that the SC may declare law or pass necessary
measures that are necessary to do complete justice. A minority judgment of the SC is not a
binding precedent, but being a judgment of a judge/judges of the highest court, it has great
persuasive value. However a decision is a precedent only when it decides a question of law
and not otherwise, decisions of the SC as to as to facts cannot be cited as precedents. The HC
in the name of interpreting the judgment of the SC cannot sit in appeal and modify it.
The SC should not make any pronouncement on any question which is not strictly necessary
for the disposal of the particular case before it.
.
In case of a conflict between two SC judgments by benches of equal strength, it has been held
that the later decision has to be followed, it having impliedly overruled the earlier decision.
However, if one of the decisions more lucidly explains the situation, while the other leaves it
open, the lucid decision has to be taken into account. This however, would depend upon the
facts of each individual case.

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When the SC, with deliberate intent of settling the law, pronounces upon a question, it would
be law under Art. 141. Once the law is declared, it is not possible to hang onto a contrary
view of the HC merely because it has not been specifically overruled by the SC.
However, it must be pointed out that the Supreme Court while interpreting Article 141
examined the scope of the words all courts in India and held that they do not include the
Supreme Court itself. Bengal Immunity Co. vs. State of Bihar1. But the Supreme Court also
will deviate from its earlier decisions only in exceptional cases. Such exceptions were laid
down by the Supreme Court in Union of India vs. Raghubir Singh2 in the following words :
The pronouncement of law by a Division Bench of the Supreme Court is binding on a
Division Bench of the same or a smaller number of judges and in order that such decision be
binding, it is not necessary that it should be a decision rendered by the full Court or a
Constitution Bench of the Supreme Court.
The Supreme Court is not bound by its own previous decision. Like all principles evolved by
man for the regulation of the social order the doctrine of binding precedent is circumscribed
in its governance by perceptible limitations limitations arising by reference to the need for,
readjustment in a changing society, a readjustment of legal norms demanded in a changed
social context. The court would, however, do well to ensure that although the new norm
chosen in response to the changed social climate represents a departure from the previously
ruling norm it must, nevertheless, carry within it the same principle of certainty, clarity and
stability.
The Supreme Court of India should not differ from its decision merely because a contrary
view appeared preferable. But if the previous decision is plainly erroneous, there is a duty of
the court to say so and not perpetuate the mistake. A revision of its earlier decision would be
justified if there were compelling and substantial reasons to do so. The earlier decision may
be reviewed, for instance, (i) where an earlier relevant statutory provision had not been
brought to the notice of the court, or (ii) if a vital point was not considered.
ELEMENTS OF A JUDGMENT RATIO DECIDENDI AND OBITER DICTA

1 (1955) 2 SCR 603

2 (1989) 178 ITR 548 (SC)
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The dictionary meaning of this Latin expression, is the rule of law on which a judicial
decision is made, or reason for deciding.
The ratio decidendi of a case is the principle of law on which a decision is based. When a
judge delivers judgement in a case he outlines the facts which he finds have been proved on
the evidence. Then he applies the law to those facts and arrives at a decision, for which he
gives the reason (ratio decidendi).
Every decision has 3 basic postulates

Findings of facts both direct and inferential

Statement of principles applicable to the legal problems as disclosed by facts
Judgment based on the combined effect of the above.

To consider the ratio decidendi of a case, the SC has to ascertain the principle upon which it
was decided. This is sometimes difficult in cases where divergent views are expressed by
different judges, but eventually the final decision is taken. A decision is binding not because
of its conclusion, but in regard to its ratio and the principle laid down therein. General
statements made beyond the ratio decidendi have mere persuasive value only.
A case is only an authority for what it decides, and not from what logically follows from it.
Although the decidendi can be applied to similar cases on basis of fact and law, the SC has
said that care must be taken to ensure that it is not applied mechanically.
Obiter dicta is a judges expression of opinion uttered in court, or while giving judgment, but
not essential to the decision and not part of the ratio decidendi. It also means an incidental
remark, or something said in passing. Normally, even an obiter dictum is expected to be
obeyed and followed. The obiter dicta of the SC are entitled to considerable weight.
However, the weight accorded to dicta varies with the type of dictum. Mere casual
expressions carry no weight at all. Not every passing expression of a judge, no matter how
eminent cannot be treated as a having the weight of authority. In some cases, the obiter dicta
of the court will have mere recommendatory effect, and the government or parties to the case
are not bound by them.
In India, it has been held by the Bombay HC, that the obiter dicta of the SC were binding on
all courts in India, on the ground that if the highest court of appeal had applied its mind and
decided a question, judicial discipline required that the decision should be followed.

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In England obiter dicta are not binding on any court.

DOCTRINE OF STARE DECISIS
The dictionary meaning of this phrase is the legal principle of determining points in
litigation according to precedent
The doctrine of stare decisis is invoked when the reversal of a decision, followed for a
considerable length of time, is likely to seriously embarrass those who had, relying upon its
particular interpretation of a statute, would find themselves frustrated by a different
interpretation. The court should as far as possible stick to the doctrine of stare decisis. One of
the chief reasons is that a matter that has once been fully argued and decided should not be
allowed to be reopened.
However, this is not a universal command. If the rule were to be followed blindly, it would
stunt change, and the growth of society. Where public interest is invoked, and where the
question is one of constitutional construction, the doctrine may be departed from.
The important principles in reconsidering the decisions of the SC were set out in the Bengal
Immunity case . The SC said there is nothing to prevent the SC from departing from a
previous decision if it is convinced of its error and its baneful effect on the general interest of
the public. However, this power of review must be exercised with due care and caution and
only for advancing public well-being.

IMPORTANCE OF DISSENTING JUDGEMENTS

The importance of dissenting judgements was discussed in detail in the English case of Smith
v. Central Asbestos Co. Ltd (also called the Dodds case) , and later in the case of In Re
Harper v. NCB . In the Dodds case, Lord Denning stated that We can only rely upon the
reasoning which the majority relied upon to deliver the judgment. We cannot use the
reasoning of the minority, because it must be wrong, as they have come to the wrong
judgment. The reason behind this is that, a dissenting judgment valuable and important,
though it may cannot count as part of the ratio, for it played no part in the courts reaching
their decision. This opinion of Lord Denning as been greatly criticised.

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We adopt a different principle in India, regarding the importance of dissenting judgments.

Art. 145 of the Constitution clearly gives judges the power to differ from the majority and
deliver their own judgment, while a number of cases through the years have established that
although dissenting judgments are not binding upon the court, they have great persuasive
value.
When there is only one question before the Court, where the judges agree on a general
principle of law, but differ as to its specific application in the case, the ratio of the case must
be identified and that alone is binding.
In the Delhi Laws case, several kinds of delegation was upheld by the judges, but no principle
could be deduced from it as all the judges delivered different opinions. If a pattern could be
identified from such a case, that alone would be binding in subsequent cases.
The importance of dissenting judgments is best summed up by the following lines in the case
where the court held, While it is regrettable that judges may not always agree, it is better
that their independence should be maintained and recognized, than that unanimity should be
secured through sacrifice. A dissent in the court of last resort is an appeal to the brooding
spirit of the law, to the intelligence of a future day, when a later decision may possibly correct
the error which the dissenting judge believes the court to have made. Dissenting judgments
thus can always be used for persuasive value.

LANDMARK CASES WHERE THE SUPREME COURT HAS LAID DOWN NEW
GUIDING PRINCIPLES

Vishaka case3
The SC laid down guidelines for the prevention of sexual harassment of women
at the workplace and recommended that the govt enact a law for the same. Such
law having not yet come into force, till date, the guidelines given by the court in
this case are being considered as having the force of legislation.

M.C.Mehta v. UOI4

3 AIR 1997 SC 3011

4 AIR 1987 SC 1086
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The court laid down a new rule of strict and absolute liabiilty in respect of
hazardous and inherently dangereous activities. This concept was initially born

in England in the case of Rylands v. Fletcher .

Vineet Narain v. UOI5
The SC laid down Seven principles governing public life. The Court also gave
directions for the setting up of the Central Vigilance Commission to govern the
working of the CBI.

CIRCUMSTANCES DESTROYING OR WEAKENING THE BINDING FORCE OF

PRECEDENTS.
ABROGATED DECISIONS: A decision ceases to be binding if a statute or statutory rule is
inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court.
IGNORANCE OF STATUTE: A precedent is not binding if it was rendered in ignorance of a
statute or rule having the force of statute i.e. delegated legislation. Such decisions are per
incuriam and not binding. The mere fact that the earlier court misconstrued a statute or
ignored a rule of construction is no ground for impugning the authority of precedent. It is
clear law that a precedent loses its binding force if the court that decided it overlooked an
inconsistent decision of a higher court . Such decisions are also per incuriam. A court is not
bound by its own decision that is in conflict with one another. If the new decision is in
conflict with the old, it is given per incur-am and is not binding on later courts. In this
circumstances the rule is that where there are previous inconsistent decisions of its own, the
court is free to follow either i.e. earlier or later. To come within the category of per incur-am
it must be shown not only that the decision involved some manifest slip or error but also that
to leave the decision standing would be likely, inter alia, to produce serious inconvenience in
the administration of justice or significant injustice to citizens.
SUB SILENTIO: Precedents sub silentio or not argued: A decision passes sub silentio when
the particular point of law involved in decision is not perceived by the court or present to its
mind. When a decision is on point A upon which judgement is pronounced but there was
another point B on which also court ought to have pronounced before deciding he issue in
5 (1998) 1 SCC 226
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favour of the party, but that was not argued or considered by the Court. In such circumstances
although point B was logically involved in the facts and although the case had a specific out
come , the point B is said to pass sub silentio.[ Gerard v/s Worth of Pipers Ltd . It is rightly
said that an hundred precedent sub silentio are not material. Where a judgement is given
without the losing parties having been represented , there is no assurance that all the relevant
consideration have been brought to the notice of the court and consequently the decision
ought not be regarded as absolute authority even if it does not fall within sub silentio rule. A
precedent is not destroyed merely because it was badly argued , inadequately considered and
fallaciously reasoned. Total absence of argument vitiates the precedent. A decision is an
authority only for what it actually decides and not for what may logically or remotely follows
from it.
PRINCIPLES OF PROSPECTIVE OVERRULING.
Prospective overruling implies that an earlier decision of the same issue shall not be disturbed
till the date of the later judgement. It is resorted to mould relief claimed to meet the justice of
the case. It means that relief though the Petitioner may be entitled to in law because of
interpretation of the law made by the Supreme Court, the same shall not be applicable to past
transactions. Frequently such situations arise in service matters or tax matters where in the
person already appointed for a long time based on interpretation of a law by the Apex Court
in its earlier judgment, but the same is overruled in the later judgement, and therefore the
person already in public employment need not be directed to vacate the post or the tax
already imposed and collected is not directed to be refunded. In normal course, a law
declared by supreme court is the law assumed to be from the date of inception and
prospective overruling is only an exception when the Supreme Court itself make the
applicability of the ration of the judgement prospectively to do complete justice to the parties
or to avoid chaos. It is therefore necessary that if a law is to be made applicable
prospectively, the same is required to be so declared in the judgement when it is delivered.
M.A. Murthy v/s State of Karnataka. If supreme court does not exercise such discretion to
hold that the law declared by it would operate only prospectively, High Court can not of its
own do so. Sarwan Kumar v/s Madanlal Agarwal. When a law enacted without legislative
competence remains on the statute book till a court of competent jurisdiction adjudicates
thereon and declares it to be void. It is only then that it can be said that it is non est for all
purposes. In case of imposts or levies by a legislative action which is subsequently declared
to be unconstitutional by making the same applicable prospectively, the court may deny
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refund of any taxes already collected and at the same time the taxes not collected though
demanded can be ordered as not be collected. Thus court may hold that State shall not be
liable for refund of the taxes or levies already collected nor it shall be entitled to collect the
same from the persons though demanded under impugned legislation. Somaiya Organics
(India) Ltd., v/s State of U.P.

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CONCLUSION
In a democracy, legislation is largely a matter of Give and Take, of striking a working
balance between conflicting interests. Its essence is compromise which is apt to find express
in terms that are more suggestive than exact, more calculated to avoid precise commitments
than to embrace them. This along with the imprecision of the language and the limitations of
human foresight, is the judges burden. But an apparently wide discretionary power arising in
a sensitive sphere should often be made subject to much stricter judicial self-restraint.
Precedent has a very important role in the common law. It ensures certainty and consistency
and logical progression and development in the law. At the same time it can be rigid and also
complex what is the law on a subject may be very difficult to find or to state as it is
spread across many cases. So, many countries (especially in Continental Europe) prefer a
codified system in which laws are set out in legislation and cases which apply them may be
illustrative but do not become binding. The law is also easier to find and to state and is
rationally prospective rather than based on the chance event of litigation, which may give rise
to

laws

based

on

extreme

or

unusual

situations

or

unevenly argued

cases.

As a matter of degree, the Courts tend to attach greater weight to their own previous
decisions than to the views of text writers. A judicial precedent speaks with authority. It is an
evidence of law and source of it. The authority of precedents is great because of power, skill
and professional reputation of judges who make them. Judicial precedent means the process
whereby judges follow previously decided cases where the facts are of sufficient similarity.
The doctrine of judicial precedent involves an application of the principle of stare decisis,
which is Latin for let the decision stand i.e. to stand by the decided. In practice, this means
that inferior courts are bound to apply the legal principles set down by superior courts in
earlier cases. Judge made law via the cases upon which they decide is one of the oldest
sources

of

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law.

This

provides

in

the

law

consistency

and

predictability.

BIBLIOGRAPHY
Books Referred
Lakshiminath A., Precedent in Indian Law, (Eastern Book Company, 3rd Edn)2009.
Mahajan V.D., Jurisprudence and Legal Theory, (Eastern Book Compant, 5th Edn)2008.
Websites referred
www.judis.nic.in
www.wikipedia.org
www.lawyersclubindia.com
www.answers.com
www.etymonline.com
Articles Referred
Vinay Monats , Judicial Precedents

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