Precedent as a Source of Law

Precedent

Precedent refers to a previously decided case which serves as an authority for deciding future cases involving identical or similar facts, legal issues or disputes[1]. It is one of the most important sources of law in common law countries like India, England, USA etc. The doctrine of stare decisis forms the basis of precedent in these countries which means that courts must follow previous judicial decisions when the same points arise again in litigation[2].

Precedent plays a pivotal role in ensuring certainty and consistency in the application of law. When courts follow precedents, it promotes predictability and allows parties to structure their activities knowing the legality and consequences. The expectation that courts will treat similar cases alike, and not decide cases randomly, is fundamental to rule of law[3]. At the same time, precedent allows flexibility in law by allowing judges to distinguish between factual scenarios and lay down new principles. Precedents are therefore considered as an important source of law. Through the gradual process of distinguishing between facts, precedent enables orderly development of law[4].

Definition and Concept of Precedent

Various jurists have defined precedent as follows:

1. Salmond: Precedent in the loose sense includes merely reported case law which may be cited and followed by courts. In its strict sense, it refers to binding case law which courts must follow[5].
2. Keeton: Precedent refers to a judicial decision to which authority has been attached[6].
3. Gray: Precedent includes everything said or done by courts which may furnish a rule for subsequent practice[7].

Simply put, a precedent refers to the previous decision of a court on a question of law which will guide the subsequent courts in deciding factually identical cases. The underlying legal principle on which the case was decided becomes the precedent.

In India, precedents can be classified on the following bases:

1. Declaratory and Original Precedents: Declaratory precedents merely apply existing principles of law to new sets of facts. Original precedents lay down new principles and create new law[8].
2. Persuasive and Authoritative Precedents: Precedent may be authoritative or persuasive. Authoritative precedents are binding on lower courts in the hierarchy and have to be necessarily followed. Persuasive precedents are those which lower courts may consider but are not bound to follow[9].
3. Conditionally and Absolutely Authoritative Precedents: Absolutely authoritative precedents are completely binding on lower courts and have to be followed. Conditionally authoritative precedents of higher courts can be disregarded in certain circumstances[10].

Doctrine of Precedent in India

The modern doctrine of binding precedent originated in England and became part of the Indian legal system through the colonial rule. Precedent is a major source of law in India and the doctrine of stare decisis is well established. The hierarchy of courts and binding force of precedent can be understood as follows:

1. Supreme Court precedents are binding on all courts in India under Article 141 of the Constitution[11]. However, the Supreme Court is not bound by its own decisions and larger benches can overrule decisions of smaller benches[12].
2. Decisions of High Courts are binding on subordinate courts under their jurisdiction[13]. However, High Courts are bound by decisions of the Supreme Court[14].
3. Single judge benches of High Courts are bound by Division Bench and Full Bench decisions.
4. Decisions of coordinate benches (benches of equal strength) of a High Court have only persuasive value and are not binding[15].
5. Foreign precedents have only persuasive value and are not binding on Indian courts[16].

Therefore, the cardinal principle is that courts lower in the hierarchy are bound by precedents of courts above them. The Supreme Court being the apex court is not bound by its own decisions. High Courts though superior to district courts are still bound by the Supreme Court. This structured system of courts ensures certainty and consistency in Indian law.

Evolution of the Concept in India

During the British rule, the Federal Court and Privy Council were the highest appellate authorities in India. Post-independence, the Supreme Court replaced them at the apex. The Supreme Court has deviated from colonial era decisions on various aspects to suit India’s needs and goals as a democracy. For instance, in Kesavananda Bharati case[17], the Supreme Court rejected unfettered parliament sovereignty by upholding basic features of the Constitution. In Raja Ram Pal case [18], the Supreme Court overruled its previous decisions which had upheld parliamentary privileges as paramount.

Therefore, stare decisis doctrine has allowed structured development of jurisprudence by courts distinguishing between precedents and laying down new principles as per contemporary requirements of society, justice and the Constitution[19]. At the same time, it has ensured stability by applying principles already settled as precedent to subsequent cases.

Limitations on Binding Force of Precedent

While precedents are authoritative, courts can refuse to follow them in certain exceptional situations including –

1. Where the precedent is erroneous and patently illegal[20].
2. Where a precedent has been rendered ‘per incuriam’, i.e. decided without considering a relevant statutory provision or binding judgment[21].
3. Where a precedent is contrary to public policy and social needs of the community[22].
4. Where the precedent clashes with principles of natural justice and human rights[23].
5. Where factual circumstances have changed requiring fresh adjudication of law[24].

Therefore, binding force of precedent is not absolute. Courts have used the above techniques to overrule precedents and avoid injustice or absurdity. This lends dynamicism and sensitiveness to law[25].

Forms and Elements of Precedent

Authoritative precedents contain two key elements[26]:

1. Ratio Decidendi: The ratio decidendi, or reason for deciding, refers to the binding principle of law on which a decision is based. It is the legal premise that is determinative of the outcome in a case. It is binding on lower courts in subsequent cases.
2. Obiter Dicta: Obiter dicta refers to opinions expressed by a judge that are not necessary for deciding the case and do not form a binding ratio. Though not binding, obiter may be regarded as highly persuasive.

Identification of ratio from obiter can be complex. Various theories exist in this regard[27]:

1. Classical Theory – Only ratio constitutes precedent and not obiter. It requires isolating the ratio through technical reasoning.
2. Goodhart’s Theory – Precedent extends to both ratio and obiter that relates to the main issue decided by the judge.
3. Salmond’s Theory – The entire judgment except conjectures or absurdities represents ratio and constitutes binding precedent.
4. Stone’s Theory – The reason for actual decision constitutes ratio. Even alternative reasons given by a judge represent ratio.

Importance of Precedent as a Source of Law

Precedent as a source of law has the following advantages[28]:

1. Promotes Certainty and Consistency: Followed diligently, precedents lead to certainty in application of law. Judges are bound by principles settled earlier leading to consistent adjudication.
2. Facilitates Orderly Growth of Law: Gradual interpretation and expansion of principles through precedent allows steady development of law.
3. Enhances Faith in Judiciary: People’s faith in the administration of justice increases when judiciary follows consistency through precedents.
4. Saves Judicial Time and Effort: Following precedents makes the task of judges easier. They need not approach matters afresh each time.
5. Adaptable Source of Law: Flexible use of precedents by distinguishing cases allows law to keep pace with changing circumstances. Judges create new precedents or overrule existing ones based on society’s needs.
6. Accessible to People: Reported judgments containing precedents are available to the public through law reports enabling access to settled principles of law.

Critical Evaluation – Drawbacks of Precedent as a Source of Law

Despite its advantages, the doctrine of precedent has been criticized on the following grounds[29]:

1. Persistence of Bad Law: Absolutely binding precedents perpetuate bad law even if later benches disagree with it. Justice is sacrificed before mere consistency.
2. Judge Made Law Seen as Undemocratic: Development of law solely by judges rather than legislature is seen by some as undemocratic. Principles laid down by precedents may not reflect will of the people.
3. Hinders Progress: Rigid adherence to precedent may not suit changing circumstances and hinder social progress.
4. Legal Positivism May Result: Judges may apply precedents mechanically without regard to society’s current requirements leading to injustice.
5. Difficulty in Ascertaining Ratio: Process of determining ratio decidendi is complex and judges themselves may differ in approaches. This creates confusion.
6. Volume of Case Law: In modern times, precedents are so many that research takes considerable time, effort and costs.
7. Need for Litigation: For new precedents to emerge, fresh litigation must ensue involving time and costs. Direct legislation is faster.
8. Anomalies Due to Overruling: When precedents are overruled prospectively, anomalies arise in dealing with pending cases.

Conclusion

On the whole, precedent has proved to be an indispensable and dynamic source of law in India. Through precedent, courts have incrementally adapted and modified principles to changing societal conditions and advanced goals like social justice, equity and human rights. While ensuring stability and predictability in many spheres through stare decisis, the judiciary has also used techniques like overruling and per incuriam to prevent unjust adherence to poorly reasoned precedents. Criticisms regarding persistence of bad precedents, positivism, complexities etc. are not compelling enough to dilute the strengths of precedent as a legal source. With judicial discipline and wisdom, precedent promises to nurture as a robust yet flexible fountainhead of law attuned to evolving realities.

References

[1] P Ramanatha Aiyar, Advance Law Lexicon, 4th Edition, Vol. 3 (Wadhwa Nagpur, 2009)

[2] Bryan A. Garner et al., The Law of Judicial Precedent (Thomson West, 2016).

[3] Id., at 31.

[4] Justice R.V. Raveendran, Precedent in India (Supreme Court of India, 2009).

[5] John Salmond, Jurisprudence (Sweet and Maxwell, 1966).

[6] GW Keeton, The Elementary Principles of Jurisprudence (London: Pitman & Sons, 1949).

[7] John Chipman Gray, The Nature and Sources of the Law (The Banks Law Publishing Co., 1909).

[8] The Law of Judicial Precedent, supra note 2.

[9] P.J. Fitzgerald, Salmond on Jurisprudence (Sweet and Maxwell, 1966).

[10] The Law of Judicial Precedent, supra note 2.

[11] INDIA CONST. art. 141.

[12] Central Board of Dawoodi Bohra Community v State of Maharashtra, (2005) 2 SCC 673.

[13] Shri Sachidanand Pandey v State of West Bengal, (1987) 2 SCC 295.

[14] M. Thangappan v Secretary, (1989) 2 MLJ 45.

[15] Kunhayammed v State of Kerala, (2000) 6 SCC 359.

[16] Polaram v State, AIR 1964 Raj 229.

[17] Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.

[18] Raja Ram Pal v Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184.

[19] Justice R.V. Raveendran, supra note 4.

[20] Bengal Immunity Co. Ltd. v State of Bihar, AIR 1955 SC 661.

[21] State of Uttar Pradesh v Synthetics, (1991) 4 SCC 139.

[22] N. Nagendra Rao & Co. v State of AP, AIR 1994 SC 2663.

[23] Rattan Arya v State of Tamil Nadu, AIR 1986 SC 844.

[24] John Vallamattom v Union of India, (2003) 6 SCC 611.

[25] P. J. Fitzgerald, supra note 9.

[26] Rupert Cross & J.W. Harris, Precedent in English Law (Oxford: Clarendon Press, 1991).

[27] Id.

[28] P. Ramanatha Aiyar, supra note 1.

[29] Justice R.P. Sethi, Doctrine of Precedent in India (Eastern Book Company, 2008).