Precedent As A Source of Law

PRECEDENT AS A SOURCE
OF LAW
MODULE II
LEGAL METHODS
BAL / BBL 265
INTRODUCTION
● Precedent has been defined as ‘Judge-made law’,
‘Judiciary’s law’, ‘Judicial pronouncements of the
court which carry with them certain authority having
a binding force.’
● Judicial precedent is purely constitutive in nature

and never abrogative.
● Precedent can create law but cannot abolish it. the

judges are not at liberty to substitute their own
views where there is a settled principle of law. They
can only fill in the gaps in the legal system and
remove imperfections in the existing law.
DO JUDGES MAKE LAW?
● there are two contrary views on this

point.
● the first view is that the judges only

declare the existing law;
● the second view is that they make

law.
DECLARATORY THEORY
● Judges are no more than discoverers of law;
● They discover the law on a particular point and

declare it;
● A judge is sworn to determine, according to known

laws and customs of the land; not delegated to
pronounce a new law but to maintain and explain
the old one.
● “There is no such thing as judge made law, for the
judges do not make the law though they have to
frequently apply the existing law to circumstances as to
which it has not been previously been authoritatively laid
down that such law is applicable.”
● The courts sit to administer the law; not to make new

law if there are cases not provided for.
JUDGES AS LAW-MAKERS
● The points which the judges decide in cases
of first impression is a distinct contribution
to the existing law;
● Prof. Gray goes to the extent of saying that

judges alone are makers of law;
● Justice holmes without hesitation recognise

that judges do legislate.
COURTS ARE BOUND IN TWO WAYS:
higher and like cases

Courts are decided
bind alike
lower
courts
GENERAL RULES FOR
APPLICATIONS OF PRECEDENTS
● Each court is bound by the decision of the
courts above it.
● Supreme court decisions are not binding

upon the supreme court;
● Full bench of a high court can reconsider a

decision of an earlier full bench of the same
high court, if the second full bench has more
judges.
● If a full bench of a high court was
allowed to reconsider a prior full bench
decision merely because the later full
bench consisted of more judges, then
it is possible that a bench of seven by
a majority of 4:3, could override a
unanimous decision of a five judges
bench.
KINDS OF PRECDENTS
● Authoritative and persuasive precedent;
● An authoritative precedent is one which has a

binding force and the judge must follow it whether
he approves it or not. Authoritative precedents
are the decisions of superior courts of justice
which are binding on subordinate courts.
● PERSUASIVE PRECEDENTS IS ONE WHICH
THE JUDGES ARE UNDER NO OBLIGATION
TO FOLLOW BUT WHICH THEY MAY TAKE
INTO CONSIDERATION.
● FOREIGN JUDGEMENTS;
● JUDICIAL DICTA (OBITER DICTA);
● AUTHORITATIVE TEXT BOOKS AND
COMMENTARIES;
● THE PERSUASIVE PRECEDENTS CAN MERELY

PERSUADE THE JUDGE BUT IT IS UPTO THE
JUDGE TO FOLLOW THEM OR NOT.
CIRCUMSTANCES WHICH DESTROY
THE BINDING FORCE OF JUDICIAL
PRECEDENTS
● IGNORANCE OF STATUTE:
A PRECEDENT IS NOT BINDING IF IT IS RENDERED
IN IGNORANCE OF ANY STATUTE OR ANY OTHER
RULE HAVING THE FORCE OF STATUTE.
● INCONSISTENCY BETWEEN EARLIER

DECISION OF HIGHER COURT:
A PRECEDENT LOSES ITS BINDING FORCE
COMPLETELY, IF IT IS INCONSISTENT WITH THE
DECISION OF A HIGHER COURT.
● INCONSISTENCY BETWEEN EARLIER DECISION OF THE
COURT OF THE SAME RANK:
A COURT IS NOT BOUND BY ITS OWN EARLIER DECISIONS WHICH ARE
CONFLICTING WITH EACH OTHER.
● DECISION OF EQUALLY DIVIDED COURTS:
● ABROGATED DECISIONS:
A DECISION CEASES TO BE BINDING IF STATUTE INCONSISTENT WITH IT
IS SUBSEQUENTLY ENACTED. SO ALSO IT CEASES TO BE BINDING IF IT IS
REVERSED, OVERRULED OR ABROGATED. IF A DECISION IS WRONG OR
IRRATIONAL IT MAY BE ABROGATED BY A SUBSEQUENT ENACTMENT OR A
DECISION OF A HIGHER COURT. THIS IS EXPRESSED IN LATIN MAXIM,
“cessante ratione legis cessat ipsa lex”.
● ERRONEOUS DECISIONS:
THE DECISIONS WHICH ARE FOUNDED ON MISCONCEIVED PRINCIPLES
OR IN CONFLICT WITH FUNDAMENTAL PRINCIPLES OF LAW LOSE THEIR
BINDING FORCE TOTALLY.
● PRECEDENT SUB SILENTIO:

A DECISION IS SAID TO BE SUB SILENTIO WHEN THE POINT OF LAW
INVOLVED IN IT IS NOT FULLY ARGUED OR NOT PERCEIVED BY THE
COURT.
IN SOME CASES THE COURT MAY MAKE NO PROUNCEMENT ON A POINT

REGARDING WHICH THERE WAS NO ARGUMENT AND YET THE DECISION
OF THE CASE AS A WHOLE ASSUMES A DECISION WITH REGARD TO A
PARTICULAR POINT. SUCH DECISIONS ARE SAID TO BE SUB SILENTIO
AND THEY DO NOT CONSTITUTE A PRECEDENT.
DECISIONS REACHED PER INCURIAM
● A DECISION GIVEN PER INCURIAM IS A CASE IN WHICH A STATUTE OR
RULE HAVING STATUTORY EFFECT IS NOT BROUGHT TO THE ATTENTION
OF THE COURT;
● “THE ONLY CASES IN WHICH DECISIONS SHOULD BE HELD TO HAVE

BEEN GIVEN PER INCURIAM ARE THOSE OF DECISIONS GIVEN IN
IGNORANCE OR FORGETFULNESS OF SOME CONSISTENT STATUTORY
PROVISION OR OF SOME AUTHORITY BINDING ON THE COURT
CONCERNED”
● SUCH A DECISION WOULD ONLY BE OVERRULED WHEN THE LATER

COURT IS SATISFIED THAT THE EARLIER COURT WOULD HAVE DECIDED
THE CASE DIFFERENTLY HAD IT BEEN MADE AWARE OF THE RELEVANT
MATERIAL.
DOCTRINE OF STARE DECISIS
● “LET THE DECISION STAND IN ITS RIGHTFUL PLACE”;
● THIS IS AN ABBREVIATION OF THE LATIN PHRASE, STARE

DECISIS ET NON QUIETA MOVERE (TO STAND BY PRECEDENTS
AND NOT TO DISTURB SETTLED POINTS).
● GENERALLY SPEAKING STARE DECISIS MEANS THAT A POINT OF

LAW ONCE SETTLED BY A JUDICIAL DECISION IS NOT TO BE
DEPARTED FROM. IN OTHER WORDS, AN EARLIER CASE WHEN
DIRECTLY IN POINT MUST BE FOLLOWED IN A SUBSEQUENT CASE.
● THE UNDERLYING LOGIC OF THIS DOCTRINE IS
TO MAINTAIN CONSISTENCY AND AVOID
UNCERTAINTY.
● THE GUIDING PRINCIPLE IS THAT A VIEW

WHICH HAS HELD THE FIELD FOR A LONG TIME
SHOULD NOT BE DISTURBED ONLY BECAUSE
ANOTHER VIEW IS POSSIBLE.
THE GENERAL PRINCIPLES ON WHICH
THE DOCTRINE OF STARE DECISIS IS
BASED
● EACH COURT IS ABSOLUTELY BOUND BY THE
DECISIONS OF THE COURT ABOVE IT.
● THE DECISION OF ONE HIGH COURT IS NOT

BINDING ON ANY OTHER HIGH COURT AND IT HAS
ONLY A PERSUASIVE VALUE.
● A SINGLE JUDGE BENCH IS BOUND BY THE

DECISION OF A DIVISION BENCH OF THE SAME
HIGH COURT, BUT A DIVISION BENCH IS NOT
BOUND TO FOLLOW A DECISION OF A SINGLE
JUDGE BENCH OF THE SAME HIGH COURT
KRISHNA SWAMY V. UNION OF INDIA
AIR 1993 SC 1407
● “THE DECISION OF THIS COURT IS THE LAST WORD ON
THE INTERPRETATION OF THE CONSTITUTION AND THE
LAW OF LAND UNDER ART. 141…….. THE LAW LAID
DOWN BY THIS COURT OPERATES AS A PRECEDENT AND
THUS NEEDS STABILITY, CONTINUITY AND CERTAINTY.
ADHERENCE TO PRECEDENTS i.e. STARE DECISIS IS
USUALLY A WISE POLICY FOR RULE OF LAW UNLESS
THEERE ARE COMPELLING AND SUBSTANTIAL REASONS
FOR ITS RECONSIDERATION IN LARGER PUBLIC
INTEREST.”
SUGANTHI SURESH KUMAR
V.
JAGDEESHAN
(2002) 2 SCC 420
● THE SUPREME COURT SAID THAT IT IS IMPERMISSIBLE FOR

THE HIGH COURT TO OVERRULE THE DECISION OF THE APEX
COURT ON THE GROUND THAT SC LAID DOWN THE LEGAL
POSITION WITHOUT CONSIDERING ANY OTHER POINT.
● IT IS NOT ONLY A MATTER OF DISCIPLINE FOR THE HIGH

COURTS IN INDIA, IT IS THE MANDATE OF THE
CONSTITUTION AS PROVIDED IN ART. 141 THAT THE LAW
DECLARED BY SC SHALL BE BINDING ON ALL COURTS
WITHIN THE TERRITORY OF INDIA.
RATIO DECIDENDI
(‘REASON’ OR ‘RATIONALE FOR DECISION)’
● THE UNDERLYING PRINCIPLE OF A JUDICIAL DECISION WHICH
FORMS THE AUTHORITATIVE ELEMENT IS TERMED AS RATIO
DECIDENDI.
● A RATIO DECIDENDI IS A RULE OF LAW EXPRESSLY OR IMPLIEDLY

TREATED BY THE JUDGE AS A NECESSARY STEP IN REACHING HIS
CONCLUSION.
● THE PRINCIPLE WHICH THE DECISION LAYS DOWN IN RULE OF LAW

FOR WHICH IT BECOMES AN AUTHORITY .
ILLUSTRATIONS
● DONOUGHE V. STEVENSON (1932) AC 562:
THE PLAINTIFF WAS ENTITLED FOR DAMAGES CAUSED TO HER

DUE TO DECOMPOSED SNAIL INSIDE THE GINGER-BEER
WHICH WAS BEING SOLD IN OPAQUE BOTTLE
MANUFACTURER IS LIABLE TO CONSUMER IN MANUFACTURING

THE GOODS WHICH IS OF SUCH NATURE THAT IT IS
INCAPABLE OF INTERMEDIATE INSPECTION BY RETAILER
BRIDGES V HAWKESWORTH
(1851) 21 LJ QB 75
● CUSTOMER FOUND SOME MONEY ON
THE FLOOR OF A SHOP. COURT APPLIED
THE RULE OF ‘FINDERS-KEEPERS’ AND
AWARDED POSSESSION OF THE MONEY
TO HIM RATHER THAN TO THE SHOP
KEEPER.
● FINDER OF THE GOODS IS THE KEEPER,

i.e., HAS RIGHT TO POSSESSION OVER
IT

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PRECEDENT AS A SOURCE

● Judicial precedent is purely constitutive in nature

● Precedent can create law but cannot abolish it. the

● there are two contrary views on this

● the first view is that the judges only

● the second view is that they make

● Judges are no more than discoverers of law;

● They discover the law on a particular point and

● A judge is sworn to determine, according to known

● The courts sit to administer the law; not to make new

● Prof. Gray goes to the extent of saying that

● Justice holmes without hesitation recognise

higher and like cases

● Supreme court decisions are not binding

● Full bench of a high court can reconsider a

● Authoritative and persuasive precedent;

● An authoritative precedent is one which has a

● THE PERSUASIVE PRECEDENTS CAN MERELY

● INCONSISTENCY BETWEEN EARLIER

● DECISION OF EQUALLY DIVIDED COURTS:

● PRECEDENT SUB SILENTIO:

IN SOME CASES THE COURT MAY MAKE NO PROUNCEMENT ON A POINT

● “THE ONLY CASES IN WHICH DECISIONS SHOULD BE HELD TO HAVE

● SUCH A DECISION WOULD ONLY BE OVERRULED WHEN THE LATER

● “LET THE DECISION STAND IN ITS RIGHTFUL PLACE”;

● THIS IS AN ABBREVIATION OF THE LATIN PHRASE, STARE

● GENERALLY SPEAKING STARE DECISIS MEANS THAT A POINT OF

● THE GUIDING PRINCIPLE IS THAT A VIEW

● THE DECISION OF ONE HIGH COURT IS NOT

● A SINGLE JUDGE BENCH IS BOUND BY THE

● THE SUPREME COURT SAID THAT IT IS IMPERMISSIBLE FOR

● IT IS NOT ONLY A MATTER OF DISCIPLINE FOR THE HIGH

● A RATIO DECIDENDI IS A RULE OF LAW EXPRESSLY OR IMPLIEDLY

● THE PRINCIPLE WHICH THE DECISION LAYS DOWN IN RULE OF LAW

THE PLAINTIFF WAS ENTITLED FOR DAMAGES CAUSED TO HER

MANUFACTURER IS LIABLE TO CONSUMER IN MANUFACTURING

● FINDER OF THE GOODS IS THE KEEPER,

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