This article is written by Srishti Rajpoot, a 2nd year law student at Gautam Buddha University.
A precedent is purely constitutive and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it.
Law becomes certain and known and that in it is a great advantage. It is conducive to social development; administration of justice becomes even-handed and fair.
Methods of Judicial Decisions-
Two methods of judicial decisions are there, Deductive and inductive.
- In the case of deductive method the general legal rule is already fixed and certain and the same is applied in individual cases by the judges.
- In case of deductive method the judge has to start from a particular case and come to a general principle of law.
Defects in Judicial legislation-
The decision of the judges is not intelligible to the common man. They sometimes create an atmosphere of uncertainty. Also they are retrospective in nature.
Kinds of Precedent-
- Authoritative and Persuasive- An authoritative precedent is one which judges must follow whether they approve of it or not. A persuasive precedent is one which the judges are under no obligations to follow but which they take into consideration and to which they will attach great weight as it seems to them to deserve.
- Absolute and Conditional precedent- Authoritative precedents are of two kinds, absolute and conditional. In case of absolutely authoritative precedent they have to be followed by the judges even if they do not approve of them. In case of authoritative precedent having conditional authority the courts can disregard them under certain circumstances.
- Declaratory and Original precedents- a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule.
Supreme Court of Judicature Acts of 1873 and 1875 and the theory of stare decisis firmly establish this rule. Article 141 provides that the law declared by the supreme court of India shall be binding on all courts in India.
The rule of stare decisis is not so imperative or inflexible that it cannot be departed from but its application must be determined in each case by the discretion of the court and previous decisions should be followed to extend that error may be perpetuated and grievous wrong may result.
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.
Decisions sub silentio-
In some cases the court may make no pronouncement on the pint with regard to which there was no argument and yet the decision of the case as a whole assumes a decision with regard to the particular point. Such decisions are said to pass sub silentio and they do not constitute a precedent.
According to Salmond, a precedent is a judicial decision which contains itself a principle. The underlying principle which thus forms its authoritative element is often termed as ratio decidendi.
All that is said by the court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessarily for the purpose in hand are called obiter dictum. These dicta have the force of persuasive precedents.
Precedent and legal development-
The judicial power of granting new remedies may be used to realize the objective.
The moulding of different and often scattered legal rules or remedies into a board and comprehensive principle which combines restatement, remoulding and the making of new law.
Through a long-established rule even if not formally binding on the court will not lightly be upset, this consideration will be overruled where demands of justice are felt to be weightier.
Circumstances which increase the authority of precedents-
- The number of judges constituting the bench and their eminence is very important.
- The eminence of the lawyers who argued the case enhances the authority of precedent. A unanimous decision carries more weight.
- Affirmation or approval or following by other courts especially by higher tribunal adds to the strength of a precedent.
- If an act passed embodying the law in a precedent.
- The lapse of time adds to the authority of precedent.
Sources of Judicial Principles-
When there is no authority or rule of law to guide the judges, they look to persuasive source of law for guidance.
Reference is made to foreign law, opinions of distinguished jurists and lawyers and the obiter dictum of the judges.
Common sense is also employed to arrive at a decision. Sometimes analogies are drawn from the existing law to arrive at a new decision.