PRECEDENTS AS A SOURCE OF LAW DIFFERENT DEFINITION OF PRECEDENTS ARTICLE 141 OF THE CONSTITUTION OF INDIA HIERARCHY OF COURTS IN INDIA THE APEX COURT AT THE TOP AND OTHER COURTS AS SUBORDINATE COURTS NATURE AND CHARACTERISTICS OF PRECEDENTS DIFFERENT KINDS OF PRECEDENTS DOCTRINE OF STARE DECISIS DECISION SUB SILENTIO DOCTRINE OF PROSPECTIVE OVERRULING RATIO DECIDENI OF A CASE OBITER DICTUM OF THE CASE MERITS OF PRECEDENTS DEMERITS OF PRECEDENTS

1. AMITY LAW SCHOOL
JURISPRUDENCE
TOPIC: PRECEDENTS AS A SOURCE OF
LAW
SUBMITTED TO SUBMITTED BY:
PRATEEK DEOL GAURAV PUROHIT
ASST PROFESSOR BBA LLB 4TH SEMESTER

2. JUDICIAL PRECEDENTS
• It is a very important Source of Law
• Judicial Precedent refers to previously decided
Judgments of Superior Courts such as
Supreme Court and High Court.
• The Binding Character of previously decided
cases is important considering the Hierarchy
of Courts established by the Legal System and
it is established by Constitution of India

3. DEFINITION OF PRECEDENTS BY
JURISTS
• SALMOND: Precedent has two meaning one is
reported case laws which may be Cited and
followed by Court and second Precedent means
Case Laws which not only has great binding
authority but also be followed.
• Bentham: Precedents are Judge made Law
• Gray: Precedent covers everything said or done,
which furnishes a rule for Subsequent Practice
• Austin: Precedents are Judiciary’s Law

4. CHARACTERISTICS OF JUDICIAL
PRECEDENTS
It can be inferred that Precedents are:
• Guidance or authority of past decisions for
future cases.
• Precedent must have opinio juris
• These must be followed widely for a long time
and must not violate any existing statute law.
• Precedents must be reported, maybe cited
and may probably be followed.

5. NATURE OF PRECEDENT
• Precedent is purely Constitutive and in no Degree
Abrogative, which means Judicial Decision can
make a Law but cannot alter it.
• When there is Settled Rule of Law, it is the Duty
of Judges to follow the Same.
• Function of Judges is limited to Supplying the
Vacancies of Legal System. Filling up with new law
the gaps that exist in old and supplementing the
imperfectly developed body of legal doctrine.
• A Precedent can also be Disregarded in the
Interest of Justice

6. METHODS OF JUDICIAL DECISIONS
There are two Methods of Judicial Decisions:-
• Deductive Method: General Legal rule is already
fixed and certain and same is applied in individual
case by Judges. They are not required to use their
brains and they have to just apply the law.
• Inductive Method: Judges have to start from a
particular case and come to a general principle of
law. Process is from Particular to General.

7. KINDS OF PRECEDENTS
• Authoritative and Persuasive: According to
Salmond An Authoritative Precedent is one which
Judges must follow whether they approve of it or
not, they are legal sources of Law such as for
example Decision of Superior Courts.
• A Persuasive Precedent is one which Judges are
under no obligations to but which they will take
into consideration, they are merely Historical
such as for example Decision of Foreign Courts
and Decision of other High Courts.

8. KINDS OF PRECEDENT (CONTD)
• Authoritative Precedents are of two types they are:
• Absolute and Conditional Precedents: in Absolutely
Authoritative Precedents they have to be followed by
Judges even if they do not approve of them. They are
Entitled to Implicit Obedience.
• A Conditional Precedent can be disregarded by
Dissenting or by Overruling. In the case of Overruling
Precedent is Authoritatively pronounced to be wrong
so that it cannot be followed in Future.

9. KINDS OF PRECEDENT (CONTD)
• Declaratory and Original Precedents: According to
Salmond A Declaratory Precedent is one which is
merely the Application of an already existing Rule
of Law. Rule is Applied because it is already a Law.
In case of Advanced Countries Declaratory
Precedents are more numerous.
• An Original Precedent is one which creates and
applies a new rule. It is law for the future because
it is now applied. They alone develop the Law of
the Country.

10. DOCTRINE OF STARE DECISIS
• Stare Decisis is a Latin term that means “to
stand by things decided”
• It has been recognized by the Constitution of
India.
• Article 141 provides that Law declared ny the
Supreme Court of India shall be binding on all
Courts on India.

11. DECISION SUB SILENTIO
• Sub Silentio means under silence. A situation
when an action is forwarded without taking
notice. It mostly refers to implied matters.
• In some case the Court may make no
pronouncement on point regard to which
there was no argument and yet decision of
case as a whole assumes a decision with
regard to particular point.
• They do not Constitute a Precedent.

12. DOCTRINE OF PROSPECTIVE
OVERRULING
• Overruling literally means to overturn or set
aside a precedent by expressly deciding that it
should no longer be controlling law.
• Prospective means operative or effective in
future.
• Construing an earlier decision in such a way
that iw would have a binding effect to parties
of the original suit yet changing the law
applying it only prospectively to Future Cases

13. RATIO DECIDENDI
• In Latin it means “for reason” or “the
foundation for”
• Ratio includes all the principles a court relies
on they can be moral, social, or political.
• It is Binding in nature
• The Concrete Decision is binding between the
parties to it but it is abstract Ratio Decidendi
which alone has the force of law as regard the
world at large.

14. OBITER DICTUM
• All that is said by Court by the way or statements
of law which go beyond the requirements of a
particular case.
• It lays down a rule that is unnecessary for the
purpose in hand.
• These dicta have force of perusasive precedents
only so judges are not bound to follow them.
• Obiter dicta help in growth of law as they help
the cause of reform of law.

15. ADVANTAGES OF JUDICIAL
PRECEDENTS
• Certainty
• Consistency
• Practicality
• Time Saving
• Flexibility
• Growth
• Precision

16. DISADVANTAGES OF JUDIICAL
PRECEDENTS
• Bulky and Complexity
• Rigidity
• Slow Growth
• Illogical Distinctions
• Unpredictable