Precedent as a source of law in Indian Context

1. By-
Mohit Yadav
Pratik Jain

2.  Precedent is the reasoning behind a judge’s
decision that establishes a principle or rule of
law that must be followed by other courts lower
in the same court hierarchy when deciding
future cases that are similar.
 As Defined in Black’s Law Dictionary, "precedent"
is a "rule of law established for the first time by a
court for a particular type of case and thereafter
referred to in deciding similar cases( Black’s Law
Dictionary P 1059 5th edition 1979)

3.  Binding Precedent:
 A binding precedent is a legal principle established in a
higher court that must be followed by lower courts in the
same hierarchy when deciding similar or ‘like’ cases.
 eg in Maharashtra a judge of the high Court must follow the
decisions of judges in the Supreme Court.
 For a precedent to be binding on a particular case, the
precedent must be:
• From the same hierarchy of courts
• From a superior court-one that is higher in the hierarchy
 The decisions of the Supreme Court (the highest court in
INDIA) are binding on all other Indian courts. However, the
Supreme Court is not bound by its own previous decisions.

4.  A Persuasive Precedent
Are not binding on courts. They are seen more as ‘convincing’ argument, but one
that does not have to be followed because it is not binding. Precedents considered to
be persuasive but not binding are:
• The decision of a court in another hierarchy-such as another state or country.
• Ratio decidendi of courts at the same level; for example, highCourt judge would not be
bound by a decision of another highCourt judge
• Ratio decidiendi of inferior (lower) courts in the same hierarchy; for example a high
Court judge would not be bound the decision of a judge in a previous case
• Obiter dicta statements of a court in the same hierarchy or in another hierarchy.
 Although not binding, persuasive precedents may be seen as a point of reference. They
give an indication of how other judges think the law should be.
 E.g. Donoghue v Stevenson (1932)
 The British case Donoghue v Stevenson was used as persuasive precedent for the Indian
cases, which established the law of negligence in India.

5. • When they are deciding on a new issue
(novel case) brought before them or when a
previous principle of law requires expansion
to apply to a new situation.
• Statutory interpretation- interpreting the
words in acts of parliament.

6.  Latin phrase which means to stand by
decided cases.
 Article 141 -
 All the subordinate courts are bound to
follow what is laid down by the supreme
court.

7. 1. If it is reversed or overruled by a higher
court.
2. When it is inconsistent with the earlier
decision of the same rank.
3. When it is rendered per in curium.
4. When it does not state any reason for the
judgment.

8. Distinguishing a previous precedent
Where there is a binding precedent, a lower court
may avoid using the precedent established by a
higher court if it finds a significant difference in the
material facts of the original case and the case
currently being considered.
The precedent is not followed because the judge
can distinguish the new case from the previous
one.
In this way the lower court can avoid using the set
precedent.

9.  The use of precedent has been justified as pr
oviding predictability, stability, fairness, and
efficiency in the law.
 “Reliance upon precedent also promotes the e
xpectation that the law is just. The idea that li
ke cases should be treated alike is anchored i
nthe assumption that one person is the legal
equal of any other.
 Precedent also enhances efficiency.

10. 1.If there are more than one ratios laid down in
a judgment then which ratio is to be
considered a precedent.
2. There are numerous case laws and hence it
is a tedious task to recognize the relevant
ones.
3. Unless a case in this regard does not comes
to the court, legal position can’t be given on
the same.

11.  Judicial precedents are indeed a good source of
law.
 saves the time of the courts and hence helps in
ensuring effective justice delivery system.
 It cannot be denied precedents are one of the
most important sources of law. But with time it
will become more and more difficult to keep a
track all such judicial precedent. So some
mechanism will have to be developed to make
good provisions for recording of precedence.