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Summary of papers written by Judicial
Officers on the subject:
“LAW OF PRECEDENT”
Introduction :
A precedent is a statement of law found in the
decision of a superior Court, which decision has to be
followed by that court and by the courts inferior to it.
Precedent is a previous decision upon which the judges have
to follow the past decisions carefully in the cases before them
as a guide for all present or future decisions.
In other words, ‘Judicial Precedent’ means a
judgment of a Court of law cited as an authority for deciding
a similar set of facts, a case which serves as authority for the
legal principle embodied in its decision. A judicial precedent
is a decision of the Court used as a source for future decision
making.
Meaning :
A precedent is a statement of law found in
decision of a Superior Court. Though law making is the work
of the legislature, Judges make law through the precedent.
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Inferior courts must follow such laws. Decisions based on a
question of law are precedents. Decisions based on question
of facts are not precedents. Judges must follow the binding
decisions of Superior or the same court. Following previous
binding decisions brings uniformity in decision making, not
following would result in confusion. It is well settled that
Article 141 of the Constitution empowers the Supreme Court
to declare the law and not to enact the law, which essentially
is the function of the legislature. To declare the law means to
interpret the law. This interpretation of law is binding on all
the Courts in India. This is called as precedent.
Definition of Precedent :
The term precedent is not defined anywhere. In
general English it means, A previous instance or case which
is, or may be taken as an example of rule for subsequent
cases, or by which some similar act or circumstances may be
supported or justified”.
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According to salmond :
In loose sense it includes merely reported case
law which may be cited and followed by courts.
In strict sense, that case law which not only has
great binding authority but must also be followed.
In all precedents are authority of past decisions
for future cases. It must be reported, cited and followed by
courts.
Object :
The main object of doctrine of precedent is that
the law of the land should be clear, certain & consistent so
that the Courts shall follow it without any hesitation. In
Union of India Vs. Raghubir Singh (AIR 1989 SC 1933) it
has been held
“The doctrine of binding precedent has
the merit of promoting a certainty and
consistency in judicial decisions, and enables an
organic development of the law, besides
providing assurance to the individual as to the
consequence of transactions forming part of
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daily affairs. And, therefore, the need for a
clear and consistent enunciation of legal
principle in the decisions of a Court.”
Origin of Precedent :
Precedent originates from the doctrine of stare
decisis. Stare decisis means to abide by the decisions. The
doctrine of stare decisis brings certainty and conformity to
the decisions of the court and to law.
Stare decisis :
The maxim explains the doctrine of stare decisis.
When court settles an issue, a conflict or a controversy
between parties it becomes the law on those issues and
conflicts. Such a decision is a precedent. A precedent is a
statement of law found in decision of the superior court. Such
decisions are binding to that court and the inferior courts
have to follow. The cases based on similar set of facts decided
by a court may arise in any future case. Following previous
decisions in similar future cases, the court may save time and
avoid conflicting decisions, bringing uniformity to law. The
court settles a question of law or of fact, it is best to stand by
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that decision while adjudicating similar cases in the future.
Before deciding a case, the Judges look into previously
decided cases of similar nature by their own court or by
superior courts. They shall apply them on the facts or case
before them and decide accordingly.
In Indian legal system, the judges take guidance
from previous decisions on the point, and rely upon them.
The decisions of Apex Court and High courts are compiled
and published in reports. These reports are considered to be
valuable from the legal literature perspective. Those decisions
are very efficient in deciding cases of subsequent cases of
similar nature. They are called as Judicial Precedents. A
decision is an authority for what it decides.
The ratio in the decision is its essence. The reason
and principles on which a court decides a case forms a
precedent. A Judicial decision has a binding force for
subsequent cases. However, the whole Judgment is not
binding in future cases.
ommissioner of Income Tax vs
In the case of C
M/s Sun Engineering Works Private Limited AIR 1993, SC
43, the Hon'ble Apex Court held that, “while applying the
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decision to a later cases, the court must carefully try to
ascertain the true principle laid down by the decision of the
Supreme Court and not to pick out words or sentences from the
Judgment divorced from the context of question under
consideration by the court to support their reasoning.”
It is very clear that, only those statements in an
earlier decision which may be said to constitute the ratio
decidendi of that case are binding. Statements which are not
essential or necessary for deciding the later cases, such non
authoritative statements are called as obiter dicta.
Ratio Decidendi :
Ratio decidendi means the reason or the principle
upon which the case has been decided by the higher Courts
and only this much is binding on the subordinate courts while
applying the earlier decision. The ratio decidendi can be
ascertained by an analysis of facts. In the case Krishna
Kumar vs.Union of India and others , (
1990) 4 SCC 207
it
has been observed the hon'ble supreme court that:
“In other words, the enunciation of the reason
or principle upon which a question before a
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court has been decided is alone binding as a
precedent. The ratio decidendi is the underlying
principle, namely, the general reasons or the
general grounds upon which the decision is
based on the test or abstract from the specific
peculiarities of the particular case which gives
rise to the decision. The ratio decidendi has to
be ascertained by an analysis of the facts of the
case and the process of reasoning involving the
major premise consisting of a preexisting rule
of law, either statutory or judgemade, and a
minor premise consisting of the material facts
of the case under immediate consideration. If it
is not clear, it is not the duty of the court to
spell it out with difficulty in order to be bound
by it.”
Obiter Dicta :
Obiter Dicta means all that is said by the court by
the way or the statement of law which go beyond the
requirements of the particular case and which laid down rule
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i.e. irrelevant or unnecessary for the purpose in hand are
called obiter dicta. These dicta have the force of persuasive
precedents only. The judges are not bound to follow them.
However, obiter dictum of Their Lordships of the
hon'ble Supreme Court is entitled to highest respect and is
binding on all the Courts of the country. It is observed in case
of “Mohandas Issardas and others Vs. A.N. Sattanathan &
Others, A.I.R. 1995 (Bom.) 113” that:
“the court in India should accept as an
authoritative pronouncement on the particular
aspect of law and treat that pronouncement as
binding. The Supreme court has now taken the
place of privy council and we would like to say
unhesitatingly that we must show the same
respect for the 'obiter dicta' of the Supreme
Court that we did for those of privy council.
The Supreme Court is the highest judicial
tribunal in India today and it is as much
necessary as in the interest of judicial
uniformity and judicial discipline that all the
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High Courts must accept as binding the 'obiter
dicta' of the Supreme Court in the same spirit
as the High Courts accepted the 'obiter dicta' of
the privy council.”
Sub Silentio :
A decision is sub silentio if an important issue
ignored or was not argued by counsel. That point or issue
may turn the decision of the court. Such decision is not an
authority on the point which is not fully argued is sub
silentio.
When Precedents cease to apply :
There are three main criteria to oversight the
previous precedents as follows ;
I] Overruling
II] Reversing
III] Distinguishing
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I] Overruling :
This is where a court higher in the hierarchy
departs from a decision made in a lower court. Then the
previous decision is no longer binding.
II] Reversing :
This is where a higher court departs from
the decision of the lower court on appeal.
III] Distinguishing :
This is where the facts of the case are
deemed sufficiently different so that the previous case is no
longer binding.
Order by consent of the parties :
The court can pass orders by consent of the
parties. Those orders are not adjudication of the rights and
liabilities of the parties. That decision does not lay down any
principle. Those orders are not precedent.
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Whether judgments of Hon'ble High Court are binding
as precedents :
Like Article 141 empowering the Supreme Court
to declare the law and making its precedents binding on all
the Courts, there is no specific provision directly empowering
the High Court to declare the law and making its decisions
binding on its subordinate Courts. But it is well settled that
the Courts from a State subordinate to a High Court from that
State are bound by its decisions. Question is what is the basis
for this settled law.
The Honble Supreme Court in M/s. East India
Commercial Co. Ltd. Calcutta and another V/s. Collector of
Customs, Calcutta (AIR 1962 S.C.1893) held in para 31 of
the Judgment as under :
“31…… Under Art. 215, every High
Court shall be a court of record and shall
have all the powers of such a court including
the power to punish for contempt of itself.
Under Art. 226, it has a plenary power to
issue orders or writs for the enforcement of
the fundamental rights and for any other
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purpose to any person or authority,
including in appropriate cases any
Government within its territorial
jurisdiction. Under Art. 227, it has
jurisdiction over all courts and tribunals
throughout the territories in relation to
which its exercises jurisdiction. It would be
anomalous to suggest that a tribunal over
which the High Court has superintendence
can ignore the law declared by that Court
and start proceedings in direct violation of
it. If a tribunal can do so, all the
subordinate courts can equally do so, for
there is no specific provision, just like in the
case of Supreme Court, making the law
declared by the High Courts binding on
subordinate courts. It is implicit in the
power of supervision conferred on a superior
tribunal that all the tribunals subject to its
supervision should conform to the law laid
down by it. Such obedience would also be
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conducive to their smooth working
otherwise, there would be confusion in the
administration of law and respect for law
would irretrievably suffer. We, therefore,
hold that the law declared by the highest
court in the State is binding on authorities
or tribunals under its superintendence, and
that they cannot ignore it either in initiating
a proceeding or deciding on the rights
involved in such a proceeding. If that be so,
the notices issued by the authority signifying
the launching of proceedings contrary to the
law laid down by the High Court would be
invalid and the proceedings themselves could
be without jurisdiction.”
Per incuriam decisions :
Per incuriam decisions do not have binding effect.
Per incuriam decisions mean where the court has acted in
ignorance of a previous decision of its own or of a court of
coordinate jurisdiction or when the decision is given in
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ignorance of the terms of a statute or a rule having statutory
force.
The Apex Court in State of Bihar Vs. Kalika
Kuer alias Kalika Singh & others (2003) 5 SCC 448 held
that :
“A decision is given per incuriam
when the court has acted in ignorance of a
previous decision of its own or of a court of
coordinate jurisdiction which covered the
case before it, in which case it must decide
which case to follow; or when it has acted in
ignorance of House of Lords decision, in
which case it must follow that decisions; or
when the decision is given in ignorance of
the terms of a statute or rule having
statutory force.”
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CONFLICTING DECISIONS OF DIFFERENT
STRENGTH :
If there is conflict between the decision of lesser bench,
then law laid down by the larger bench will be binding. In
this regard the FiveJudges Constitution Bench of Honourable
Supreme Court in case of “Central Board of Dawoodi Bohra
Community v. State of Maharashtra, (2005) 2 SCC 673 ”
has observed that,
“The law laid down by this Court in a
decision delivered by a Bench of larger
strength is binding on any subsequent
Bench of lesser or coequal strength”.
This view is also followed by Honourable Bombay High
Court in case of “Reliance General Insurance Company Ltd.
versus Syeda Aleemunbee w/o. Syed Razaq. First
Civil
Appeal No. 1611 of 2013, decided on 03.03.2014,” To
quote Honourable Bombay High Court
“28) It is wellsettled, judicial process
demands that a judge moves within the
framework of relevant legal rules and
the coveted modes of those for
ascertaining them. The judicial robe
has its inbuilt discipline, which
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mandates, for a High Court to adhere
in tune with the precedent of Supreme
Court and in particular of the larger
Benches. This is more so, if there are
divergent views by Honourble Judges of
the Supreme Court, on identical
issues.”
EFFECT OF ORDERS OF HIGHER COURT :
Any interim order passed even by the Supreme Court is
limited to that particular case and should not be used as
precedent for other cases specifically when the Supreme
Court itself has earlier authoritatively decided the question
which is squarely involved in the later case. The Hon'ble Apex
Court in “Megh Singh v. State of Punjab [AIR 2003 SC
3184]” has held that,
“circumstantial flexibility, one
additional or different fact may make a
world of difference between conclusion
in two cases or between two accused in
the same case. Each case depends on its
own facts and a close similarity
between one case and another is not
enough because a single significant
detail may alter the entire aspect.”
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Conclusion :
Precedents work like lighthouse to guide all
courts. Precedents bring certainty in law. They always help
the lower court judges, specially the junior judges to deal
with applying the law correctly. Some times the judges may
support their views with help of the precedents. These are the
guidelines which must be followed by the lower courts to
ensure the real justice, consistency, uniformity in the judicial
decisions and also provide predictability to the individual
rights.
Submitted with all respect.
Group Members (U.M.Padwad)
Group Leader,
Shri. M. B. Pathan, District Judge I,
C.J.J.D & J.M.F.C., Sironcha. Gadchiroli.
Shri. V. M. Karhadkar,
C.J.J.D & J.M.F.C., Kurkheda.
Shri. S. M. Bomidwar
2nd Jt. C.J.J.D & J.M.F.C., Gad.
Shri. D. J. Patil,
C.J.J.D & J.M.F.C., Chamorshi