PRECEDENTS

Precedents literally means previous judicial decision. The decisions of the

higher courts are binding on the lower courts. The binding force of decision is
called precedent. The precedents play an important role in the development of
law. It is the second important source of law. First source is customs and the
third source is legislation. Sometimes act may be insufficient for the case or
there may be an vacuum or any thing missing in the act. Under these
circumstances the court can apply their own mind. These independent decisions
become precedents which are followed later on by the same & Lower courts.
This method of decision is also called as Judge made law. The English and
American law is mostly based upon the precedents. In India Art.141 of Indian
Constitution says that the decision of the higher courts shall be binding upon the
lower courts.
According to the Oxford University, “Precedents means the previous decision
case given by a court according to rules.”
Particularly the precedents means the Judge made law. When the court gives its
own ideas for creating new rules. England, America and China also follow the
previous decisions as the source of law but the continent countries like
Germany, Japan does not accept the previous decisions as the source of law. The
method of taking precedents as source of law is called inductive method, while
the method of continental countries not following previous decisions of the
court is called deductive method.

Advantages
1. Consistency: Precedent helps ensure that similar cases are decided in a
consistent manner. This means that similar cases will be decided the same
way, regardless of the court or judge hearing the case. This promotes
stability and predictability in the legal system.
2. Efficiency: Using precedent can save time and resources because it
eliminates the need to start from scratch every time a new case arises.
Instead, the court can rely on previous decisions to guide its decision-
making.
3. Fairness: Precedent ensures that everyone is treated fairly and equally under
the law. It helps prevent judges from making arbitrary decisions based on
personal bias or opinion.
4. Predictability: Using precedent helps create a predictable legal system,
which can be helpful for businesses and individuals who want to plan their
 actions accordingly. By looking at past decisions, they can better understand
how the law applies to their situation and make informed decisions.
5. Judicial efficiency: Relying on precedent can help courts avoid having to re-
litigate issues that have already been decided. This can help save judicial
resources and promote efficiency in the legal system.

Disadvantages
1. Inflexibility: Precedent can sometimes be inflexible and prevent the law
from evolving to reflect changes in society or new circumstances. This can
result in outdated or unjust outcomes.
2. Uncertainty: Because precedent is based on previous decisions, there can be
uncertainty about what the law actually is. This can lead to confusion and
difficulty in predicting how a court will rule in a given case.
3. Unjust outcomes: Precedent can also result in unjust outcomes if a previous
decision was based on flawed or discriminatory reasoning. In such cases,
relying on precedent can perpetuate injustices rather than rectifying them.
4. Limitations on judicial discretion: Precedent can limit a judge's ability to use
their own discretion in deciding a case. If a previous decision sets a strict
rule, a judge may be unable to deviate from that rule even if they believe it
would lead to a more just outcome.
5. Stifling innovation: Relying too heavily on precedent can sometimes
discourage innovation and creative legal thinking. Lawyers and judges may
be hesitant to push the boundaries of the law if they fear that doing so will
conflict with established precedent.

Obiter Dicta and Ratio Decidendi

Ratio Decidendi
One of the easiest definitions of Ratio Decidendi is “reasons for the decision”
The ‘reason’ of the decision of the court is not the facts, laws, or the orders of
the case. The reason is the step that a judge took in order to resolve the case. It
is the necessary steps that the judge needs to take in order to reach the
conclusion that the judge reached. It must be related to the issue of the case.

The ratio decidendi does not originate from the dispute of the facts but the
dispute of the laws. In order to make a ratio binding, it must be backed by the
majority of the judges. Different judges may present different judgments, but
they must have some reasons in common. The ratio decidendi can be of two
types- Descriptive ratio, and Prescriptive Ratio. The descriptive ratio is the main
reason which has guided or helped the court in reaching the final decision. It is
the original ratio and it lays the path for future cases. Meanwhile, the
prescriptive ratio lays down the interpretation of the descriptive ratio.
Let us understand this with the help of an example. One of the very famous
cases from the United Kingdom is the Donoghue vs. Stevenson. We will be
studying the same case for our examples. In the above case, the House of Lords
was dealing with the manufacturer of a ginger beer. One of their consumers had
found a snail in the sealed bottle of ginger beer. Hence, the question that the
House of Lords faced was: whether the manufacturer of the beer was liable to
the consumer if the consumer had fallen ill after drinking the beer which was
contaminated by the snail. The House of Lords held the manufacturer of the
ginger beer liable.
If one just uses the simplest of the interpretation, they will conclude that the
precedent set by the case will be followed in future cases when the case had a
similar case. So, if we even replace the company’s title, the facts change and it
will be a major problem to decide whether the case is applicable or not. But the
judgment is relevant for the cases related to the cases where some negligence
has been done by the company.
 Ratio decidendi is important in judicial precedents because they act as the
legal guideline underlying the choices in a specific case.
 Ratio Decidendi lay down the precedent of the future cases. They are
considered the most important part of a judge’s discourse. The case laws or
precedents were and still are considered as sources of law around the world.
 The idea of precedent is based on the Latin principle of stare decisis. The
principle states that if something has been decided by the court in the past,
there is no need to change it. In simpler terms, what the principle says that
follow the common law and don’t attempt to change it.
Obiter Dicta
Obiter Dicta is usually seen as normal statements made by the court which are
not part of the ratio decidendi. In the course of judgement, a judge may make
various observations which are not precisely relevant to the issues before him.
For instance, he may illustrate his reasoning by reference to hypothetical
situations. Whatever said by the Court by the way of statements of law which
lay down a rule but which is unnecessary for the purpose in hand, are called
obiter dictum. Obiter dicta literally means something said by the judge by the
way, which does not have any binding authority.

LEGISLATION
The legislation comes from the Latin phrase ‘legis’ (guidelines or rules) and
‘latum’ (law) (making). So, legislation can be defined as the process of creating
law; it is created by the legislature of any region or nation and is binding on all.
In India, legislation is recognized as an essential source of law . It has abroad
scope and is used to supervise, authorize, empower, endorse, grant, proclaim, or
restrict.
Legislation means the process of law making. This law-making power is vested
in the legislation body which is sovereign body. It is called Parliament at the
centre level and legislative assembly at the state level. Legislation is the most
important and modern source of Law. This source has played an important role
in the development of modern law and also different from custom and precedent
etc.

According to Austin: “Legislation is the command of the sovereign or the

superior authority which must be followed by the common masses backed
by sanctions”.

KINDS OF LEGISLATION
SUPREME LEGISLATION
The supreme legislation is that which has been recognized by the government’s
sovereign power. As a result, some of the state’s organs are unable to handle or
control it. It is thought to be exceptional as well as legally revolutionary. There
is no legitimate restriction on its capacity. Indian parliament is likewise
preeminent. Even though there are different constitutional amendments upon its
capacity, it is not subject to any other administrative authorities inside the state.
Therefore, the sovereign jurisdiction of the state can’t be revoked, cancelled or
constrained by some other authoritative organ of the state.
SUBORDINATE LEGISLATION
Subordinate legislation are laws passed by authorities other than the state’s
Supreme Expert. It is created using the forces delegated by the Supreme Power.
The supreme authority is responsible for the origin, provenance, and continued
existence of such regulation.
It can be cancelled and abrogated anytime by the power of the sovereign
authority and therefore, it must offer an approach to sovereign legislation.
Subordinate legislation is liable to parliamentary control. Five unique types of
subordinate legislation can be distinguished. These are as follows.
 Autonomous Legislation- A group of persons for making law is known as
autonomous law and body i.e. University or Boards.
 Judicial Legislation - Powers delegated to the judicial system to make and
implement their own laws to maintain transparency in the judicial system of
the country.
 Colonial Legislation - It is for those countries who are under the control of
any other country they can only make laws with the permission of that
country.
 Municipal Legislation - law made by local bodies under the control of SC, eg
– Municipal Corporation and Zilla Parishads
 Executive Legislation- When legislative powers are delegated by the
designated official to an executive, it is called executive legislation.
DELEGATED LEGISLATION
The Parliament cannot deal with every aspect of the governance system by
themselves, they delegate these functions to the authorities established by law.
This delegation is noted in statutes, commonly called delegated legislations.
E.g. - Regulations and by-laws
Guidelines and Statutory Rules are the most widely recognized types of
Delegated Legislation. They are made by the Executive or a Minister which
apply to the overall public. By-laws, and occasionally Ordinances are made by a
Local Government Authority which also applies to the general population who
live around there. Principle and Parent Act regularly depict methodology to be
followed in Courts if there is any flaw in a delegated law.
Legislation as a Source of law- Historical and Analytical School
 ANALYTICAL - This school ignored the importance of custom and gave
the stress on command of sovereign which can make law only through
legislation. This school also ignored the judge made law. About custom
they say that the custom is not law but they are the source of law.
  HISTORIC- It gives no importance to the legislation rather gives more
importance to custom. According to them the function of law is only to
specify and to correct the custom into law

ADVANTAGES
1. Abrogative Power:
Legislation is both constitutive and abrogative whereas precedent merely
possesses constitutive efficacy. Legislation is not only a source of law, but it is
equally effective in amending or annulling the existing law.
2. Efficiency:
Legislation allows an advantageous division of labour by dividing the two
functions of making the law and administering it. This results in increased
efficiency. President, however, unites those two functions in the same hands.
3. Declaration
Legislation satisfies the requirement of natural justice that laws shall be known
before they are enforced. However, that is not the case in precedent, it is created
and declared in the very act of applying and enforcing it.
4. Provision for future cases:
Legislation can make rules in anticipation for cases that have not as yet arisen,
whereas precedent must wait for the occurrence of some dispute before the
court can create any definite rule of law.
5. Form:
Legislation is superior in form to precedent. It is brief, clear, easily accessible
and understandable, whilst valuable part of case law has to be extracted from a
ton of dross.