Dr.

Ram Manohar Lohiya National Law University, Lucknow

2011-2012

Final Draft on Topic: Precedent in Subject: Study of Basic of Case Law

Submitted for the project work undertaken in the partial fulfillment of B.A.LL.B. (Hons.) at

Dr. Ram Manohar Lohiya National Law University, Lucknow.

Under the guidance of:

Mr. Shashank Shekher Astt. Prof. (Law) Dr. RMLNLU (Lucknow)

Submitted by:
Ayush Verma Roll No. 32 B.A.LL.B.(Hons.) Ist Semester

Acknowledgement
I am heartily thankful to my subject teacher Mr. Shashank Shekher for his valuable guidance in the completion of this project. I am also thankful to the Library of my university Dr. Madhu Limaye Library for the help and support which they provided to me to complete this project.

Once again I would like to thanks to all concerned for their valuable help. Thanking You...

Ayush Verma

TABLE OF CONTENT
Introduction Research Methodology Precedent as a source of law Kinds of Precedent Importance of Precedent Nature of Judicial Precedent Hierarchy of authority Advantages & Disadvantages of Precedents Over- ruling of Precedent Per -Incurium Law Reporting in India Ratio Decidendi Obiter Dicta Doctrine of Stare Decisis Conclusion Cases Referred Bibliography

Precedent
Introduction
Precedent is an important source of law. A precedent may be defined as a statement of law found in the decision of a Superior Court, which has to be followed by that court and by courts inferior to it. It is a distinguishing feature of the English legal system because most of the common law is unwritten and owes its origin to precedents. Precedents have a binding force on judicial tribunals for deciding similar cases in future. In continental countries like Germany, France, Italy, precedent has only instructive value and it is not authoritative. Its importance no greater than that of a text of a book of law. On the other hand, in English legal system authoritative importance, it is in fact a legal source of law which the courts are bound to follow.1 Their, working together in harmony and the power and prestige which they enjoy as members of Royal Court have contributed to the development of a single homogenous system of common law in England where cases decided by the judges command great value and authoritative force. According to Salmond, a precedent speaks in England with authority; it is not merely the evidence of law but a source of it; and the courts are bound to follow the law that is so established. According to Salmond, the doctrine of precedent has two meanings, namely: 1- In a loose sense precedent includes merely reported case law which mat be cited and followed by the courts. 2- In its strict sense, precedent means that case-law which not-only has a great binding authority but most also be followed. Holds worth supports the doctrine in its loose sense. In recent years, the value of doctrine of precedent has become a debatable issue. There is no dissatisfaction with the practice of citing cases and attaching weight to them, the difference of opinion is as to the precedent practice of treating precedents as absolutely binding.2

1
2

Fitzgerald P. J.: Salmond on Jurisprudence,(12 ed.)p.141.

Ibid.

Research Methodology:
The proposed research study will be carried out with the help of the following strategies: 1. Studying Primary and Secondary Sources (Books, Articles), 2. Library Research. The study is non-empirical and is not based on extensive field surveys.

Precedent as a source of law

Precedent when speaks with authority, the embodied principle becomes binding for future cases and it thus becomes a source of law. Blackstone has pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation. They also keep the scale of justice even and steady and not liable to be waved away with every new judges opinion. Justice Cardozo also supports the view that adherence to precedent should be rule and not an exception. The rule of precedent should, however, be abandoned if it is consistent with the notion of justice or derogatory to social welfare policy.3 According to Jeremy Bentham, precedent is a Judge - made law while Austin calls it as judiciarys law. Keeton holds precedents as those judicial pronouncements of the court which carry with them certain authority having a binding force.

Kinds of Precedent
According to Salmond, precedent may be divided in the following manner: 1- Binding Precedent 2- Persuasive Precedent

Binding precedent:
Binding precedents are decisions in court cases that establish legal standards that must be followed by lower courts. Supreme Court decisions establish a binding precedent on court cases addressing similar issues across the country. Consequently, lower court judges are obligated to rule in a manner consistent with the binding precedent set by the Supreme Court in similar cases. Rulings of lower circuit courts set a binding precedent for courts within that circuit.3

Persuasive precedent:
3

Cardozo: The nature of the judicial process, pp. 149-151.

A persuasive precedent is different to a binding precedent in that the lower courts are unable to bind the higher courts to their decision, but can only be persuasive. As in the Mandla v. Dowell Lee case 4 , we can identify how the House of Lords decision was swayed by the decision made in the Court of Appeal level in Australia. Decisions made within the Common Law world can only act as an aid to the reasoning and decision-making of higher courts in the U.K. Persuasion of the lower courts could either be followed, disapproved, or overruled. Persuasive precedent can also be derived from courts of the same level, for example, if the House of Lords decide that a previous decision on a case with similar material facts was decided incorrectly, they would simply ignore that decision, or, on rare ocassions, overturn that decision. This is evident in Regina v. Shivpuri5 and Anderton v. Ryan6 where the Law Lords decided Anderton had been wrongly decided as to criminal attempts and overturned its own decision in Shivpuri.7

Importance of Precedent
In a common law system, judges are obliged to make their rulings as consistent as reasonably possible with previous judicial decisions on the same subject. The Constitution accepted most of the English common law as the starting point for American law. Situations still arise that involve rules laid down in cases decided more than 200 years ago. Each case decided by a common law court becomes a precedent, or guideline, for subsequent decisions involving similar disputes. These decisions are not binding on the legislature, which can pass laws to overrule unpopular court decisions. Unless these laws are determined to be unconstitutional by the Supreme Court, they preempt the common law precedent cases. Judges deciding cases are bound by the new law, rather than the precedent cases.8

Nature of Judicial Precedent

A judicial precedent is purely constitutive in nature and never abrogative. This means that it can create law but cannot abolish it. The judges are not at liberty to substitute their own views where there is settled principle of law. They can only fill in the gaps in the legal system and remove imperfections in the existing law. The process of judicial decision making is either deductive or inductive. Deductive method is associated with codified system of law. It assumes that legal rule applicable to any particular case is fixed and certain and the Judge is required to apply this rule as justice according to the law without any reference to his personal view. This implies that Judges decision is deduced directly from general to particular in circumstances of the case before him. Inductive method which is characteristic of English law, on the other hand, starts with same primary object of finding the general principle applicable to the particular case, but it does
4 5 6 7 8

[1983] 2 AC 548: [1983] 1 All ER 1062 [1987] AC 1 [1985] AC 567

http://www.coursework.info http://biotech.law.lsu.edu/map/TheImportanceofPrecedent.html

not conceive the rule as being applicable directly by simple method of deduction. It rather moves from particular to general. The method involves reasoning inductively and in the process, the judge is bound by the decision of the courts higher than his own court. Thus it would be seen that deductive method of judicial method of law making pre-supposes law as static whereas in actuality judicial decisions may change the law by over-ruling precedents or by announcing new legal norms. It is for this reason, it is said deductive method may explain legal stability but it can not account for legal change.

Hierarchy of authority
The general rule is that a Court is bound by the decisions of all Courts superior to it. The judicial setup with in the state is the determinant factor: if there be a constitution it may determine the powers and functions of the higher judiciary, otherwise the statutes which create Courts will denote their functions and also their position in the judicial set-up by limiting jurisdiction, providing for appeals from their decisions etc.

Advantages & Disadvantages of Precedents

Advantages:
It shows respect for the opinion of ones ancestors. Precedents are based on customs, and, therefore, they should be followed. Courts follow them because these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. As a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save the labour of the judge and the lawyers. Precedents bring certainty in law. If courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the lawn would become most uncertain. Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social, economic and many other values of their age. Precedents are Judge-made law. Therefore, they area more practical. They are based on actual cases. It is not like the statute law which is based on a priori theories. The law develops through precedents according to actual needs.

Disadvantages:
There is always a possibility of over-looking authorities. The vastly increasing

number of cases has an over-whelming effect on the judge and the lawyer. It is very difficult to trace out all the relevant authorities on every point. Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the horns of a dilemma. The courts are faced with what an English judge called complete fog of authorities. Though there are rules for such contingencies, they are not of so much help. The provision is that the lower court should choose between the two conflicting decisions of a superior court. But this makes the law uncertain, depending on the individual interpretation and discretion. A great demerit of the doctrine of precedent is that the development of law depends on the incidents of litigation. Sometimes, most important points may remain unadjudicated because brought action upon them. A very grave demerit or rather anomaly, of the doctrine of precedent is that, sometimes, to an extremely erroneous decision is established as law due to not being brought before a superior court.9

Over-ruling of Precedent
When ever in a case, bench strength of greater no. of judges with a majority reverse the decision given in the precedent of the case, then it is termed as over-ruling of precedent. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. For example, in the famous case of Keshvanand Bharti v. State of Kerela 10, the decision was in the favour of the plaintiff and since then it is used as a precedent in the cases based on the doctrine of BASIC STRUCTURE. To over-rule the judgment of that case, it is required that a Bench-strength of more then 13 Judges, with a majority, gives a decision which is opposite to the above mentioned case. When it will happen, it will be said that the precedent is over-ruled.

10

Lectures in Jurisprudence by Jayakumar N.K., 2nd edition, Lexis Nexis Butterworths AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) SUPP SCR 1

Per Incuriam
A decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided. In Morelle v Wakeling11 Lord Evershed MR stated that "the only case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned". In Secretary of State for Trade and Industry v Desai12 , Scott LJ said that to come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.

Law Reporting in India

The theory of binding force of precedent is firmly established in England. A judge is bound to follow the decision of any court recognized as competent to bind him, and it becomes his duty to administer the law as declared by such a court. The system of precedent has been a powerful factor in the development of the common law in England. Because of common law heritage, the binding force of precedents has also been firmly established in India, meaning thereby that the judgments delivered by the superior courts are as much the law of the country as legislative enactments. The theory of precedent brings in its wake the system of law reporting as its necessary concomitant. Publication of decisions is a condition necessary for the theory of precedent to operate; there must be reliable reports of cases. If the cases are to be binding, then there must be precise records of what they lay down, and it is only then that the doctrine of stare decisis can function meaningfully. The Indian Law Reports Act of 1875 authorizes the publication of the reports of the cases decided by the high courts in the official report and provides that, No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it the report of any case decided by any of the said High Courts on or after the said day other than a report published under the authority of the Governor-General-in-Council. Though the Law Reports Act gave authenticity to the official reports, it did not take away the authority of unpublished precedents or give a published decision a higher authority than that possessed by it as a precedent. A Supreme Court or high court decision is authoritative by itself, not because it is reported. The practice of citing unreported decisions thus led to the publication of a large number of private reports. The unusual delay in publication of official reports and incompleteness of
11 12

[1955] 2 QB 379 [1992] BCC 110, CA (Civ Div)

the official reports made the private reports thrive, resulting in a number of law reports in India being published by non-official agencies on a commercial basis. In India, there are more than 300 law reports published in the country. They cover a very wide range and are published from various points of view. A union catalogue compiled by the Supreme Court Judges Library of the current law journals subscribed by the libraries of various high court and Supreme Court judges (appended at the end of this paper) gives details of various law reports published from India. It also gives details of various foreign law reports submitted by law libraries in India, which gives an idea of the foreign journals being used by the legal fraternity in the country.13

Ratio Decidendi
The Latin phrase Ratio Decidendi, often translated as the reason for the decision. The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason, is called ratio decidendi. The ratio decidendi of Donoghue v. Stevenson14 case was that it exploded the doctrine of privity of contract and held the manufacturer is liable to consumer for this negligence in manufacturing the goods which is of such a nature that it is incapable of intermediate inspection by retailer. The plaintiff was, therefore held entitled for damages caused to her due to decomposed snail inside the ginger-beer which was being sold in opaque bottle.

Obiter Dicta
Obiter dicta literally means said in passing, which does not have any binding authority.
It has three definitions:

"literally, something said [dictum] in passing [obiter] . . ." "an incidental remark or observation" "an incidental and collateral opinion that is uttered by a judge but is not binding"

In the third meaning an obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the

13 14

http://www.nyulawglobal.org/Globalex/India_Legal_Research.htm (1932) AC 562

court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument." 15 They are statements which are not necessary to decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand(usually termed dicta) leave no binding authority on another court, they may have some mere persuasive efficacy. In S.R. Bommai v. Union of India 16 the nine judges bench of the Supreme Court unanimously held that secularism is one of the basic structures of the Constitution of India Justice Sawant and Kuldeep Singh observed that social pluralism is on of the basic structures while Justice Ramaswamy observed that socialism, social justice and fraternity are included in the basic structure of of the constitution. Justice Ahmadi opined that the rights contained in art 15 16 and 25 of the constitution formed a part of its basic structure. These observations of learned judges are obiter dicta as they were not directly in issue in the instant case. The ratio of the case is that secularism is a part of basic structure of the constitution.

Doctrine of Stare Decisis

The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters". The doctrine of stare decisis has been recognized by the Constitution of India. Art. 141 provide that the law declared by the Supreme Court of India shall be binding on all courts in India. Although the expression all courts is wide enough to cover the Supreme Court of India itself, it has been held in Bengal Immunity Co. Ltd. v. State of Bihar 17 that the expression does not include the Supreme Court of India. The result is that like the House of Lords, the Supreme Court is free to depart from its previous decisions if valid reasons exist for doing so. In Minerva Mills Ltd. v. Union of India18, the Supreme Court of India observed: Certainty and continuity are essential ingredients of the rule of law. Certainty in the application of law would be considerably eroded and suffer a serious setback if the highest court in the land were readily to overrule the view expressed by it in the field for a number o f years. It would create uncertainty, instability and confusion if the propounded by this court on the faith of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years.

Types of stare decisis:

15 16

www.wikipedia.org (1994) 3 SCC 1 17 AIR 1955 SC 661 18 (1980) 3 SCC 625

1-Vertical Stare Decisis 2-Horizontal stare Decisis

Vertical Stare Decisis

Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedents established by the appellate court for their jurisdiction, and all Supreme Court precedent. Appellate courts are only bound to obey Supreme Court decisions. The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical stare decisis. However, in Federal systems the division between Federal and local law may result in complex interactions. For example, state courts in the United States are not considered inferior to Federal courts but rather constitute a parallel court system. While state courts must defer to federal courts on issues within federal jurisdiction such as constitutional issues, federal courts must defer to state courts on issues of state law.

Horizontal Stare Decisis

The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis. When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis.19

Conclusion
In conclusion, it is shown in this paper that, it is desirable that some light should be shown on the future of the precedents. As observed in this paper, the courts are performing a very valuable creative function in modern times. This role of the courts is assuming importance and their field of activity is rapidly widening. In England, the doctrine of stare decisis has been modified. It may be hoped that some device would be invented to get rid of it. However the decisions of tribunals shall remain binding on subordinate courts. There is no possibility of departing from this rule in near future nor are there very strong reasons for it. In India also, the doctrine is not likely to undergo any considerable modification.

19

Paranjape, Dr. N.V., Studies In Jurisprudence & Legal Theory, pp. 224-226.

Cases Referred
Keshwanand Bharti v. State of Kerala, AIR 1973 SC 1461. Donoghue v. Stevenson, (1932) AC 562. S. R. Bommai v. Union of India, (1994) 3 SCC 1. Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. Mandla v. Dowell Lee, [1983] 1 All ER 1062. Regina v. Shivpuri, [1987] AC 1. Anderton v. Ryan, [1985] AC 567. Morelle v. Wakeling, [1955] 2 QB 379. Secretory of State for Trade and Industry v. Desai, [1992] BCC 110, CA (Civ Div).

Bibliography
Books:
Fitzgerald P. J.: Salmond on Jurisprudence,(12 ed.)p.141. Cardozo: The nature of the judicial process, pp. 149-151. Wadhwa Nagpur, Dr. Avtar Singh Introduction to Jurisprudence,p.187. Lectures in Jurisprudence by Jayakumar N.K., 2nd edition, Lexis Nexis Butterworths Paranjape, Dr. N.V., Studies In Jurisprudence & Legal Theory, pp. 224-226.

Websites:
www.biotech.law.lsu.edu www.wisegeek.com www.wikipedia.org http://www.nyulawglobal.org/
http://www.coursework.info