Original and declaratory theory of precedent

PROJECT ON
Original and declaratory theory of precedent
SUBMITTED TO: Ms.Anukriti Mishra
(FACULTY OF Jurisprudence)

SUBMITTED BY: Nirvikalp Shukla

ROLL NO.: 105
SEMESTER: VI
SECTION: C

DATE OF SUBMISSION: 04-04-2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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Acknowledgements
First & foremost, I take this opportunity to thank Ms.Anukriti Mishra, Faculty
Jurisprudence, HNLU, for allotting me this challenging topic to work on. She has been
very kind in providing inputs for this work, by way of suggestions.
I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work. Last, but not the least I thank the University
Administration for equipping the University with such good library and I.T. facilities,
without which, no doubt this work would not have taken this shape in correct time.

Nirvikalp Shukla
Semester-VI, Batch-XI
Roll no-105

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ABBREVIATIONS USED
E.g..Exampli Gratia
Ed...Edition
Ors...Others
pPage Number
www..World Wide Web

CONTENTS
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1. Introduction.......06
2. What is precedent?............................................................................................07
3. Importance of precedent...........08
4. Types of precedents...........................................................................................09
5. Extent of binding...12
6. What is binding:The ratio decidendi ..14
7. Original and declaratory precedent.17
8. Conclusion..........................................................................................................19
9. References...20

RESEARCH METHODOLOGY
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This project work is descriptive & analytical in approach. It is largely based on secondary
& electronic sources of data. Books & other references as guided by faculty of
Jurisprudence , are primarily helpful for the completion of this project.

OBJECTIVES OF THIS PROJECT

Various objectives are to be achieved by this project; which are mentioned below.
To understand and analyze the Declaratory and Original theories of precedent
To understand the role played by Precedent as a source of law.

Introduction
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In common law legal systems, a precedent or authority is a principle or rule established

in a previous legal case that is either binding on or persuasive for a court or other tribunal
when deciding subsequent cases with similar issues or facts. The general principle
in common law legal systems is that similar cases should be decided so as to give similar
and predictable outcomes, and the principle of precedent is the mechanism by which that
goal is attained. Black's Law Dictionary defines "precedent" as 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."1 Common law precedent is a third kind of law, on equal footing
with statutory law (statutes and codes enacted by legislative bodies), and regulatory
law (regulations promulgated by executive branch agencies).
Stare decisis is a legal principle by which judges are obliged to respect the precedent
established by prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not
disturb the undisturbed." In a legal context, this is understood to mean that courts should
generally abide by precedent and not disturb settled matters.
Case law is the set of existing rulings which have made new interpretations of law and,
therefore, can be cited as precedent. In most countries, including most European
countries, the term is applied to any set of rulings on law which is guided by previous
rulings, for example, previous decisions of a government agency - that is, precedential
case law can arise from either a judicial ruling or a ruling of an adjudication within an
executive branch agency. Trials and hearings that do not result in written decisions of
a court of record do not create precedent for future court decisions.

What is a precedent?
A precedent is a statement of law found in a judicial decision of a High Court or a
superior Court, meant to be followed by the same Court as also by subordinate Courts.1
1Black's Law Dictionary, p. 1059 (5th ed. 1979).

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Thus, a precedent is the ratio of a decision which should be judicially applied in a given
case.
It has almost become fashion-able to quote precedent after precedent in order to make a
point. A persons erudition is measured by the number of cases that he can quote. And the
contrary is also equally true. If a person cannot quote enough number of decisions but can
otherwise interpret a law correctly; then his point, though being correct in law, may face
rejection. The undue importance attached to precedents almost creates a monopoly in
favour of some who alone can make a statement on law and if the same statement of law
is made by others who ingeniously interpret law, the statement will be disbelieved. The
whole state of affairs places an enormous responsibility on the Tribunal and higher Courts
for it is now left to them to create a precedent because all the lower authorities failed in
independently interpreting the law. And if somebody did it, he was dis-believed. This
happens particularly when a possible interpretation seems to favour the assessee. Nobody
usually dares decide an issue in favour of the assessee, leaving it to be decided by a
higher judicial authority.2

Importance of precedents
Precedents have their place in the construction of a statute. First, precedents help in
establishing uniformity of interpretation of a statute. This avoids litigation on identical
2 http://www.bcasonline.org/
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matters. Secondly, original precedents lay down law for the first time which possibly was
not law as it was understood.
Having understood the importance of precedents, one must also understand the
limitations of the precedent. There is one school of legal thought that believes that there
can be precedents of two types : declaratory and original.
The declaratory precedent says what the law is. That is, such precedent is not different
from what the law is. The original precedent on the other hand lays down the law for the
first time.
Thus, one can see that if the law is correctly understood, then the declaratory precedent
would either not arise or may not be of use. The genesis of the declaratory precedent lies
in the initial poor understanding of the law. On the other hand, the original precedent lays
down the law for the first time. Therefore, by implication, it is contrary to the express or
implied law, for if it conforms to the law, then it is not, by definition, an original
precedent, it is a declaratory precedent. Now, when an original precedent does not
conform to the law, then it must be laying down a bad law, for anything that does not
conform to the law cannot be a good law, and therefore, by deduction, an original
precedent should not be preferred if the meaning of the statute it seeks to interpret
becomes otherwise clear.

Types of precedents
Authoritative precedents
ARTICLE 141

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The law laid down by Supreme Court of India is binding upon all courts in the country
under Article 141 of the Constitution of India, and numerous cases all over the country
are decided in accordance with the view taken by Supreme Court.

Persuasive precedents
Judicial decisions may be distinguished as authoritative and persuasive. An authoritative
precedent is one which judges must follow whether they approve of it or not.
A persuasive precedent is one which the judges are under no obligation to follow and
which they will take into consideration and to which they will attach such weight as it
seem to them to deserve.
Authoritative precedent are legal sources of law, while persuasive precedents are merely
historical.
PERSUASIVE PRECEDENTS:
Foreign judgments and obiter dicta are not binding upon courts, however they have
persuasive value.
FOREIGN JUDGEMENTS:
Decisions of English courts lower in the hierarchy. For example, the House of Lords may
follow a Court of Appeal decision, and the Court of appeal may follow a High Court
decision, although not strictly bound to do so. In India Supreme Court may follow
judgments of High Courts and High Courts may follow judgments of other High Court.
The English decisions referred to by Supreme Court are of courts of a country from
which India has derived its jurisprudence and large part of Indian laws and in which the
judgments were delivered by Judges held in high repute. Undoubtedly, none of these
decisions are binding upon Supreme Court but they are authorities of high persuasive
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value to which Courts may legitimately turn for assistance. Whether the rule laid down in
any of these cases can be applied by Courts must, however, be judged in the context of
Indian own laws and legal procedure and the practical realities of litigation in
India. Forasol v. Oil and Natural Gas Commission3, AIR 1984 SC 241; 1984 Supp. SCC
263.
The Supreme Court is not bound by the dicta and authority of English cases.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, AIR 1954 SC 2364:
Supreme Court although can be guided by English judgement but cannot ignore the
rulings of Supreme Court itself.
Samant N. Balakrishna, etc. v. George Fernandez and others etc5. AIR 1969 SC 1201;
1969(3) SCC 238.
American cases relating to American constitution cannot be relied for the purpose of
examining fundamental rights under Indian Constitution because of difference of social
conditions and habits of people of both the countries. Pathumma and others v. State of
Kerala and others6, AIR 1978 SC 771: 1978(2) SCC 1:
The Courts have to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly industrialized economy.
Courts can not allow its judicial thinking to be constricted by reference to the law as it
prevails in England or for the matter of that in any other foreign country. Indian Courts
no longer need the crutches of a foreign legal order. Indian courts have to build up
3 AIR 1984 SC 241
4 AIR 1954 SC 236
5 AIR 1969 SC 1201
6 AIR 1978 SC 771
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their own jurisprudence. M.C. Mehta and another v. Union of India and others7, AIR
1987 SC 1086: 1987(1) SCC 395
American cases relating to American constitution cannot be relied for the purpose of
examining fundamental right under Indian Constitution because of difference of social
conditions and habits of people of both the countries. Pathumma and others v. State of
Kerala and others8, AIR 1978 SC 771, 1978(2) SCC 1.
Decisions of Privy Council or Federal Court are not binding on Supreme Court. State of
Bihar v. Abdul Majid9, AIR 1954 SC 245.
OTHER PERSUASIVE AUTHORITIES:
OBITER DICTA:
The judge may go on to speculate about what his decision would or might have been if
the facts of the case had been different. This is an orbiter dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is
not binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive (as opposed to binding)
authority in later cases.
Where there is no direct authority in the form of decided cases, persuasive authority may
be found in legal writings in textbooks and periodicals. In modern times many authors
have been cited frequently in court, both by counsel and by judges in judgments.

7 AIR 1987 SC 1086

8 AIR 1978 SC 771
9 AIR 1954 SC 245
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EXTENT OF BINDING
Courts can use their discretion only when there is no declared principle to be found, no
rule and no authority. The judicial decorum and legal propriety demand that where a
learned single Judge or a Division Bench does not agree with the decision of a Bench of
co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion
of judicial process not to follow this procedure. The judicial review is the duty of judges
of superior courts and tribunals to make the law more predictable. The question of law
directly arising in the case should not be dealt with apologetic approaches. The law must
be made more effective as a guide to behavior. Sundarjas Kanyalal Bhathija and others v.
The Collector, Thane, Maharashtra and others10. AIR 1990 SC 261; 1989(3) SCC 396.
As regards the question of punishment, what is awarded in one matter cannot be the
guiding factor for punishment in another. Murray & Co. vs. Ashok Kumar Newatia and
another11, AIR 2000 SC 833; ;2000(2) SCC 367.
Whether a Division Bench decision is given in an appeal from an original suit or in a writ
petition the ratio is binding on the subsequent Division Bench, and merely because the
previous Division Bench judgment was given in a suit the subsequent Division Bench
cannot refuse to follow the same because it was hearing the proceeding in a writ petition.
The rule of judicial precedent is a very salutary one and is aimed at achieving finality and
homogeneity of judgments.
A precedent may be binding to one court but may be persuasive to other court.
Two courts of equal authority have power to overrule each others decision . Where a
precedent is merely not followed the result is not that the later authority is substituted for
the earlier, but that the two stand by each other conflicting with each other.
10 . AIR 1990 SC 261
11 AIR 2000 SC 833
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It is for the higher court which will in due time decide between the competing precedents,
formally overruling one of them and sanctioning the other as good law. In the mean time
matters remains at large ad the law uncertain.

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WHAT IS BINDING : THE RATIO

DECIDENDI
The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason
for the decision) and obiter dictum (something said by the way).
The principles of Binding Precedent apply only when the facts must be sufficiently
similar and the court must be more senior or on the same level.
It is only the ratio decidendi (the legal reasoning or ground for the judicial decision)
which is binding on later courts under the system of judicial precedent.

RATIO DECIDENDI
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 (ratio decidendi).

OBITER DICTUM
The judge may go on to speculate about what his decision would or might have been if
the facts of the case had been different. This is an obiter dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is
not binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive (as opposed to binding)
authority in later cases.

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A difficulty arises in that, although the judge will give reasons for his decision, he will
not always say what the ratio decidendi is, and it is then up to a later judge to "elicit" the
ratio of the case. There may, however, be disagreement over what the ratio is and there
may be more than one ratio.
In a judgement delivered by a court, what part is a binding precedent is relevant so as to
be precise as to what is ultimately biding proposition to other courts. What the court
decides generally is ratio decidendi or rule of law which it is authority. As against persons
not parties to suit or proceeding general rule of law i,e ratio decidendi is binding . The
rule of law or ratio decidendi is that what is applied and acted upon by the Court . The
rules of law or ratio decidendi are developed by courts and are thus creatures of courts.
The ratio has to be developed by judges while deciding cases before them. Statement
made by judges when giving lectures are statements made in extra judicial capacities and
are therefore not binding. In the course of judgement a judge may make observations not
precisely relevant to deicide the issue. These observations are obiter dicta and are having
no binding authority but are none the less important. These obiter dicta are helpful to
rationalize law only to suggest solutions to problems not yet decided by the Court. Any
ratio decidendi are amenable to distinction on different facts and thus where the meaning
thereof are widened , restricted, distinguished or explained , the latest interpretation of
ratio decidendi in later cases becomes authority to these state of facts and in that sense.
The rule of law based on hypothetical facts is mere obiter dicta and thus not binding.
Not infrequently it is difficult to find out what is the ratio decidendi in the judgement
when several propositions are considered by the Court. In short ratio is general rule
without which the case would have been decided otherwise.
The application of the same law to the differing circumstances and facts of various cases
which have come up to this Court could create the impression sometimes that there is
some conflict between different decisions of this Court. Even where there appears to be
some conflict, it would, we think, vanish when the ratio decidendi of each case is
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correctly understood. It is the rule deducible from the application of law to the facts and
circumstances of a case which constitutes its ratio decidendi and not some conclusion
based upon facts which may appear to be similar. One additional or different fact can
make a world of difference between conclusions in two cases even when the same
principles are applied in each case to similar facts.

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Original and Declaratory

precedents
Original Precedent
1. Meaning: an original precedent is one which creates and applies a new rule.
2. Examples: (a) Bhimsingh vs. JK Government12 AIR 1986 SC 494 in this habeas
corpus case Bhimsingh, an M.L.A. was detained by JK police. The Supreme
Court ordered State Government to release him and to pay Rs. 50,000/- towards
compensation. It is the best example of original precedent. (b) Ashby vs. White13
(1703) 92 ER 126 case is an example of original precedent for injuria sine
damnum.
3. It creates a new rule.
4. The number of original precedents is small.
5. Original precedents develop in law in the country.
6. Original precedent is a new law created and followed in the future.
7. Original precedent is greater than declaratory precedents.
8. There is a heavy burden and task mental tension on the judge who pronounces
original precedents to interpret the new situations.

Declaratory Precedents
1. MEANING: A declaratory precedent is one which is merely the application of an
already existing rule of law.
2. Example: Bhavasagar vs. State of A.P. 1993.
The High Court of Andhra Pradesh followed the rule enunciated in Bhimsinghs
case. Bhavsagar, a merchant in Hyderabad, was arrested by police illegally.
12 AIR 1986 SC 494
13 (1703) 92 ER 126
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Disposing the Habeas Corpus petition, the High Court ordered the state to release
Bhavsagar and to pay Rs. 20,000/- towards the compensation. It is the best
example for the declaratory precedent.
3. It follows it. Because it is already law.
4. The number of declaratory percents is more numerous.
5. Declaratory precedents merely follow the original precedents.
6. Declaratory precedent is already a declaratory law and follows in present and
future.
7. Declaratory precedent is also a good source of law. However, when it is compared
with original precedent. It comes second to it.
8. The judge, who follows declaratory precedents, feels less strain and task. Because
he passes on the road already built in. it is merely the application of an already
existing rule of law.

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Conclusion
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.
The phrase doctrine of precedent has two meanings; the phrase means merely that
precedents are reported may be cited and will be followed by the courts. In the second,
the strict meaning, the phrase means that precedents not only have great authority but
must ( in certain circumstances) be followed. The practice of citing cases and of attaching
weight to them is necessary to secure the certainty of law
A ruling of a superior court is a binding law. It is not of scriptural sanctity but is of ratiowise luminosity within the edifice of facts where the judicial lamp plays the legal flame.
Beyond those walls and de hors the milieu eternal vernal value to the decision, exalting
the doctrine of precedents into a prison-house of bigotry, regardless of varying
circumstances and myriad developments can not be imparted.
An original precedent is one which creates and applies a new rule whereas a declaratory
precedent is one which is merely the application of an already existing rule of law. An
original precedent creates a new rule while a declaratory precedent merely follows it.
A very strong sense of confidence needs to be developed by all who are in the business of
interpreting law to understand that law is powerful and is capable of standing on its own
feet without the clutches of Precedents. Clutches should only complement if the body of
law has shown some known deficiency. But they should be exception rather than the rule
that they have become today. It certainly is not a healthy body if it has all the time to
cling to clutches. The law administrators should be true to themselves and the
Government should show faith in them by showing that such administrators who show
the courage of interpreting the law correctly even in the face of adversity will be
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adequately recognised. Much of the reluctance on the part of the administrator to interpret
the law on his own arises from the lack of trust placed in him by the Government.

REFERENCES
BOOKS REFERRED
SP Sathe, Administrative law(2012),7th Edition, Lexis-Nexis Butterworths
Wadhwa,Nagpur
I.P Massey, Administrative law, (2007), Eighth Edition, Eastern Book company
Our Constitution: An Introduction to Indias Constitution and Constitutional Law
2nd Edition by Subhash C. Kashyap.
Black's Law Dictionary, p. 1059 (5th ed. 1979).

WEBSITES REFERRED
1.
2.
3.
4.

http://legal-dictionary.thefreedictionary.com
http://www.bcasonline.org/
http://www.legalserviceindia.com/
http://en.wikipedia.org/

Statutes
The Constitution of India, 1949

Judicial pronouncements/cases

Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC
263.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, AIR 1954 SC
236
Samant N. Balakrishna, etc. v. George Fernandez and others etc. AIR 1969 SC
1201; 1969(3) SCC 238
Pathumma and others v. State of Kerala and others, AIR 1978 SC 771: 1978(2)
SCC 1:

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M.C. Mehta and another v. Union of India and others, AIR 1987 SC 1086:
1987(1) SCC 395

State of Bihar v. Abdul Majid, AIR 1954 SC 245.

Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra

and others AIR 1990 SC 261; 1989(3) SCC 396.

Murray & Co. vs. Ashok Kumar Newatia and another, AIR 2000 SC 833; ;
2000(2) SCC 367.

Bhimsingh vs. JK Government AIR 1986 SC 494

Ashby vs. White (1703) 92 ER 126

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