LEGAL METHOD

ASSIGNMENT ON

SOURCES OF LAW

SUBMITTED BY:- SUBMITTED TO:-

HERA FATIMA Prof. EQBAL HUSSAIN

B.A. LLB (HONS.)

3rd SEMESTER

JAMIA MILLIA ISLAMIA

 ACKNOWLEDGEMENT

At the outset, I would like to thank my Prof. Eqbal Hussain (Sir), faculty of
law, Jamia Millia Islamia, for giving me an opportunity to work on such a vital
topic of “Sources Of Law” and being a guiding force throughout the course of
its submission and being instrumental in the successful completion of this
assignment without which, my efforts would have been in vain.

I thank my Prof. (Dr.) Eqbal Hussain (Sir) for all the guidance and support.

I would also like to express my heartfelt gratitude to my family members and

friends, for being immeasurably accommodating the requirements of this
humble endeavour.
Table of Contents
 Introduction
 DEFINITION OF ‘LAW’- ARTICLE 13(3) OF CONSTITUTION OF INDIA
 SOURCES OF LAW
 Legal source of English Law
 Sources of Law in India
 PRECEDENT AS A SOURCE OF LAW
 Types of precedent
 Judicial precedent as a source of law
 Theories of Judicial Law
 ADVANTAGES AND DISADVANTAGES OF PRECEDENTS
 EXCEPTIONS TO BINDING PRECEDENT
 CIRCUMSTANCES DESTROYING OR WEAKENING THE BINDING FORCE
OF PRECEDENTS.
 BIBLIOGRAPHY
INTRODUCTION
In any society, everybody is subject to the law. Everybody must do as the law says, or face the
punishments which can be handed out to law-breakers. Journalists are no different. They, too,
must obey the laws of their society. However, there are certain laws which will affect journalists
especially, and that is what we shall deal with in the next few chapters.

Societies have laws in order to protect people from the actions of other people. It is clearly
impossible for everybody in any society to have absolute freedom: as one person exercised that
freedom, it would trample upon somebody else's freedom. For example, if my neighbour plants
pineapples in my garden, then I am not free to use that piece of land myself. It is for this reason
that societies have property laws.

Persons carrying different vocations prefer to identify ‘law’ as to the purpose the prescribed set
of rules are intended to achieve:-

 A citizen may think of law as a set of rules which he must obey.

 A lawyer who practices law may think of it as a vocation.
 A legislator may look at law something created by him.
 A judge thinks of law as a guide and principles to be applied to make decisions.
 A social scientist may think of law as a means of social control.
 A Legal Philosopher may consider law as dictate of reason or right reasoning.

In legal sense the definition of ‘law’ includes all the rules and principles which regulate our
relations with other individuals and the State and which are enforced by the State.

The law puts limits on each person's freedom in order to protect other people's freedom. We are
free to drive a car on the road, but only if we possess a valid driving licence; and, even then, we
must keep to one side of the road, and obey speed limits and road signs. In this way, although our
freedom to drive is restricted, we are protected from other people's careless or unskilled driving,
which would make it impossible for us to drive safely at all.

In order to make people obey the laws of the society, there have to be punishments. If you decide
to drive a car even though you have no licence (and if you are caught), you may be fined. If you
cannot or will not pay the fine, you can be sent to jail. The main reason that many people obey
the law is that they know they may be punished if they break the law.

There are many different legal systems in the world - traditional and modern, Christian and
Islamic - and they regulate society in different ways. However, the reason the laws are there at
all is the same - to limit people's rights in certain ways in order to protect other people's rights;
and to punish those who ignore the laws.
DEFINITION OF ‘LAW’- ARTICLE 13(3) OF CONSTITUTION OF INDIA

Clause 3 of article 13 of the Constitution of India defines ‘law’ as under

‘Law’ includes any

 Order
 Ordinance
 Bye-laws
 Rule
 Regulation
 Notification
 Custom or usage having the force of law

An amendment to any existing law is also law.

Law in the context of the provisions of the Constitution Of India may also be defined as-“It is an
act passed by the legislature and assented to by the President of India or Governor of a State.”
(Article 111 and 200 of the Constitution of India).
 SOURCES OF LAW
The term ‘sources of law’ is used in different senses. The general meaning of the word ‘source’
is ‘origin’. There is difference of opinion among the jurists regarding the sources of law.

Austin says that the term source of law has three different meanings.
1. The term refers to immediate or direct author of the law which means the sovereign in the
country.
2. The term refers to the historical document from which the body of law can be known.
3. The term refers to the causes which have brought into existence the rules which later on acquire
the force of law and here he says for example, the customs, judicial decision, equity etc.

Historical Jurists- Savigny, Henrye Maine, Puchta- Law is not made but it is formed. The
foundation of law lies in the common consciousness of the people which manifests itself in the
practices usages and customs of the people. Therefore, customs and usages are the sources of
law.

Sociological Jurists- They protest against the orthodox conception of law according to which
law emanates from a single authority in the state. Law is taken from many sources and not from
one. Ehlrich- He says that at the present as well as any other time the centre of gravity of legal
development lies not in legislation, not in science nor in judicial decisions but in society itself.

Duguit- Law is not derived from any single source and the basis of law is public service. There
need not be any specific authority in a society which has the power of making laws.

According to Salmond classification of sources of law can be done as following :

1. Formal Sources- It is as that from which rule of law derives its force and validity. The formal
source of law was the will of the state as manifested in statutes or decisions of the court and the
authority of law proceeds from that.

2. Material Sources- They are those from which is derived the matter though not the validity of law
and the matter of law may be drawn from all kind of material sources.

a. Historical Sources- In this rules are subsequently turned into legal principles, were first to be
found in an Unauthoritative form. They are not allowed by the law courts as of right. They
operate mediatory and indirectly.
i. Unauthoritative Writings

b. Legal Sources- They are sources which are the instruments or organs of the state by which legal
rules are created for e.g. legislation and custom. They are authoritative and are followed by the
courts as of right. They are the gates through which new principles find admittance into the
realm of law.
i. Legislations
ii Precedent
iii.Customary Law
iv.Conventional Law- Treatise (CK Allen)
 Allen says that Salmond has attached insignificant attention to historical sources which demands
more attention.
Keeton says that state is the organization which enforces the law. Therefore, technically state
cannot be considered as a source of law.
According to Salmond, a statute is a legal source which must be recognized and writings of
Bentham are without legal authority

Legal source of English Law

There are two sources of English Law

1. Enacted Law having its source in legislation- It consists of statutory law. Legislation is the act of
making of law by formal and express declaration of new rules by some authority in the body
politic which is recognized as adequate for that purpose.

2. Case Law having source in judicial precedence- It consists of common law which we find in law
reports. Precedent is also making of law but by recognition and application of new rules by the
courts in the administration of justice. Case laws are developed by the courts whereas enacted
laws come into the courts ab extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law.
Though, they are not much accepted.
Sources of Law in India

As the inevitability of law in life of state is well-known, the question automatically crops up as to
how law originate? What are its sources?
By sources of law we mean its beginning as law and the point from which it springs or emanates.
As regards law there are six important sources.

(A) Customs
Customs are oldest source of law. It is the outcome of habits. When a particular habit is followed
for a long time by the people regularly and habitually, the custom comes into being. When
written laws were more conspicuous by their absence in the primitive society, it was customary
laws that regulated human conduct in the primitive society. It is said that kings have no power to
create custom and perhaps less to destroy it. Customs largely influence the legal system of a state
and the state gets rid of the bad customs like Sati, Polygamy, and Dowry etc. only by means of
legal impositions. The United Kingdom provides the best example of customary laws which are
found in the common law of England. In the United Kingdom the law and custom are so
intimately connected with each other that the violation of convention custom will lead to the
violation of law.

(B) Religion
The religion is another important source of law. It played an important role in the primitive
period when men were very much religious minded and in the absence of written laws the
primitive people obeyed religion thinking it of divine origin. In the medieval period, most of the
customs that were followed were only religious customs. Even today the Hindu Laws are
founded on the code of Manu and the Mohammedan Laws are based on the Holy Koran. The
religious codes become a part of the law of the land in the state incorporates the religious codes
in its legal system.

(C) Judicial Decisions

Since the dawn of the human civilisation the dispute between two parties is referred to a third
party who acts as the arbiter. His decision is generally obeyed by both the parties. The arbiter
may be a tribal chief or a priest. But with the passage of time, the judicial organ of the state is
given power to decide cases between the parties. While deciding a case and pronouncing a
judgment, the judges generally apply their own common sense and justice. This is known as
Judge-made laws or case laws. Justice Holmes Commented that "judges do and must make
laws". The principle by which a judicial decision becomes a precedent is known as "Stare
Decisis".
(D) Scientific commentaries
Chief Justice Hughes of the U.S.A. opines that " We are living under a constitution and the
constitution is what the judges say it is". The law needs interpretation and the scientific
commentaries and interpretations by eminent jurists have contributed a lot for the evolution of a
legal system. The views of Blackstone in the U.K., Kent in the U.S.A. have made tremendous
impact on the legal system of their respective countries. The opinions of these expert legal
luminaries are always kept in high esteem by the judges and the courts.

(E) Equity
The term 'equity' literally means 'just', 'fairness' and according to 'good conscience'. When the
existing law is inadequate or silent with regard to a particular case, the judges generally apply
their common sense, justice and fairness in dealing with such cases. Thus, without 'equity' the
term law will be devoid of its essential quality.

(F) Legislation
This is the most important and modern source of law. The legislature is that organ of the state
whose primary function is to make laws. To Leacock the legislatures deliberate, discuss and
make laws. Thus, law can be defined as the opinion of the majority legislators. They are recorded
in the Statute Book. When the legislature is not in session, the executive is empowered to issue
ordinances, decrees etc. which are as good as the laws made by the legislatures

Besides the above six sources of law we can add two more sources of law in the present days.
The executive in a parliamentary democracy has the support of the majority legislators in the
legislature enabling it to make laws according to its choice. The executive in a presidential
system can influence legislation in the floor of the legislature through its party men. With the
advent of time, the legislature is required to make laws in a large number of subjects. Due to
paucity of time, the legislature makes laws in the skeleton form and the flesh and blood is added
to it by the executive. This is termed as 'delegated legislation which has considerably enhanced
the role of the executive in the field of legislation. Public opinion in this age of democracy plays
a vital role in the process of lawmaking. In Switzerland, with direct democracy, public opinion is
reflected through Landsgeminde, Referendum and Initiative, which paves the way for making
laws for the state.
PRECEDENT AS A SOURCE OF LAW
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."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

What is the meaning of precedent as a source of law?

Loose Sense- The precedence that are reported may be cited and probably be followed by the
courts. This is was done till 19th Century.
After that, another meaning got momentum. Strict meaning said that precedence not only have
great authority but must be followed in certain circumstances.

Holdsworth- He supports the loose meaning.

Goodheart- He supports the strict meaning

Types of precedent
Verticality
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 precedent established by the appellate court for their jurisdiction, and all supreme
court precedent.

The Supreme Court of California's explanation of this principle is that under the doctrine of stare
decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts
exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The
decisions of this court are binding upon and must be followed by all the state courts of
California. Decisions of every division of the District Courts of Appeal are binding upon all the
justice and municipal courts and upon all the superior courts of this state, and this is so whether
or not the superior court is acting as a trial or appellate court. Courts exercising inferior
jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function
to attempt to overrule decisions of a higher court.

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 follow decisions of
the United States Supreme Court on issues of federal law, federal courts must follow decisions of
the courts of each state on issues of that state's law. If there is no decision on point from the
highest court of a state, the federal courts must either attempt to predict how the state courts
would resolve the issue, by looking at decisions from state appellate courts at all levels, or, if
allowed by the constitutions of the relevant states, consult the state supreme courts. Decisions of
the lower federal courts (i.e. the federal circuit courts and district courts) are not binding on any
state courts, meaning that interpretations of certain federal statutes can and occasionally have
diverged depending upon whether the forum is state or federal. In practice, however, judges in
one system will almost always choose to follow relevant case law in the other system to prevent
divergent results and to minimize forum shopping.

Horizontality
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.

In the United States federal court system, the intermediate appellate courts are divided into
"circuits". Each panel of judges on the court of appeals for a circuit is bound to obey the prior
appellate decisions of the same circuit.[citation needed] Precedent of a United States court of
appeals may be overruled only by the court en banc, that is, a session of all the active appellate
judges of the circuit, or by the United States Supreme Court.

When a court binds itself, this application of the doctrine of precedent is sometimes called
horizontal stare decisis. The State of New York has a similar appellate structure as it is divided
into four appellate departments supervised by the final New York State Court of Appeals.
Decisions of one appellate department are not binding upon another, and in some cases the
departments differ considerably on interpretations of law.

Binding precedent
Precedent that must be applied or followed is known as binding precedent (alternately
metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare
decisis, a lower court must honor findings of law made by a higher court that is within the
appeals path of cases the court hears. In state and federal courts in the United States of America,
jurisdiction is often divided geographically among local trial courts, several of which fall under
the territory of a regional appeals court. All appellate courts fall under a highest court
(sometimes but not always called a "supreme court"). By definition, decisions of lower courts are
not binding on courts higher in the system, nor are appeals court decisions binding on local
courts that fall under a different appeals court. Further, courts must follow their own
proclamations of law made earlier on other cases, and honor rulings made by other courts in
disputes among the parties before them pertaining to the same pattern of facts or events, unless
they have a strong reason to change these rulings (see Law of the case re: a court's previous
holding being binding precedent for that court).

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which
must be followed by all lower courts under common law legal systems. In English law it is
usually created by the decision of a higher court, such as the Supreme Court of the United
Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and
pluralist systems precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by
things decided. It ensures certainty and consistency in the application of law. Existing binding
precedent from past cases are applied in principle to new situations by analogy.

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent

of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means
that:

(1) the question resolved in the precedent case is the same as the question to be resolved in the
pending case,

(2) resolution of that question was necessary to the disposition of the precedent case;

(3) the significant facts of the precedent case are also presented in the pending case, and

(4) no additional facts appear in the pending case that might be treated as significant.

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but
will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of
the precedent.

Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national
system is the Supreme Court, and underneath are lower federal courts. The state court systems
have hierarchy structures similar to that of the federal system.
The U.S. Supreme Court has final authority on questions about the meaning of federal law,
including the U.S. Constitution. For example, when the Supreme Court says that the First
Amendment applies in a specific way to suits for slander, then every court is bound by that
precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower
court judge disagrees with a higher court precedent on what the First Amendment should mean,
the lower court judge must rule according to the binding precedent. Until the higher court
changes the ruling (or the law itself is changed), the binding precedent is authoritative on the
meaning of the law.

Although state courts are not part of the federal system, they are also bound by U.S. Supreme
Court rulings on federal law. State courts are not generally bound by Federal District courts or
Circuit courts, however. A federal court interpreting state law is bound by prior decisions of the
state supreme court.

Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal
district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is
bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, since the
Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals
can interpret the law how they want, so long as there is no binding Supreme Court precedent.
One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a
case) is if there is a conflict among the circuit courts as to the meaning of a federal law.

There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts
needs to be accepted, and an efficient system of law reporting. 'A balance must be struck
between the need on one side for the legal certainty resulting from the binding effect of previous
decisions, and on the other side the avoidance of undue restriction on the proper development of
the law (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.

A) Binding precedent in English law

Judges are bound by the law of binding precedent in England and Wales and other common law
jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many
countries throughout the world, particularly in mainland Europe, civil law means that judges take
case law into account in a similar way, but are not obliged to do so and are required to consider
the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not
binding. Under the English legal system, judges are not necessarily entitled to make their own
decisions about the development or interpretations of the law. They may be bound by a decision
reached in a previous case. Two facts are crucial to determining whether a precedent is binding:

The position in the court hierarchy of the court which decided the precedent, relative to the
position in the court trying the current case.Whether the facts of the current case come within the
scope of the principle of law in previous decisions.
 B) Super stare decisis
Super-stare decisis is a term used for important precedent that is resistant or immune from being
overturned, without regard to whether correctly decided in the first place. It may be viewed as
one extreme in a range of precedential power,[11] or alternatively, to express a belief, or a
critique of that belief, that some decisions should not be overturned.

In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article
they wrote about testing theories of precedent by counting citations.[12] Posner and Landes used
this term to describe the influential effect of a cited decision. The term "super-precedent" later
became associated with different issue: the difficulty of overturning a decision.[13] In 1992,
Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v.
Casey for endorsing the idea that if one side can take control of the Court on an issue of major
national importance (as in Roe v. Wade), that side can protect its position from being reversed
"by a kind of super-stare decisis."[14] The controversial idea that some decisions are virtually
immune from being overturned, regardless of whether they were decided correctly in the first
place, is the idea to which the term "super stare decisis" now usually refers.

The concept of super-stare decisis (or "super-precedent") was mentioned during the
interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary
Committee. Prior to the commencement of the Roberts hearings, the chair of that committee,
Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe
as a "super-precedent." He revisited this concept during the hearings, but neither Roberts nor
Alito endorsed the term or the concept.

C) Advantages and disadvantages

There are advantages and disadvantages of binding precedent. The advantages include: certainty,
consistency, preciseness, and time-saving. The disadvantages include: rigidity, complexity,
illogical reasoning (the differences between some cases may be very small and appear illogical),
and slow to grow (some areas of the law are unclear or in need of reform)

Persuasive precedent
Persuasive precedent (also persuasive authority or advisory precedent) is precedent or other legal
writing that is not binding precedent but that is useful or relevant and that may guide the judge in
making the decision in a current case. Persuasive precedent includes cases decided by lower
courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel
systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts
versus federal courts in the United States), statements made in dicta, treatises or academic law
reviews, and in some exceptional circumstances, cases of other nations, treaties, world judicial
bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts in other
jurisdictions that have previously dealt with similar issues. Persuasive precedent may become
binding through its adoption by a higher court.

In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is
taken into account by the courts.

A) Lower courts

A lower court's opinion may be considered as persuasive authority if the judge believes they
have applied the correct legal principle and reasoning.

B) Higher courts in other circuits

A court may consider the ruling of a higher court that is not binding. For example, a district court
in the United States First Circuit could consider a ruling made by the United States Court of
Appeals for the Ninth Circuit as persuasive authority.

C) Horizontal courts

Courts may consider rulings made in other courts that are of equivalent authority in the legal
system. For example, an appellate court for one district could consider a ruling issued by an
appeals court in another district.

D) Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not
binding, will often be persuasive to lower courts.

The obiter dicta is usually translated as "other things said", but due to the high number of judges
and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for
the decision).For this reason, the obiter dicta may usually be taken into consideration.

E) Dissenting opinions

A case decided by a multi-judge panel could result in a split decision. While only the majority
opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. A
judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting
judge's reasoning persuasive. In the jurisdiction of the original decision, however, a judge should
only overturn the holding of a court lower or equivalent in the hierarchy. A district court, for
example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
 F) Treatises, restatements, law review articles

Courts may consider the writings of eminent legal scholars in treatises, restatements of the law,
and law reviews. The extent to which judges find these types of writings will vary widely with
elements such as the reputation of the author and the relevance of the argument

G) Courts in other jurisdictions

An English court might cite judgments from countries that share the English common law
tradition. These include other Commonwealth states (for example Canada, Australia, or New
Zealand) and, to some extent, the United States (most often where the American courts have
been particularly innovative, e.g. in product liability and certain areas of contract law).It is
controversial whether it is appropriate for a U.S. court to consider foreign law or precedent. The
Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact
that the European Union forbids the death penalty as part of their reasoning, while Chief Justice
Rehnquist denounced the "Court's decision to place weight on foreign laws." The House of
Representatives passed a nonbinding resolution criticizing the citing of foreign law and
"reaffirming American independence."[citation needed] However, it is relatively uncontroversial
for American state courts to rely on English decisions for matters of pure common (i.e. judge-
made) law; this was most common through the 19th and early 20th century, until the growing
body of American law made the practice of referring to England increasingly unnecessary.

Within the federalist legal systems of several common-law countries, and most especially the
United States, it is relatively common for the distinct lower-level judicial systems (e.g. state
courts in the United States and Australia, provincial courts in Canada) to regard the decisions of
other jurisdictions within the same country as persuasive precedent. Particularly in the United
States, the adoption of a legal doctrine by a large number of other state judiciaries is regarded as
highly persuasive evidence of the general preferability of that doctrine; a good example is the
adoption of comparative negligence (replacing contributory negligence as a complete bar to
recovery) in Tennessee by the 1992 Tennessee Supreme Court decision McIntyre v. Balentine
(by which point all US jurisdictions save Tennessee, five other states, and the District of
Columbia had adopted comparative negligence schemes). Moreover, in American law, the Erie
doctrine requires federal courts sitting in diversity actions to apply state substantive law, but in a
manner consistent with how the court believes the state's highest court would rule in that case.
Since such decisions are not binding on state courts, but are often very well-reasoned and useful,
state courts cite federal interpretations of state law fairly often as persuasive precedent, although
it is also fairly common for a state high court to reject a federal court's interpretation of its
jurisprudence
Judicial precedent as a source of law

Judicial precedent is the source of law where past decisions create law for judges to refer back to
for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta
movere, more commonly referred to as ‘stare decisis', meaning to “stand by decided matters”. A
binding precedent is where previous decisions must be followed. This can sometimes lead to
unjust decisions, which I will address when talking about the advantages and disadvantages of
binding precedent. First I will address how the process of judicial precedent works, including the
hierarchical structure of the courts, moving on to the advantages and disadvantages of using the
doctrine.

A binding precedent is created when the facts of a latter case are sufficiently similar to the facts
of a previous case. The doctrine of precedent is often referred to as being a rigid doctrine. Within
the court hierarchy, every court is bound to previous decisions made by courts higher than them.
At the very top of the court hierarchy is the European Court of Justice, followed by the House of
Lords, which is considered to be the supreme court as many laws do not concern European
Union law. Decisions made by the House of Lords become binding on all other courts within the
hierarchy. Below the House of Lords is the Court of Appeal, which has two divisions, Civil
division and Criminal division. Both divisions are bound to decisions made by the House of
Lords and the European Court of Justice. Additionally, they are bound to their own decisions,
with the exception that the Criminal division is more flexible where a case involves a person's
liberty. The Divisional Courts along with the High Court are also bound to decisions made by the
House of Lords and the European Court of Justice, with the addition to the Court of Appeal, and
the Divisional Courts in the case of the High Court.

Between 1898 and 1966, the House of Lords were bound to their own previous decisions,
making the law consistent due to rulings made in London Street Tramways v London County
Council [1898]. In 1966, the Lord Chancellor issued a Practice Statement, stating, “the rigid
adherence to precedent may lead to injustice in a particular case and also unduly restrict the
proper development of the law”. It also stated that the House of Lords would be able to “depart
from a previous decision when it appears right to do so” (supra n.2). The House of Lords attempt
to follow the majority of past decisions. Exceptions include where unjust decisions result from
following past decisions. When deciding cases, there is a test of subjective recklessness that is
relied upon. This is where certain aspects of particular cases are taken into account. For example,
in the case of R v Caldwell [1982], the defendant got sacked from a hotel that he worked at; and
one night got drunk and set fire to the hotel, with the intention to cause damage to the property.
However, there were also guests sleeping in the hotel. He was therefore charged with not only
arson, but also with intent to endanger human life. Lord Diplock decided to remove the objective
test, as being drunk was not seen as a defence for recklessness. In R v G [2003] the objective test
was put back in as it was decided that the defendants should be judged with consideration to their
age and understanding. Two boys, one aged eleven and the other twelve, camped in a yeard
behind a shop with permission from their parents. They set fire to some newspapers, thinking
that the fire would go out itself. However, the fire spread to nearby bins and finally to the shop.
Over £1 million of damage was caused. The boys were unaware of the damage that they had
caused as they had left before the fire spread. As they did not intend the damage it was decided
that their infancy should be taken into account. In their defence, reckless behaviour is where the
defendant is aware of the risk, and seeing as the boys did not intend the damage, the objective
test was put back in.

These cases show that the House of Lords are prepared to depart from past decisions when it is
desirable to do so. Similarly, in Elliot v C [1983], a 14 year old girl who had learning difficulties,
was playing with matches and set a neighbours shed on fire. The case was acquitted on the basis
that she was unaware of the damage caused. However, an appeal by the prosecution was allowed,
based on the Caldwell test that being unaware of the damage caused is irrelevant. This case is in
between R v Caldwell (supra n.4) and R v G (supra n.5), as it is decided on the basis of the
Caldwell test, but has similar facts to the latter case. This could cause problems for future cases,
making it difficult for judges to decide which case is best suited to follow.

The Practice Statement marked an important change to the doctrine of precedent. The first major
use was in Herrington v British Railway Board [1972], however it wasn't until the 1980's and
1990's that the House of Lords showed more willingness to use the Practice Statement. In Pepper
v Hart [1993], a young child was burned on an electric railway. The playground where the child
was playing was separated from the railway by a fence that was damaged. The stationmaster
knew that the children often trespassed onto the railway, but did nothing about it. The previous
case of Addie v Dumbreck [1929] held that the occupier of land had no duty of care for the
trespassers; it was in fact the duty of the parents. However, this case was overruled in the case of
Pepper v Hart (supra n.8) as the House of Lords held that the judges could refer to Hansard in
interpreting the case. They came to the conclusion that the case “involved the law on the duty of
care owed to a child trespasser”, and found that the stationmaster did not do anything to ensure
the safety of the child trespassers, even though he was aware of the risk.

The Court of Appeal, being below the House of Lords in the court hierarchy, is bound to any
decisions made by the House of Lords. However, the Court of Appeal tried to challenge this
authority in Broome v Cassell [1971] and also in the latter case of Miliangos v George Frank
(Textiles) Ltd [1976]. However, the House of Lords rejected both attempts. This suggests that
the Court of Appeal along with many other courts lower in the hierarchy do not exercise any
power in relation to the doctrine of precedent.

The Court of Appeal is also bound to its own decisions as decided in Young v Bristol Aeroplane
Company Ltd [1944], along with three exceptions. These include the right to choose between
prior conflicting decisions, to refuse to follow a decision that is inconsistent with the House of
Lords decisions and to refuse to follow a decision that is made per incurium (in error). The Court
of Appeal attempted to challenge this authority in Davis v Johnson [1979], and Lord Denning
suggested that the Court of Appeal should have similar powers as the House of Lords. However,
this approach would result in the House of Lords becoming useless as the Court of Appeal is
usually first to deal with cases, and would affectively break the court hierarchy.

Although the doctrine of precedent is considered to be a fetter upon the English Legal system,
there are also ways of avoiding the strict applications of precedent. Three ways in which
precedent may be avoided include distinguishing, overruling and reversing. Distinguishing is
where a judge is able to draw differences between the case he is deciding and a past case that he
would usually have to follow, showing that there are not enough sufficiently similar facts
between the cases to bind them. Therefore he would not be bound to a past decision. This was
shown in the differences between Balfour v Balfour [1919] and Merrit v Merrit [1971]. Although
both cases involve husband and wife, in Balfour v Balfour it was merely a domestic
arrangement meaning there was no legal intention. However, in Merrit v Merrit, the agreement
was made after they had split up, making the agreement legally binding.

Overruling is where the court later decides that the decision in a previous case is wrong. The
House of Lords exercising the power of the Practice Statement, to overrule its own decisions, can
demonstrate this. The House of Lords overruled a past decision made in Davis v Johnson in
Pepper v Hart, whereby the House of Lords ruled that Hansard could be referred to in order to
understand the actual meaning of certain words within an Act of Parliament.

Finally, reversing is where a court overturns a decision made by a court lower than itself in the
court hierarchy. For example, the Court of Appeal could reverse a decision made by the High
Court.

As the question addresses, the doctrine of precedent can be seen as a restraint on the
development of law due to its strict application. However, judicial precedent does have its
advantages. The main advantage of using precedent is that it provides certainty in the law. As
cases with sufficiently similar material facts are bound by past decisions, it provides an idea of
how the case will be decided. Another advantage is that it provides consistent decisions within
the law, which also ensures fairness. Consistency also provides that people are reassured in the
law, as they do not feel that they are being treated unfairly.

However, precedents could become ‘out of date', for example in R v R [1991], the laws changed
in the respect that a man could now be guilty for raping his wife, whereas before he couldn't.
This can be referred to as being persuasive precedent, which is not binding on the courts. A
judge has the right to consider a persuasive precedent and be persuaded to follow it if he believes
that it provides the correct principle. The introduction of the Practice Statement ensured that
flexibility was restored in the development of the law. The ability to overrule past decisions
means that there is room for law to develop at the same rate as society changes. Precedent also
provides a time saving element, which in the long run also saves money. Being bound to past
decisions, courts avoid long periods of litigation. As cases with sufficiently similar facts would
have already been decided, it saves the process of deciding the legal ruling, which can often take
a long time.

However, the rigid approach of the doctrine is often criticised for inflexibility. As courts lower
down in the court hierarchy are bound to decisions made by courts higher than them, any bad or
unjust decisions made would have a knock on affect, as they are bound to follow them. In
defence of this, the House of Lords are able to depart from past decisions in order to amend
unjust decisions made by means of the Practice Statement. However, few cases actually reach the
House of Lords, meaning that it down to the other courts to decide cases. Although precedent is
seen as being consistent, it also brings complexity to the law. Seeing as there are millions of
cases decided by court, it is often difficult to find relevant past cases. Application of a wrong
past decision could lead to an unjust decision being made in a latter case. The law also becomes
complex as previously discussed, when cases are distinguished and a new precedent is formed.
This is demonstrated in the cases of R v Caldwell and R v G, which later made the decision in
Elliot v C.
Theories of Judicial Law
Declaratory Theory of Precedence- It is inapplicable to the principles of equity. Principles of
equity has its origin in either custom or legislation. Declaratory theory says that the binding
value is low since court simply declares on the basis of past historical values.

Authoritative Precedent- Judges must follow whether they approve of it or not.

Persuasive Precedent- Judges are under no obligation to follow but which they will take into
consideration and to which they will attach such weight as it seems to them proper.
Therefore, Authoritative Precedents are legal sources whereas Persuasive Precedents as historical
sources.

Disregarding a Precedent- Over ruling is a way by which we disregard a precedent. There are
circumstances which destroys the binding force of the precedent.
1. Abrogated Decision- A decision when abrogated by a statutory rule.
2. Affirmation or reversal by a different ground- The judgment which was rendered by a
lower court loses its relevance if such a judgment is passed by a higher court.
3. Ignorance of Statute- In such cases, the decision loses its binding value.
4. Inconsistency with earlier decisions of High Court
5. Precedent sub-silento or not fully argued
6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment.
7. Erroneus Decision

What is Ratio Decindi- The previous case is binding as to its ratio decidendi but ratio decidendi
is a vague concept. Ratio decidendi is the binding part for the case at hand.
Goodheart- He does not accept the classical view that ratio is the principle of law which links
the essential determination of the case with the essential or material facts of it and the statement
of the judge may or may not do that or may be formed too widely or too narrowly.
It is the general ground upon which the decision is based- Supreme Court of India
How to ascertain Ratio Decidendi
Krishna Kumar v. Union of India- AIR 1990 SC 1782
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 pre-existing rule of law either statutory or
judgment and minor premise consisting of the material facts of the case under immediate
consideration. Therfore, we find that it is the ratio decidendi which is a binding precedent.
Other material part is the Obiter Dictum.
Process of Reasoning-
1. Major Premise
2. Minor Premise
Union of India v. Maniklal Banerjee- AIR 2006 SC 2844- Only ratio decidendi is binding and
has precedent value.
State of Orissa v. Sudhanshu Shekhar Mishra- AIR 1968 SC 647- A decision is an authority
for what it decides and not for what can logically be deduced from it.
The only thing in a judge's decision binding a party is the principle upon which the case is
decided. On our analysis, we have to isolate the ratio of the case.
 A decision contains:
1. Finding of Material Facts- Direct and inferential
2. Statement of the principle of law applicable to the legal problem disclosed by the facts.
3. Judgments based on the combined effects of the above two.
Ratio Decidendi is a statement of law applied to the legal problems raised by the facts as found
upon which the decision is based.
Dalveer Singh v. State of Punjab- 1979 3 SCC 745- Though we are able to find out the
ingredients from the decision. But later on, when there is a similar situation, it is very difficult
for him to apply the ratio in that case because a rigorous division of facts has to be made which is
not possible.
It is correct that a decision on a question of sentence depending upon the facts and circumstances
of a case can never be regarded as a binding precedent, much less 'law' declared under article 141
of Constitution of India so as to bind all law courts within the territory of India.
Minerva Mills v. Union of India- AIR 1980 SC 1789- If a provision is uphold by the majority,
the fact that the reasoning of some of the judges is different from the ratio of that case will not
affect its validity.
Fazlun B. v. Khadarwali- AIR 1980 SC 1730-
1. Where the earlier decision is altogether unpalatable to the court in the latter case, the latter
court may be persuaded to interpret it as narrowly as possible.
2. The limit of the process is reached when some judges in extreme and unusual case are apt to
cease on almost any factual difference between the previous case and the case before them in
order to arrive at a different decision and the precedent is an authority on its 'actual facts'.
AR Anutulay v. RS Nayak- Order delivered without reference to relevant provision of the
Constitution of India or without arguments or without an act or a citation of authority is per
incurium.
Amrit Das v. State of Bihar- AIR 2000 SC 2264- Decisions sub-silento have no binding value.
Saeyada Mossarrari v. Hindustan Steel Limited, Bhilai Steel Plant- AIR 1989 SC 406-
Sometimes well considered Obiter Dicta are taken as precedent but every passing expression of a
judge cannot be treated as an authority.
Swaran Singh Lamba v. Union of India- AIR 1995 SC 1729- Normally, even an Obiter Dicta is
expected to be obeyed and followed. It is binding on the High Court but has only persuasive
value for the Supreme Court.
Three Tests- (Ratio Decidendi Test)
1. Wambaugh's Test- It is an imperative proposition of law without which case would have been
decided otherwise. Inversion Test is in form of a dialogue between him and his student. He sits
with him and gave him some orders.
a. Frame carefully the supposed proposition of law and then insert in the proposition, a word
reversing its meaning.
b. Let him enquire if the court had conceived this new proposition to be good and had in its mind
the decision would have been the same.
c. If the answer be affirmative, then, however excellent the original proposition may be, the case
is not a precedent for that proposition.
d. If the answer be negative, the case is an authority for the original proposition.
e. In short, when a case turns only on one point, the proposition or the doctrine of the case, the
reason of the case, the ratio decidendi must be a general rule without which the case must have
been decided otherwise.
f. Sankara Narayanan v. Director of Legal Studies, Madras Law Journal- Justice Ismail was in
a law teacher in his initial days. Lecturers were removed without giving any opportunity of
hearing. The service rules said that only permanent employees be given the opportunity of
hearing. There was only one issue:
i. Whether removal was legal or not.
1. Old teachers are more competent than the new teachers.
2. In case of removal, opportunity of hearing should be given.
ii. Second proposition materially affects the decision, hence it is the ratio.
g. Rupert Cross- When Wambaugh states that we must insert the proposition that has a reverse
meaning from that of the supposed ratio, does he mean contrary or contradictory proposition?
Rules of law are complex proposition and contain contrary principles.
i. Is ratio decidendi a proposition without which a case could not logically have been
decided as it was decided or is the one without which the case would not have been decided as it
was decided.
ii. How to apply Wambaugh’s Test when the decision contains more than one ratio
decidendi?
iii. In some cases, the court may consider some facts as immaterial for the decision which
others may consider as material.
2. Halsbury’s Test- Quinn v. Liatham- 1901 Appeal Cases 495- After stressing that every
judgment should be read in the lines of the facts of the case. Lord Halsbury says that a case is
only authority for what it actually decides. I entirely deny that it can be quoted for a proposition
that may seem to flow logically from it.Tamillarasan’s Case- Madras Law Journal- 1991 Case.
3. Goodheart’s Test-Ratio Decindi is found out by ascertaining the facts treated as material by
the judge. The court is bound by the earlier decision must come to a similar conclusion unless
there is a further fact in the case that is considered by the latter court as material or unless some
fact treated as material is absent. He uses the term “principles of law” in his essay called
“Determining the Ratio Decidendi Case”. He discusses six points on how to find out Ratio:
a. The principle of a case is not found out in the reasoning given in the opinion. The reason given
by the judge for his decision never constitutes as the binding part of the judgment.
b. The principle is not found in the rule of law set forth in the opinion. For it is not the rule of law
set forth by the court or the rule enunciated as Halsbury puts it which necessary constitutes as
principles of the case. There may be no rule of law set forth in the opinion or the rule of law
stated may be too wide or too narrow. In the appellate courts, the rules of law set forth by the
different judges may have no relation to each other, nevertheless, each of these cases contain a
principle which can be discovered on proper analysis.
c. Judges Opinion need not be consulted in order to find the principle of law for which the case is
an authority. The realist perception of the society held that it is not the judge’s opinion but the
way they decide cases which should be dominant subject matter of truly scientific study of law.
d. The principle of case is found by taking into account:
i. The facts treated of the case by the judge as material
ii. His decision based on them.
iii. It follows that our task in analysing a case is not to state the facts and the conclusion but
to state the material facts as seen by the judge and his conclusion based on them. It is by his
choice of the material facts the judge creates the law.
e. First is to find out all the necessary facts as seen by the judge. Secondly, to discover which of
those facts were treated by the judge as material?
f. The judge never expresses his view about what facts are considered by him as material and
what facts are immaterial. We should apply various tests to determine which is material and
immaterial.
g. The conclusion based on hypothetical facts is dictum. A Ratio Decidendi cannot be based on
assumed fact. Rupert Cross says that in cases even dictum should be considered in finding out
the ratio.
ADVANTAGES AND DISADVANTAGES OF
PRECEDENTS
ADVANTAGES
* There is certainty in the law. By looking at existing precedents it is possible to forecast what a
decision will be and a person can plan accordingly.

* There is uniformity in the law. Similar cases will be treated in the same way. This is important
to give the system a sense of justice and to make the system acceptable to the public.

* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables
the system to change and to adapt to new situations.

* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

* Judicial precedent is detailed. There is a wealth of cases to which to refer.

DISADVANTAGES:

* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number
of reasons.

* There may be a considerable waiting period for a case to come to court for a point to be
decided.

* Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.

* There is far too much case law and it is too complex.

EXCEPTIONS TO BINDING PRECEDENT
If two judges Bench finds a judgement of a three judges Bench to be so incorrect that it can not
be followed in any circumstances , keeping view of judicial discipline and propriety, the proper
course is to refer the matter before it to another Bench of three judges. Pradip Chandra Parija v/s
Pramod Chandra Patnaik AIR 2002 SC 296 ;(2002) 1 SCC 1 .

It is impermissible for a High Court to over rule the decision of the Apex Court on the ground
that the Supreme Court laid down legal position without considering any other point . High Court
can not question the correctness of the decision of the Supreme Court even though the point
sought before the High Court. Suganthi Suresh Kumar v/s Jagdeeshan (2002) 2 SCC 420.

When a court differs from the decision of a co-ordinate bench of a Single Judge of High Court,
the decision should be referred to Larger Bench. Ayyaswami Gounder and others v.
Munnuswamy Gounder and others, AIR 1984 SC 1789: 1984(4) SCC 376.

If a division bench of a High Court differs from the view expressed by another division bench of
the same court, it is appropriate that the matter is referred to a larger bench.Rajesh Kumar Verma
v. State of Madhya Pradesh and others, AIR 1995 SC 1421: 1995(2) SCC 129; Sundarjas
Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others, AIR 1991 SC
1893; 1989(3) SCC 396. Union of India and others v. Godfrey Philips India Ltd., AIR 1986 SC
806; 1985(4) SCC 369.

Division Bench of Supreme Court consisting of two Judges cannot over rule the decision of a
Bench of two Judges as it would be an inappropriate.

Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231; 1985(1) SCC
275.

When there is a conflict of opinion that is when there is disagreement by one single judge with
the decision of another single Judge it is appropriate that the appropriate course is to refer the
matter to a larger bench for an authoritative decision. Shridhar son of Ram Dular v. Nagar
Palika, Jaunpur and others, AIR 1990 SC 307; 1990 Supp. SCC 157.

One Full Bench decision cannot over rule another Full Bench Decision delivered by Judges of
equal strength.

Shyamaraju Hegde v. U. Venkatesha Bhat and others, AIR 1987 SC 2323: 1987 Supp. SCC 321.
CIRCUMSTANCES DESTROYING OR WEAKENING THE BINDING
FORCE OF PRECEDENTS.

1. ABROGATED DECISIONS: A decision ceases to be binding if a statute or statutory rule is

inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court.

2. IGNORANCE OF STATUTE: A precedent is not binding if it was rendered in ignorance of

a statute or rule having the force of statute i.e. delegated legislation. Such decisions are per
incuriam and not binding . The mere fact that the earlier court misconstrued a statute or ignored a
rule of construction is no ground for impugning the authority of precedent. It is clear law that a
precedent loses its binding force if the court that decided it overlooked an inconsistent decision
of a higher court . Such decisions are also per incuriam. A court is not bound by its own decision
that is in conflict with one another. If the new decision is in conflict with the old, it is given per
incuriam and is not binding on later courts. In this circumstances the rule is that where there are
previous inconsistent decisions of its own , the court is free to follow either i.e. earlier or later.

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.

3 SUB SILENTIO: Precedents sub silentio or not argued: A decision passes sub silentio when
the particular point of law involved in decision is not perceived by the court or present to its
mind. When a decision is on point A upon which judgement is pronounced but there was another
point B on which also court ought to have pronounced before deciding he issue in favour of the
party, but that was not argued or considered by the Court. In such circumstances although point
B was logically involved in the facts and although the case had a specific out come , the point B
is said to pass sub silentio.[ Gerard v/s Worth of Pipers Ltd (1936) 2 All. E R 905(A) ] . It is
rightly said that an hundred precedent sub silentio are not material. Where a judgement is given
without the losing parties having been represented , there is no assurance that all the relevant
consideration have been brought to the notice of the court and consequently the decision ought
not be regarded as absolute authority even if it does not fall within sub silentio rule. A precedent
is not destroyed merely because it was badly argued , inadequately considered and fallaciously
reasoned. Total absence of argument vitiates the precedent. A decision is an authority only for
what it actually decides and not for what may logically or remotely follows from it. Decision on
a question which has not been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v.
State of Haryana and another, AIR 1990 SC 781: 1990(2) SCC 71: 1989 Supp. (1) SCR 510:
1989(2) Scale 982
 When observation of the court on a question about validity of a statutory provision which was
neither raised nor argued would not be a binding precedent.

Rajpur Ruda Meha and others v. State of Gujarat, AIR 1980 SC 1707: 1980(1) SCC 677.

5. DISTINGUISHING: A binding precedent is a decided case which a court must follow. But a
previous case is only binding in a later case if the legal principles involved is the same and the
facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges usually in order to avoid the consequences of an earlier inconvenient decision
which is, in strict practice, binding on them.

If a Court deems fit to follow a precedent of a superior court the proper course , in such a case,
is to try to find out and follow the opinions expressed by larger benches of SuperiorCourt in the
manner in which it had done this. The proper course for a Court , is to try to find out and follow
the opinions expressed by larger benches of superior Court in preference to those expressed by
smaller benches of the Court. If, however, the Court was of opinion that the views expressed by
larger benches of this Court were not applicable to the facts of the instant case it should say so
giving reasons supporting its point of view.

Union of India and another v. K.S. Subramanian, AIR 1976 SC 2433;1976(3) SCC 677. Even
Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds itself
unable to accept the earlier view, it shall be justified in deciding the matter in a different way.
Income Tax Officer, Tuticorin v. T.S. Devinatha Nadar etc., AIR 1968 SC 623.

6. OVERRULING: A higher court can overrule a decision made in an earlier case by a lower
court eg. the Court of Appeal can overrule an earlier High Court decision. 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.

The overruling is retrospectively except as regards matters that are res judicata or accounts that
have been settled in the meantime.

The Apex Court or any superior court cannot allow itself to be tied down by and become captive
of a view which in the light of the subsequent experience has been found to be patently
erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public
inconvenience. The Court has to keep the balance between the need of certainty and continuity
and the desirability of growth and development of law. It can neither by judicial pronouncements
allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep
away established principles. On the one hand the need is to ensure that judicial inventiveness
shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down
new and novel principles in substitution of well established principles in the ordinary run of
cases and the readiness to canonise the new principles too quickly before their saintliness has
been affirmed by the passage of time. It may perhaps be laid down as a broad proposition that a
view which has been accepted for a long period of time should not be disturbed unless the Court
can say positively that it was wrong or unreasonable or that it is productive of public hardship or
inconvenience.

Manganlal Chhagganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, AIR 1974 SC 2009;
1974(2) SCC 402.

Decision of Full Bench of High Court passed after considering the local conditions and history
should not be easily disturbed.

Nityananda Kar and another, etc. etc. v. State of Orissa and others, AIR 1991 SC 1134; 1991
Supp (2) SCC 516 .

7. REVERSING:.Reversing is the overturning on appeal by a higher court, of the decision of the

court below that hearing the appeal. The appeal court will then substitute its own decision.

8. CONCESSION:Concession made by counsel on a question of law is not binding as

precedent.

The Government of Tamil Nadu and others v. Badrinath and others, AIR 1987 SC 2381:
1987(4) SCC 654; State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC 357.

9. CONSENT: When a direction or order is made by consent of the parties, the Court does not
adjudicate upon the rights of the parties nor lay down any principle.

Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38: 1989(1) SCC 101; 1989
Supp. (2) SCR 929.

10. NON SPEAKING ORDER: Non speaking order dismissing special leave petition would not
constitute binding precedent as to the ratio of the High Court involved in the decision against
which special leave petition to appeal was filed. Ajit Kumar Rath v/s State of Orissa (1999) 9
SCC 596.

11.SPECIFIC EXCLUSION:A judgment stating therein itself that the ratio laid down there in
shall not be binding precedent or shall not be followed or relied upon , can not be treated as
binding precedent. Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437.
12 .ON FACTS: If a judgment is rendered merely having regard to the fact situations obtaiing
therein , the same could not be declaration of law within meaning of Article 141.UP State
Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586 ;(2006)1 SCC 479;.

There is nothing in the Constitution which prevent the Supreme Court from the reversing its
previous decision. State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997: 1967(2)
SCR 170.

An earlier decision cannot be departed unless there are extra-ordinary or special reasons for
doing so.

Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur,AIR
1976 SC 410;: 1996(4) SCC 124.

Non-consideration for foreign decisions. The decision of Constitution Bench which held the
field a quarter of century without challenge. Reconsideration on account of non-consideration of
an American decision, not cited before the bench, is not called for.

Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi, AIR 1986 SC 293: 1986(1) SCC
445: ;India Electric Works Ltd. v. James Mantosh and another, AIR 1971 SC 2313; 1971(1) SCC
24.

Thus , one of the tools of an Advocate to persuade a Court on the point canvassed before it, that
is to cite a binding precedent, is not always without limitations and it has to be an endevour of
every advocate to perform an exercise to find out the ratio decidendi of a judgement and its
relevancy to the proposition put before the court in the context of the facts of the case, before the
same is quoted.
Bibliography
BOOKS

Avtar Singh : Introduction to Jurisprudence,3rd Edition

NK Jayakumar: Lectures In Jurisprudence,2nd Edition

H.L.A. Hart, The Concept of Law

WEBSITES

http://en.wikipedia.org/wiki/Sources_of_law

http://www.slideshare.net/robinkapoor/chapter-01-sources-of-law-presentation

http://www.preservearticles.com/201104265957/6-most-essential-sources-of-law-
in-india.html

http://www.thenewsmanual.net/Manuals%20Volume%203/volume3_63.htm