precedent
source: https://www.thepublicdiscourse.com/2017/03/18762/

Introduction

The term law is a very vast word for its own scope. In today’s world where development is raging at its maximum heights, with the introduction of new technology, changing economical standards, summing up the gap between the haves and the have nots, the exponential increase in the standard of living, a movement towards a progressive economy and the citizens being at power an efficient legal system is necessary for the ordinary functions of life, for the existence and growth of mankind. Here comes the point proving how it is essential for all beings to know the law of the land and to steer clear of the unethical way of life.

The term law has many definitions of its own. In layman’s language law means, the system of rules which a particular country or any state recognizes as certain norms regulating the actions of its citizens and which it may enforce by imposing penalties. The eminent jurist Salmond describes the law as “Law may be defined as the body of principles recognized and applied by the state in the administration of justice”.[1]

It is very important to understand that the law of every land is derived from various sources. So, if one has to understand the depth, the sources of law will come handy. India derives its laws from different sources which are stated below-

Customs

Customs can be defined as the cultural practices or ideas that establish a mode of behavior for a sect or a community. It is one of the oldest and main sources of law in India. A custom has to be followed from antiquity, should be consistent and continuous in nature, must be reasonable, certain, and have reasonable enjoyment.

Legislation

The legislation is defined as laws and rules made by the government. These are the set rules and norms made by the government or any other body authorized according to which the citizens are to be governed. A few examples of Indian legislations are Indian Penal Code 1860, The Code of Criminal Procedure 1973, The Indian Contract Act 1872, etc.

Judicial Precedent

Judicial precedent refers to a source of law where past decisions of the judges create law or guiding principles for the future judges and the decisions to be made. In Judicial precedent, the decision is taken by keeping a similar case as a reference that had already been pre-decided in the past, such cases are of the same nature.

The judges to some extent can depend on their sensibility of right and wrong in all matters of interpretation and can use prudence in filling up the lacuna of the legislations laid forth. In simple means, a judicial precedent of India is a judgment laid down by a court of law in India which is cited as an authority to decide when given by a court superior in the hierarchy, a similar set of facts and which can be used by the subordinate courts as a source for future decision making.

Historical aspects of the judicial precedents in India

The Indian society in the past used to be a tranquil and peace-loving one with fewer disputes and even lesser occasions to approach the court for when the need arises. There were no central courts but smaller courts existed which were namely shashan, kula, shreni, and puga. These courts were the local courts and had certain defined proximity under their jurisdiction. The area they administered and provided orders to were predefined without a hint of ambiguity. They only decided on the cases that used to fall in their jurisdiction.

There was little to no possibility of development of the doctrine of judicial precedent due to the following reasons:

  • Firstly, there were not many disputes arising at that time.
  • Secondly, there was a lack of adequate sources to keep records
  • And finally, there was no efficient legal system that prevailed.

In the absence of a well prescribed and working legal system, the doctrine of judicial precedents did not develop well in India initially like it did in England.

Under the British rule, India flourished and it bought about a backbone for our legal system with the two acts. These were: The Government of India Act 1919 and The Government of India Act 1935 which laid down the parliamentary form of government structure for India, gave the different organs of the government, introduced bicameral legislation system and gave the judiciary an independent existence that gave way to the hierarchical establishments of courts and perhaps the rise of the doctrine of judicial precedent.

The objective of Judicial Precedent

The main objective of the Doctrine of judicial precedent is to fill up the lacuna and the loopholes of the legislations made. The legislations are the laws made by the government for the people to follow. It can be enforced by imposing penalties. The legislations so made are uniform and get rigid as they get do not provide justice to the various types of cases. The doctrine makes the law clear, certain and uniformity showed in the decision-making process.

The judicial precedents are the decisions made by the superior courts in the hierarchy. They are to be used as authoritative judgments, followed through by the subordinate courts. This is done so that the courts can follow them without any hesitation. In the case of Union of India v. Raghubir Singh (AIR 1989 SC 1933), it was held that “The doctrine of binding precedents has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides provided the assurance to the individual as to the consequences of transaction forming part of daily affairs. And therefore the need for a clear and consistent enunciation of the legal principle of decision of the court.”[2]

Position under the Indian Constitution

The law of the land i.e. The Constitution of India in Article 141 provides, “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” The ambiguity arises due to the term. All courts and whether the Supreme Court of India comes in its ambit or not. The answer to this is that the judiciary is independent and o in the most superior court of our country. The Supreme court is not bound to follow and apply its own decisions. They can deviate from them when the situation deems fit. This reduces possible rigidity and injustice in the system. This point was further cleared by the decision laid down by the Supreme court. In the case of Keshvananda Bharti v. the State of Kerala, the Supreme court itself overruled its previous decisions.

The judgments that prove to not be binding are the-

  • Those judgments that are not correctly expressed.
  • The judgment not founded on reasons and gives way to uncertainty.
  • The observations made by the courts, in any case, do not form a part of the judgment. Hence, they are not binding.
  • The Obiter dicta of any case are not binding because it has a persuasive value only.
  • All those judgments where the point of law is not specifically taken care of.

General principles and the hierarchy of courts

The judicial precedents are the decisions made by the superior courts in the hierarchy. They are to be used as authoritative judgments, followed through by the subordinate courts. The High courts in India are bound to follow the decisions given by the Supreme court. The decisions of the Supreme court will be binding. It remains binding until the time they have not been overruled by another decision of the Supreme court. The decision of the Supreme court is not binding on itself.

The judgments given by the High courts are binding on all the other subordinate courts in the hierarchy. The judgments of two different High courts have a persuasive influence on each other. Hence, a judgment given by one High court is not binding on the other. They are the courts of coordinate jurisdiction. In the High courts, the appeals are heard by a single judge. Only in some cases, it is heard by a bench of two or more judges. When there are some important and technical points the case then is referred to a larger bench. The decisions and judgments given by a larger bench are binding on all the smaller benches. Whereas, the judgments given by the benches having the same number of judges are considered as persuasive. Such judgments do not bind them

Case laws regarding judicial precedents

  • Union of India Vs. Raghubir Singh (AIR 1989 SC 1933)

In this case, it has been held that “The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.”

  • Commissioner of Income Tax Vs. M/s Sun Engineering Works Private Limited (AIR 1993, SC 43)

The Hon’ble Apex Court held that “While applying the decision to latter cases, the court must carefully try to ascertain the true principle laid down by the decision of Supreme Court and not to pick out words or sentences from the judgments divorced from the context of the question under consideration by the court to support their reasoning.” Any interim order passed even by Supreme Court is limited to that particular case. It should not be used as a precedent for other cases. Specifically when the Supreme Court itself has earlier authoritatively decided the question which is squarely involved in the latter case.

  • Megh Singh Vs. State of Punjab (AIR 2003 SC 3184)

The Hon’ble Apex Court has held that “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect.”

  • Suganthi Suresh Kumar Vs. Jagdeeshan (2002)2 SCC 420

In this case, the Supreme Court observed that “It is impermissible for a High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point. High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court.”[3]

Conclusion

All the sources of the law have an importance of their own be it the customs, legislations, or the precedents. Judicial precedents help in filling the gap between law and life. The lawmaker makes laws keeping in mind the problems for which the law is to be made. Such laws need to be framed keeping in mind the prevalent situation at the time of making the law.

The problem arises after the law has been made and put out in society for execution. The society is never stagnant, the ways of living are dynamic, evolving, and ever-changing. The human behavioural conduct has been enhancing and involves the keepers to be dynamic too. As the legislations so made become too rigid for the ongoing situations here the precedents come to rescue. The judges use their diligence and prudence to satiate the right and the wrong. Thereby, they provide justice to the deserving.

The precedents fill-up the lacunas left in the law-making by the government. It gives a take to the judges to correct wisely. The value of the doctrine of precedent comes as it brings about certainty to all the courts of justice. Thereby, making the judgments less uncanny and ambiguous. Still, the judges have to keep in mind the purpose of the lawmakers. They need to keep up the balance between certainty and rigidity to accelerate the continuous process of advancement.


Author: Saher Ronaq


References

[1] Suyash Verma, Jurisprudence – The nature of law, 2012

[2] Chandan Kumar,  Union of India v. Raghubir Singh (AIR 1989 SC 1933) , Spot Law, (April 04, 2020, 11:47 A.M), http://spotlawapp.com/webn/judgementviewe.php?jNo=9100119890516002

[3] Kiranpreet Kaur, Judicial precedents in India, mondaq, (April 04, 2020, 11:52 A.M), https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-precedents-in-india

1 COMMENT

LEAVE A REPLY

Please enter your comment!
Please enter your name here