ANNEXURE – A

TITLE
JUDICIAL PRECEDENT AS A SOURCES OF
LAW

SUBMITTED BY
KSHITIJ KATIYAR
ROLL NO. 40 CLASS B.COM.LLB. (HONS)
SEMESTER: 3
OF
FACULTY OF LAW
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVESITY
IN
OCTOBER, 2019

UNDER THE GUIDENCE OF

DR.SHEPHALI YADAV
DEAN AND HOD
OF
LAW FACULTY
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVESITY

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 ANNEXURE – B

1.ANNEXURE A

2.ACKNOWLEDGEMENT

3.INDEX

4.CONTENT

5.BIBLIOGRAPHY

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 ACKNOWLEDGEMENT

I would like to express my special thanks and gratitude to my teacher

DR. SHEPHALI YADAV who gave the golden opportunity to do
this wonderful project on the topic JUDICIAL PRECEDENT AS A
SOURCES OF LAW, which also helped me in doing lots of research
about the topic due to which, I came across various new aspects about
the topic. I am very much thankful to her.
Secondly I want to thank my parents and my friends who supported
me a lot and helped me in completing this assignment within limited
time frame.

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 INDEX
SR. NUMBER PARTICULSRS PAGE
NUMBER

1 JUDICIAL PRECEDENT AS A 5-6

SOURCES OF LAW

2 TYPES OF JUDICIAL 7-8

PRECEDENT

3 DO JUDGE MAKE LAW 8

4 THEORIES OF PRECEDENT 8-9

5 PARTS OF JUDICIAL 9-10

PRECEDENT
[RATIO DECIDENDI & OBITER
DICTA]
6 DOCTRINE OF STARE DECISIS 10

7 MERITS AND DMERITS OF 11

JUDICIAL PRECEDENT

8 CONCLUSION 11-12

9 BIBLIOGRAPHY 13

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 Judicial Precedent as a source of law
Definition of precedent
In general English, the term precedent means, ‘a previous instance or case
which is, or may be taken as an example of rule for subsequent cases, or by
which some similar act or circumstances may be supported or justified.’
According to Gray, ‘precedent covers everything said or done, which furnishes
a rule for subsequent practice.’
According to Keeton, ‘a judicial precedent is judicial to which authority has in
some measure been attached.’
According to Salmond, ‘in a loose sense, it includes merely reported case law
which may be cited & followed by courts.’
In a strict sense, that case law which not only has a great binding authority but
must also be followed.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’

In simple words, judicial precedent refers to previously decided judgments of

the superior courts, such as the High Courts and the Supreme Court, which
judges are bound to follow. This binding character of the previously decided
cases is important, considering the hierarchy of the courts established by the
legal systems of a particular country. In the case of India, this hierarchy has
been established by the Constitution of India.
Judicial precedent is based on doctrine of staire decisis which refers to the rule
that judgement of higher court will be binding on lower court levels.
Judicial precedent is an important source of law, but it is neither as modern as
legislation nor is it as old as custom. It is an important feature of the English
legal system as well as of other common law countries which follow the English
legal system. In most of the developed legal systems, judiciary is considered to
be an important organ of the State.

Essential of judicial precedent as source of law:

 Hierarchy of courts

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  Precedents must have opinion-juris{action carried out as a legal
obligation}
 Reporting of precedent
Ex of hierarchy of courts:-

Supreme Court

High Court

District Court and Additional District Judges

Subordinate Judge Class I

Subordinate Judge Class II

Court of Small Causes Munsiff's Court or Court

for metropolitan cities of sub Judge III class

Supreme Court (SC) became the supreme judicial authority and a streamlined
system of courts was established.
1) Supreme Court:

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 Binding on all courts in India Not bound by its own decisions, or
decisions of PC or Federal Court - AIR 1991 SC 2176

2) High Courts:
 Binding on all courts within its own jurisdiction.
 Only persuasive value for courts outside its own jurisdiction.
 In case of conflict with decision of same court and bench of equal
strength, referred to a higher bench.
 Decisions of PC and federal court are binding as long as they do not
conflict with decisions of SC.

3) Lower Courts:
Bound to follow decisions of higher courts in its own state, in preference to
High Courts of other states.

Types of judicial precedents

Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal
writing that is related to the case at hand but is not a binding precedent on the
court under common law legal systems such as English law. However, a
persuasive authority may guide the judge in making the decision in the instant
case. Persuasive precedent may come from a number of sources such as lower
courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or
law reviews. In Civil law and pluralist systems, as under Scots law, precedent is
not binding but case law is taken into account by the courts.
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.
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.
Horizontal Courts
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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.

Binding precedents or Authoritative precedents

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, as
under Scots law, precedent is not binding but case law is taken into account by
the courts.
Binding precedent relies on the legal principle of stare decisis. A stare decisis
means to stand by things decided. It ensures certainty and consistency in the
application of the law. Existing binding precedents from past cases are applied
in principle to new situations by analogy.

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
DO JUDGE MAKE LAW?
The Indian Constitution confers power on the legislature to make law, while the
judiciary has the power to examine the constitutionality of the law enacted by
the legislature. The courts also adjudicate upon the rights and duties of citizens,
and further interpret the provisions of the Constitution and other statutes.
There were two theories about the above question that do judge make
law?
Theories of judicial precedents
 Declaratory theory
This theory provides that, Judges only discover law. They discover and declare.

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Coke C.J.: judicial decisions are not a source of law but the best proof of law is.
Theory given by BLACKSTONE, CARTER etc. which tells that judges only
declares the law.

CASE LAW:-
Lord Esher in the famous WILLIS V. BADDELEY case observed , “there is in
fact no such thing as judge –made law, for the Judges do not make the law,
though they may frequently have to apply existing law as to circumstances as to
which it has not previously been laid down that such law is applicable”.
This theory was criticised on a number of grounds
α Bentham and Austin: legislative power is not with Courts and they cannot
even claim it.
α Salmond: both at law and in equity, however the declaratory theory must
be totally rejected.

 Realist Theory:
Theory given by DICES, SALMOND etc. which tells that judges make
law. Lord Bacon: the points which the judges decide in cases of first
impression is a “distinct contribution to the existing law”.
Prof. Gray: Judges alone are the makers of Law.
Pollock: Courts themselves, in the course of the reasons given for those
decisions constantly and freely use language admitting that they do.
Example:- concept of absolute liability evolved in case of RYLAND V.
FLETCHER
Appointments of judges in present time is also result of judicial precedent
{judge made law}
This theory was criticised on a number of grounds
α Judges cannot overrule a statute.
α Where a statute clearly laid down the law, the judge has to enforce it.
α The judge is confined to the facts of the case while enunciating legal
principles. Within those limits alone it can be said that judges make law.

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Judicial decisions can be divided into following two parts:
 Ratio decidendi (Reason of Decision):
The principle that comes out as a result of such case is not applicable only to
that case, but to cases also which are similar to the decided case in their
essential features. This principle is called Ratio Decidendi. 'Ratio decidendi'
refers to the binding part of a judgment. 'Ratio decidendi' literally means
reasons for the decision. It is considered as the general principle which is
deduced by the courts from the facts of a particular case. It becomes generally
binding on the lower courts in future cases involving similar questions of law.
 Obiter dicta (Said by the way):
The issues which need the determination of no general principles are answered
on the circumstances of the particular case and lay down no principles of
general application. These are called Obiter Dictum. An 'obiter dictum' refers to
parts of judicial decisions which are general observations of the judge and do
not have any binding authority. However, obiter of a higher judiciary is given
due consideration by lower courts and has persuasive value.
DIFFERENCE:-
                     Ratio decidendi                 Obiter dictum   

1.      Salmon defines: “the ratio decidendi may

be described roughly as the rule of law applied 1.      An obiter dictum is an announcement
by and acted on by the court, or the rule which made by a judge in course of his judgment
the court regarded as governing the case. which may not be unequivocally applicable
to the issue before him.
2.      Obiter dictum has no such binding
2.      Ratio decidendi is more authoritative than authority.
obiter dictum.

Doctrine of Stare Decisis:

Stare decisis is the legal principle by which judges are obliged to respect the
precedents established by prior decisions. Judicial precedent is based on
doctrine of staire decisis which refers to the rule that judgement of higher court
will be binding on lower court levels.

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 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 precedents and not disturb settled matters.
This doctrine is basically a requirement that a Court must follow the rules
established by a Court above it.

The doctrine that holdings have binding precedence value is not valid within
most civil law jurisdictions as it is generally understood that this principle
interferes with the right of judges to interpret law and the right of the legislature
to make law. Most such systems, however, recognize the concept of
jurisprudence constante, which argues that even though judges are independent,
they should judge in a predictable and non-chaotic manner.

Merits of the Doctrine of Precedents

It shows respect to one ancestors’ opinion. Eminent jurists like Coke and
Blackstone have supported the doctrine on this ground. The say that there are
always some reasons behind these opinions, we may or may not understand
them.
Precedents are based on customs, and therefore, they should be followed. Courts
follow them because these judicial decisions are the principal and most
authoritative evidence that can be given of the existence of such a custom as
shall form a part of the common law.
Precedents bring certainty in the law. If the courts do not follow precedents and
the judges start deciding and determining issues every time afresh without
having regard to the previous decisions on the point, the law would become the
most uncertain.
Precedents are Judge made law. Therefore, they are more practical. They are
based on cases. It is not like statue law which is based on a priori theory. The
law develops through precedents according to actual cases.
Demerits of the Doctrine of Precedents
Sometimes, the conflicting decisions of superior tribunal throw the judge of a
lower court on the horns of a dilemma. The courts faced with what an English
judge called “complete fog of authorities.”

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A great demerit of the doctrine of precedent is that the development of the law
depends on the incidents of litigation. Sometimes, the most important points
may remain unadjudicated because nobody brought an action upon them.
A very grave demerit or rather an anomaly of the doctrine of precedent is that
sometimes it is the extremely erroneous decision is established as law due to not
being brought before a superior court.

CONCLUSION {PRESENT SITUATION OF JUDICIAL

PRECEDENT IN INDIA}:
 First of all it complimentary counter part of legislation and statutes as it
provides it certainty and concreteness to written law.
 Its helps to made judgement of any case similar to previous case or case
having similar situation.
 It provides flexibility to the written law and mould it according to
situation of a particular case and provide free hand to the judge to
interpret law according to situation and circumstances present
 New law are being evolved with the help of this doctrine for which no
statutes and legislation are formed.
 Both legislation and precedent are equally important but in my point of
view in some cases precedent is superior source of law as it arise from
practical problems, hence the law made for such problem is also practical
and efficient.

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 BIBLIOGRAPHY

BOOKS:
JURISPUDENCE BY N V PRANJAPAYE
JURISPRUDENCE BY R.M.W. DIAS

WEBSITES:
WWW.UNACDEMY.COM
WWW.LEGALSEVICEINDIA.COM
WWW.CBSELEGALSTUDIES.COM

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