Lecture 4
Sources o f Law II: Precedent
Me an ingo f Pr e c e d e n t
Precedent means judgment or decision o f a court o f law cited as an authority for the legal principle embodied in it. The doctrine o f precedent, which is also known as the doctrine o f stare decisi$> ie, stand by the decision, is based on the principle that like cases should be decided alike. O nce a case is decided by a judge by applying a principle, a case on similar facts which may arise in future must also be decided by applying the same principle.
This not only saves the time and labour o f judges, but also secures certainty, predictability, and uniformity in the application o f law.
The English legal system has always attached great importance to judicial precedent. The vast body o f Com m on Law is almost entirely the product o f decided cases. C ontinental system, on the other hand, considers precedent only as evidence o f law, and not a source o f law. Precedents are instruments for the persuasion o f judges. English law considers precedents not merely as evidence o f the law, but as source o f law, and accepts the authority o f precedents. It is an assumption o f English law that every decision shall be accepted as precedent and follow ed not on ly b y all subordinate courts, but also by courts o f co-ordinate jurisdictions. This approach has influenced all legal systems, including India, which follow the C om m on Law tradition. It must be added that even in continental legal systems such as France, Italy and Germany, the importance o f the reported decisions has been increasing, and the courts o f these countries now tend to attach greater weight to their own previous decisions. However, the respect shown to judicial precedents depends on their excellence or merit.
Lectures in Jurisprudence Th e Do c t r in eo f Stare De cisis
Historically, the doctrine o f precedent began by asserting the doctrine o f stare decisis. This means ‘to stand by precedent and not to disturb the settled point o f law’ . In other words, judicial decisions have a binding force, and enjoy status o f law per se. The doctrine o f stare decisis postulates two conditions to be satisfied, viz, (i) there must be a settled judicial hierarchy, for otherwise it will not be known whose decisions are binding on whom; (ii) there must also be reliable reports o f cases. I f cases are to be authoritative as law, there should be precise records o f what they lay down.
The simple reason behind the doctrine o f stare decisis was that once the community accepts a precedent as authoritative law and rests its expectations on it, overturning it would cause grave inconveniences to the community, and might disappoint and disturb their legitimate expectations in various affairs. Therefore, it is considered better in the interest o f certainty and consistency to stand by the decision.
This view is further strengthened by the maxim communis error fa cit jus, ie, common mistakes make law. Judicial declaration o f law by a competent court is always respected by the society as being authentic, authoritative and valid, even if the decision o f the court is founded on faulty and erroneous premises. A subsequent annulment o f the decision will certainly disturb and disappoint the legitimate expectations o f the people, by unsettling the settled issues, resulting in a chaotic condition in the society. So, it is considered wise, in the interest o f certainty, consistency and stability to stand by the earlier decision. As Blackstone observes, ‘It is an established rule to abide by former precedents, where the same point comes again in litigation as well as to keep the scale o f justice even and steady and not liable to waiver with every new judges opinion.’ Therefore, it is considered proper to stand by the earlier decisions in the interest o f stability o f the legal system.
Julius Stone,1 has identified the rationale o f the doctrine as ‘resting on maximising fairness and efficiency in adjudication or as fulfilling expectations o f litigants or as a basis o f confidence in the judiciary’ . He says that the essence o f stare decisis is that where there is no sufficient reason for departing from principle laid down in a prior decision, judges should not depart from them. In other words, there should be sufficient reasons for departing from prior decisions.
Professor A Lakshminath,2 discusses the sociology o f stare decisis, saying that while identifying stare decisis as a judicial attitude, a judge is required
1 Precedent and Law: Dynamics o f Common Law Growth, 1985- 2 Precedent in The Indian Legal System, second edn, 2005.
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Sources o f L aw II: Precedent
to consult accumulated wisdom. Stare decisis is both a social and legal norm.
It is an unwritten social rule which contains clusters o f rules and values on shared understanding among groups. It also embodies a complexity o f unwritten or half-written legal rules o f practice having distinct consequences.
He holds that the social justification o f stare decisis is in its promise o f certainty and stability. Besides, the doctrine fosters fairness in adjudication, promotes efficiency, disciplines the court, excludes arbitrariness, and legitimises judicial power. T h e doctrin e helps to generate judicial accountability.
In Professor Hart’s analysis, the stare decisis doctrine represents the secondary rule or power conferring rule or a rule o f recognition.
Sir William Holdsworth’s general thesis was that the English doctrine o f precedent ‘hits the golden mean between too much flexibility and too much rigidity; for it gives to the legal system the rigidity which it must have if it is to possess a definite body o f principles, and the flexibility which it must have if it is to adapt itself to the needs o f a changing society’ . Classificationo f Pr ec ed en t s
Original and Declaratory Precedents
The judicial decisions are o f two types, namely those which create a new law, and those which apply known and settled principles o f law to the particular facts o f a case. Both these types o f decisions are treated as precedents. It is because the legal principles em bodied therein are authoritative guides to courts for the determination o f future controversies.
Decisions which create a new law are called original precedents, while those which apply known and settled principles o f law to the particular facts o f a case are called declaratory precedents. A declaratory precedent is not a source o f new law, whereas an original precedent is.
There are several declaratory precedents, for the law on most o f the points is already settled, and judicial decisions are mere declarations o f pre-existing rules. O n the other hand, original precedents, though fewer in number, are greater in importance, as they alone develop the law.
This distinction between original and declaratory precedents is based on two diametrically opposite theories o f precedent. One theory supported by jurists like Austin and Friedmann concede the law-making role o f the judge. In their view, some precedents may be original because they lay down original or new principles o f law. Jurists like Blackstone do not agree with this, and consider precedents as declaratory only, ie, they merely reiterate recognised principles o f law. The Com m on Law contains a rule for
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every situation, and the judge’s function is only to discover and apply it to the case at hand. This is known as the declaratory theory o f precedent.
Critics o f the theory dismiss this as a childish fiction. English judges like Mansfield, W right, Atkin, and Denning also did not subscribe to the declaratory theory. These judges believed that judges have to develop law in tune with the changing needs o f the society, and the progressive demands o f justice, whenever occasion demands so.
In countries like India, where judges have to interpret the Constitution and determine the validity o f legislative enactments and even constitutional amendments, it is only natural that judges get more opportunities to perform a creative role. The declaratory theory o f precedent is inadequate to provide a jurisprudential basis to such a judicial role.
Authoritative and Persuasive Precedents
Classification o f precedents into authoritative and persuasive is a widely accepted classification. An authoritative precedent is one which the judge is bound to follow irrespective o f whether he approves it. In other words, the judge has no choice. For instance, a decision o f the Supreme Court o f India is binding on a judge o f the Kerala High Court. Similarly, a decision o f the Kerala High Court is binding on lower courts in Kerala. In a system o f precedents, decisions o f superior courts are always considered as authoritative precedents.
Authoritative precedents are further classified into absolute and conditional. An absolutely authoritative precedent is absolutely binding, and must be followed without any question, however, unreasonable or erroneous it may appear to be. It has a legal claim to im plicit and unquestioned acceptance by the cou rt. C on d ition a lly authoritative precedent is one which is normally binding on the judge, but may be disregarded by him in limited circumstances.
A persuasive precedent is one which the judge is under no obligation to follow. Here, he has a choice in deciding whether to follow a precedent. If he is convinced o f the merits o f a decision, he may follow it; otherwise he may refuse. A decision o f the Delhi High Court is only a persuasive precedent as far as the Madras High Court is concerned, and it is under no obligation to follow it. Foreign judgments may also be considered as persuasive.
Persuasive precedents, though not binding, often exert a decisive influence on judicial decisions. The distinction between a persuasive precedent and a conditionally authoritative precedent lies in the fact that the former requires reason to support it, while the latter requires a reason to reject it.
Authoritative precedents are considered to be legal sources o f law, while persuasive precedents are only historical sources.
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Sources o f L aw II: Precedent Ra t io De c id e n d ia n d Ob it e r Dic t a
Our discussion o f precedent has so far carefully avoided the use o f two important words, namely, ratio decidendi, and obiter dicta. W hen we say that a judicial decision is binding as a precedent, what we really mean is that a rule or principle formulated and applied in that decision must be applied when similar facts arise in future. This rule or principle is the ratio decidendi, which is at the centre o f the doctrine o f precedent. The expression ratio decidendi has different meanings. The first meaning, which is the literal translation o f the expression, is ‘the reason for deciding’ . A more satisfactory way o f explaining ratio decidendi is as ‘the rule o f law proffered by the judge as the basis o f his decision. Some people are in favour o f shifting the emphasis and regard ratio decidendi as the rule o f law, which others regard as being o f binding authority. This gives more importance to subsequent interpretations o f the principle than the pronouncement o f the judge who decides the case. Interpretation is treated as a continuous and creative process in which the judge has the freedom and flexibility in interpreting a precedent, expanding, or limiting its application.
Ratio decidendi may best be described as the underlying principle o f a decision, which forms its authoritative element. Explaining what is ratio decidendi is easier compared to explaining how to find out ratio decidendi.
Since different judges follow different styles o f writing judgments and there may be several judgments in the same case, the task o f extracting the ratio o f a decision becomes very complicated indeed. One method suggested by Goodhart involves the identification o f material facts o f a case. One has to look at the decision on material facts in order to reach the ratio o f the decision. The difficulty with this method is that there is no ascertainable yardstick to find out the material facts. What appears to be material fact to one person may appear to be immaterial to another. Another method, which is known as ‘Wambaugh’s test’ , is based on a negative test. First o f all one has to formulate a proposition, which he considers as the ratio.
Then a word is added, which will have the effect o f inversing the meaning o f the proposition. If it is possible to reach the same conclusion with the second proposition also, the original proposition cannot be treated as the ratio. This method considers ratio as the principle or principles without which the court could not have reached the decision that it reached. The success o f this method depends chiefly on the formulation o f the first proposition for which one has to rely on his own intelligence and intuition.
The position that finally emerges is that there is no foolproof method o f finding out the ratio decidendi o f a case. It is always a matter o f judicial creativity and discretion. It is the judicial choice involved in the application
Lectures in Jurisprudence
o f precedent that makes the doctrine o f precedent flexible, and responsive to changes.
Pronouncements o f law in the judgment, which are not part o f the ratio decidendi, are known as obiter dicta. In other words, it is a chance remark, w hich has n o binding force. Although obiter dicta is not considered authoritative and lacks status o f law, it cannot be dismissed as insignificant.
Very often it influences judicial thinking and may, in course o f time, become the ratio. The impact o f obiter dicta depends on the reputation o f the judge, the position o f the court in the hierarchy, and the circumstances in which it came to be pronounced. Examples o f obiter dicta are rules o f law stated merely by way o f analogy or illustration, a suggested rule upon which the decision is not finally based, a ruling based on hypothetical facts, a judicial declaration o f a rule unaccompanied by its application etc.
T he observations o f the highest court, though obiter dicta, have high persuasive effect on lower courts. Obiter dicta may help to rationalise the law, and also serve to suggest solutions to problems not yet decided by the courts.
Th e o r ie so f Pr e c e d e n t
W hen we mention case-law or precedent as judge-made law, the question arises whether the judges have any power or authority to make or change the law. There are two conflicting views on this question. The first is that the judges only declare the existing law and never make the law; but the second asserts that the judges do make or create new law. Let us examine these conflicting theories in some detail.
Declaratory Theory
This theory was propounded by Sir Mathew Hale as early as in 1713 when he said:
.. .the decisions o f courts o f justice... do not make a law properly so called, for that only the King and Parliament can do; yet they have a great weight and authority in expounding, declaring and publishing what the law o f this Kingdom is.3 4
However, it was Blackstone who formally enunciated this theory. According to him:
A judge is sworn to determine, not according to his own judgment, but according to the known laws and customs o f the land, not delegated to pronounce a new law, but to maintain and explain the old on tjus decree et non jus dare.
3 History o f the Common Law, 1820, p 89.
4 Commentaries /, p 88.
Sources o f Law II: Precedent
This means that the judges can only declare the law, and never make or give new law. The staunchest supporters o f this Blackstonian doctrine were the judges themselves. For example, Lord Esher M R said:5
...there is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to w hich it has n ot previously been authoriratively laid down such law is applicable.
This Blackstonian doctrine uncompromisingly asserts that the function o f the judge is ju s decree et non ju s dare, ie, to discover in the existing rules o f law the particular principles that govern the facts o f individual cases. Judges are, therefore, only ‘law-finders’ rather than law-makers.
Criticism o f the Theory
This classical theory o f Blackstone has been subjected to severe criticism by eminent jurists. The great law-reformer Jeremy Bentham said that the statement that judges only declare the law is ‘a willful falsehood having for its object the stealing o f legislative power by and for hands which could not or durst not openly claim it’ . His disciple John Austin also has assailed it as a ‘childish fiction employed by our judges that judiciary or common law is not made by them, but is a miraculous something made by no body, existing, I suppose, from eternity and merely declared from time to time by the judges’ . Several other eminent jurists like Munro Smith and Holmes also consider that this orthodox theory cannot be taken seriously.
Judges as Lawmakers Theory
The second theory o f precedent is that judges make law. Law made by a judge is as real and effective as any statute. A number o f jurists have supported this view. Prominent among them is Prof Dicey who says:
As all lawyers are aware, a large pan and, as many would add, the best p an of the law o f England is judge-made law- that is to say, consists of rules to be collected from the judgments o f the courts. This portion o f the law has not been created by Acts of Parliament and is not recorded in the Statute Book. It is the work of the couns, it is recorded in the reports, and it is, in short, the fruit o f judicial legislation.6
A n American jurist, P rof Gray has, however, taken an extreme view contending that judges alone are makers o f law. He says, ‘Whoever hath an absolute authority ro interpret any written or spoken law, it is he who is
5 Willis v Baddeley \m 2\2 QB 324.
6 Law and Public Opinion in England During The Nineteenth Century, 1914, p 361.
Lectures in Jurisprudence
truly the law-giver to all intents and purposes and not the person who first wrote or spoke them’, and he concludes, lA fortiori whoever hath an absolute authority not only to interpret the law but to say what the law is, is truly the lawgiver.’
Lim itations o f the Theory
Although this theory proclaims that the judges make law, it is to be admitted that they do not enjoy an unrestricted power o f laying down abstract principles o f law. There are certain well-defined limitations on the power o f judicial legislation. For instance:
(i) The judge has no power to ignore or override the provisions o f a statute. He is duty bound to enforce the statutory provisions, leaving to the legislature to deal with any unpleasant consequence not foreseen at the time o f passing o f the Act.
(ii) An authoritative precedent limits the law-making power o f the judge.
(iii) The judicial legislation is restricted to the facts o f the case placed before the judge, which is the outcome o f an accidental course o f litigation.
(iv) Only the ratio decidendi, and not the obiter dicta, has a binding force and authority o f law.
It is, thus, clear that w ithin certain limits judges have the pow er o f profoundly influencing the development o f law. Even if they do not ‘make’
the law in the usual sense o f promulgating at will the rules o f human conduct, it must be acknowledged that they develop the law by contributing several original precedents.
Hie r a r c h yo f Co u r t s
For the operation o f the doctrine o f precedent, a settled hierarchy o f courts is imperative, because the basic rule o f precedent is that a court is bound by the decisions o f all superior courts. In England, the House o f Lords occupies the highest position in the hierarchy. The Court o f Appeal (civil and criminal divisions) com es next. The high court, court o f sessions, magistrate courts are the other courts in the order o f hierarchy. According to the doctrine o f precedent in England, the high court is bound by the decisions o f the Court o f Appeal, and the Court o f Appeal is bound by the decisions o f the House o f Lords. Courts are bound only by decisions o f higher courts, and not bound by those o f lower or equal rank. High court is not strictly bound by its own previous decisions, but it will normally
Sources o f Law II: Precedent
follow previous decisions, on the principle o f judicial comity, in order to avoid conflicts o f authority, and to secure certainty and uniformity in the administration o f justice. T he Court o f Appeal, and possibly divisional courts, still consider themselves bound by their own decisions. This rule is, however, subject to the following exceptions:
(i) I f two earlier decisions are in conflict, the Court o f Appeal may choose between them.
(ii) If a decision although not overruled is inconsistent with a decision o f the House o f Lords or with a decision o f the Judicial Committee o f the Privy Council, the Court o f Appeal is not bound by it.
(iii) I f a decision was given per incuriam, ie, in ignorance o f a statute, or other binding authority, the Court o f Appeal is not bound by it.
The question whether the House o f Lords is bound by its own previous decision was answered in the affirmative by Lord Halsbury in London Tramways v London County Council? This was considered necessary in order to produce finality and certainty in the law. This practice continued until 1966, when a change o f practice was announced by a Practice Statement.
The House o f Lords accepted ‘the use o f precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases’. It was pointed out that precedent ‘provides at least some degree o f certainty upon which individuals can rely in the conduct o f their affairs, as well as a basis for orderly development o f legal rules’ . However, the House o f Lords recognized that ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development o f the law.’ It was, therefore, proposed to modify the existing practice and ‘while treating former decisions o f this House as normally binding, to depart from a previous decision when it appears right to do so’ . It is significant to note that the Practice Statement does not use the word
‘overrule’ , but continuously uses the expression ‘depart from a previous decision’ .
In India, as we know, the Supreme Court is the highest court o f law in civil, criminal, and constitutional matters. There are high courts at the state level, and civil and criminal courts below the high court. Article 141 o f the Constitution states that the law declared by the Supreme Court o f India shall be binding on all courts in India. The question whether the Supreme Court is bound by its own decisions under art 141 was raised in Bengal Immunity C o Ltd v State o f Bihar? In that case it was held that 7 8
7 (1898) AC 375.
8 AIR 1955 SC 661.
Lectures in Jurisprudence
although the words, ‘all courts in India’ appear to be wide enough to include the Supreme Court also, they do not include the Supreme Court. As a result, the Supreme Court is not bound and is free to reconsider its previous decisions in appropriate cases. This position was reiterated in Sajjan Singh v State o f Rajasthan9 wherein it was held that the Constitution does not place any restrictions on the powers o f the Supreme Court to review its earlier decisions or even to depart from them. The court made it clear that the doctrine o f stare decisis should not be permitted to perpetuate erroneous decisions to the detriment o f the general welfare. The court recognised the need for exercising restraint in overruling previous decisions, stating that the power must be exercised only when considerations o f a substantial and compelling character make it necessary to do so.
Summarising the position, the Supreme Court observed in a recent
... stare decisis is not a dogmatic rule, allergic to logic and reasons;
it is a flexible principle o f law operating in the province o f precedents providing room to collaborate with the demands o f changing times dictated by social needs, state policy and judicial conscience.
Where there is a conflict between the two decisions o f the Supreme Court, the decision o f the larger Bench prevails over that o f the smaller Bench.
This principle is true in the case o f high courts also.
Ex c e p t io n st ot h e Do c t r in eo f Stare De cisis
I f there is an excessively rigid application o f the doctrine o f precedent, the courts may not be able to adapt the law to changing situations. O n the other hand, excessive relaxation o f the doctrine will result in confusion and uncertainty. It is, therefore, necessary to retain the doctrine o f precedent, and at the same time, to permit a relaxation o f the doctrine in appropriate cases. A rigid application o f precedent is relaxed by empowering the superior courts to overrule their decisions, and also by recognising certain exceptions to the doctrine o f stare decisis.
The well recognised exceptions to the doctrine o f stare decisis are:
(i) if a decision conflicts with a previous decision o f the same court;
(ii) if a decision has been impliedly overruled by a subsequent decision o f a higher court; 9 10
9 AIR 1965 SC 845.
10 State o f Gujarat v Mirzapur Moti Kureshi Ksasab Jamat (2005) 8 SCC 534, p 589.
Sources o f Law II: Precedent
(iii) if a decision was reached p er incuriam, ie, is a decision which is given in ignorance o f the terms o f a statute or a rule having the force o f a statute;
(jv) if a decision has become obsolete, ie, it is no longer functional or has become out o f date; and
(v) a decision is sub silentio, ie, a decision arrived at without application o f mind or precedent and without any reason.
Ju dic ia l Te c h n iq u e so f Us in ga Pr e c e d e n t
An analysis o f the judicial process reveals several judicial techniques o f using precedents. The most important among such techniques are: (i) refusal to follow a precedent; (ii) distinguishing a precedent; (iii) reversing a precedent; and (iv) overruling a precedent.
Refusal to Follow a Precedent
A judge can refuse to follow a precedent only when it is not binding. In the case o f a persuasive precedent, the judge has the freedom to decide whether to follow the same. Even in cases where there is a refusal to follow, the judge often considers the precedents carefully, and after a process o f reasoning comes to the conclusion that it need not be followed.
Distinguishing a Precedent
Every decision is pronounced on a specific set o f past facts. When similar situations arise in future, a judge has to decide whether the rule formulated in the previous decision should be applied in the present case. In other words, applying precedent is a process o f matching the facts o f the precedent and the ruling thereon with the facts o f the instant case. If they match, the rule is applied. If not, it is distinguished. The decision whether the facts match is to be taken by that judge. Since the decision whether to apply the precedent depends on it, the technique o f distinguishing a case affords great flexibility in the application o f precedents.
Reversing a Precedent
Reversal o f a decision takes place on appeal. The effect o f reversal is normally that the first judgment ceases to have any effect at all. It amounts to a nullification o f the decision as well as the principle which formed the basis o f the decision.
Lectures in Jurisprudence
Overruling a Precedent
Overruling involves disapproval o f the principle laid down in a decision o f the same or a lower court. It never affects the decision in the earlier case, and the parties in the overruled case continue to be bound by the decision under the doctrine o f res judicata. Reversal takes place in an appeal from a decision, whereas overruling takes place in some other case o f similar nature.
Overruling may be express or implied. In express overruling, it is clearly stated that a particular decision is overruled. It is implied when a later decision o f a superior court is inconsistent with that o f the inferior court.
The effect o f overruling is retroactive, except that it does not unsettle matters which are res judicata as between the parties in the overruled decisions, and accounts which have been settled. This is consistent with the theory that judges do not make law, but only declare what always has been the law. It considers an overruled decision as an erroneous declaration o f the law and hence, not law. However, this rule o f retroactivity may create practical difficulties. It is with a view to avoid such practical difficulties that the doctrine o f prospective overruling has been enunciated.
Pr o sp e c t iv e Ov er ru lin g
The doctrine o f prospective overruling was laid down by Cardozo J in Great Northern Railway v Sunburst O il Refining C o.11 It means overruling o f an established precedent with effect limited to future cases, leaving all events, which arose before the date o f such overruling to be governed by the old precedent itself. The justification for this doctrine has been further clarified in Linkletter v W alker}2 It was pointed out that the Constitution does not insist on overruling to be retrospective and, therefore, it is for the court to say, whether on a balance o f all relevant considerations, it should be retrospective or only prospective. In prospective overruling, the court upholds the old law, up till the date o f overruling and lays down a different law to be followed from that date. The court, in effect, is laying down a new law for the future.
T he Supreme Court o f India applied the doctrine o f prospective overruling in Golak Nath v State o f Punjab}1 In two earlier decisions, namely, Sajjan Singh v State o f Rajasthan11 12 13 14 and Shankari Prasad v Union o f Indit,r15
11 287 US 358.
12 381 US 618.
13 AIR 1967 SC 1643.
14 AIR 1965 SC 845.
15 AIR 1951 SC 458.
r
the Supreme Court had held that in exercise o f the power to amend the Constitution under art 3 68, the Parliament was com petent to enact amendments a bridg in g the Fundam ental R ights in Pt III o f the Constitution. Overruling these decisions, the court held that art 368 did not empower the Parliament to abridge Fundamental Rights. I f this principle was applied retrospectively then some amendments to the Constitution which were held valid in Shankari Prasad and Sajjan Singh, would have become invalid. The court wanted to avoid the insurmountable practical problems o f such retrospective invalidation o f constitutional amendments. It, therefore, borrowed the doctrine o f prospective overruling enunciated by the Supreme Court o f USA to hold that all the amendments which have already been made, will continue to remain valid. The limitation on amending power laid down in Golak Nath is applicable only to future amendments.
The doctrine o f prospective overruling which was applied to constitutional am endm ents in G olak N ath was later extended to laws fou n d unconstitutional, and also to the interpretation o f ordinary statutes.
Explaining the scope o f the doctrine, the Supreme Court in Kailash Chand Sharma v State o f Rajasthan 6 observed:
...when the court finds or lays down the correct law in the process o f which the prevalent understanding o f law undergoes a change, the Court, on considerations o f justice and fair deal, restricts the operation o f the new found law to the future so that its impact does not fall on the past transactions. The doctrine recognises the discretion o f the court to prescribe the limits o f retroactivity o f the law declared by it. It is a great harmonising principle equipping the Court with the power to mould the relief to meet the ends o f justice.
It was explained in Managing Director v B Karunakar7 that the doctrine is applied in order to prevent unsettlement o f the settled position, to prevent administrative chaos, and to meet the ends o f justice.
The doctrine o f prospective overruling is a judicial assertion o f the law making role o f the judge. This com es into direct con flict with the Blackstonian doctrine that judges cannot make law. In the context o f judicial activism and judicial legislation emerging as realities, it is no more relevant to turn back to the controversy whether judges can make law. It has to be accepted that overruling obviously changes the law, and thereby upsets ______________Sources o f Law II: Precedent___________________________
16 AIR 2002 SC 2879.
17 (1993) 4 SCC 727.
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expectations based thereon. The decision as to whether such change should be prospective or retrospective in effect assumes great significance. The guiding factors in arriving at a proper decision on chis question must be the considerations o f stability, protection o f reliance on law, efficiency in administration o f justice, equality, and the ideal justice.
La w Re po r t s
Earlier, we have seen that for a system o f precedent to be operational, a settled hierarchy o f courts, and the availability o f law reports are necessary.
In all legal systems which follow the doctrine o f precedent, the judgments o f superior courts are published in a regular and systematic manner. It has been rightly observed that the history o f stare decisis is the history o f law reporting. W hile it is true that an efficient system o f reporting judgments is highly essential for the survival o f the doctrine o f precedent, it is equally true that reliance on precedents improves the quality o f law reporting. The usual method now being followed is to give a head-note, summarising the facts and decision in the beginning, followed by the text o f the judgment.
In England, regular weekly report o f cases began with the All England Reports in the year 1936. There are also several series o f reports covering the earlier period, but their authority varies. In India, there are official as well as unofficial publications reporting the decisions o f the high courts and the Supreme Court. The Supreme Court Reporcs and the Indian Law Reports are the official law reports published under the authority o f the Supreme C ourt and the high courts respectively. Private publications reporting judicial decisions include the Supreme Court Cases, All India Reporter, Law Reports o f India, Judgments Today, Delhi Law Times, Calcutta Law Times, Madras Law Journal, Kerala Law Times etc. There are also publications reporting cases on particular branches o f law, such as the Criminal Law Journal, Income Tax Reports, Labour Law Journal, Consumer Protection Judgments, Company Cases etc. Thus, we find that there is a highly competitive and reliable system o f law reporting in India which makes precedents easily accessible.
Adv a n ta ge sa n d Disadvantageso f Pr ec ed en ts
In any modern legal system, legislation and precedent assume almost equal importance. Some people consider precedent to be a better source o f law than legislation, while others do not consider precedent as law at all. The truth is that both legislation and precedent play their own roles in the development o f law. The most obvious advantage o f precedent is that it can
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always respond to the practical needs o f the society. This imparts flexibility to the rigid rules in the statute. A judge deals with a concrete problem, whereas the legislatures lays down a rule in an abstract and general form in anticipation o f problems. T he judge is able to get a ‘feel’ o f the actual problem before he thinks o f a remedy.
The supporters o f precedent argue that case law is easier to understand than statute law. Principles and rules are stated with reference to a particular factual context, and the reasoning which leads to the conclusion is also elaborately stated. Adherence to the letter or to the formula o f words, which is called the vice o f formalism, is absent in case law. The various rules o f interpretation permit a judge to go beyond the text o f the statute, and facilitate an interpretation which will promote the objectives o f the statute. Another advantage o f precedent is that it is a product o f the best legal brains. Judges o f superior courts, whether appointed directly from the Bar or prom oted from the lower ranks o f the judiciary, possess considerable experience and expertise. Legislative draftsmen and legislators cannot claim to possess these qualities.
Critics o f precedent point out that case law is not law at all, because it is not imperative. This view is not accepted by positivists like Austin who hold that judges are the agents o f the sovereign, and the law made by them is also supported by sanctions as in the case o f any other command o f the sovereign. Another criticism levelled against precedent is that the community has no control over judicial law making. This is true; but there is also some intrinsic merit in the fact that an independent and impartial judiciary can always remain detached and objective without being influenced by the emotional currents prevalent in the community. This enables the judiciary to protect the rights o f individuals as well as those o f the minorities. It is also important to remember that if a judicial decision goes against the spirit o f the community, it can always be overruled by legislation.
Another criticism o f precedent is that it is subjective in nature. A judge can decide cases according to his whims and fancies. W hile there is some truth in the statement that there is a subjective element in every judicial decision, it may not be correct to say that it is totally subjective. There are many factors, which Karl Llewellyn describes as the steadying factors, which ensure fairness and objectivity in judicial decisions, and which do not permit a judicial decision to be arbitrary. Some critics o f precedent allege that judicial decisions are made in haste and under the pressure o f compelling facts. However, it must be noted that every judicial decision is taken after elaborate arguments on both sides by experts, and after careful deliberation o f the relevant provisions o f law and precedents.
A comparison between precedent and legislation immediately reveals
61 4
Lectures in jurisprudence
one major drawback o f precedent, namely, the bulky and voluminous nature , o f case law. The habit o f some judges to write very lengthy judgments ; using incomprehensible language contributes to the difficulties involved 1 in extracting the ratio o f a decision. The increasing trend o f separate \ concurring judgments adds a new dimension to the problem. ■
Another major defect o f precedent is that it is always ex post facto. A rule laid down in a judicial decision is applied to facts which had occurred earlier in point o f time, when the parties had no knowledge o f this rule.
T he hardship caused to the parties is increased when a new rule is laid down overruling an earlier decision. In the case o f legislation, this problem does not arise because legislation operates only prospectively.
It is also to be noted that precedents can never be a substitute for : legislation, because they can never be comprehensive. A precedent is a response to a problem that reaches the court. Whether a particular social problem actually reaches the court depends on several factors, including I the awareness and economic capacity o f the aggrieved parties. !
A final question that has to be considered in relation to precedent is whether in a system o f precedent it is possible to adapt law to the changing conditions o f social life. While following precedents, we look at the past for a solution to the present problem. The development o f law and its capacity to meet new challenges necessarily postulate a futuristic perspective. In a rigid system o f precedent, the judge is always tied down to the past. This is remedied to a great extent by permitting the courts to overrule their own decisions. Creative judges can also find out methods o f expanding and extending earlier precedents, and also use the judicial technique o f distinguishing, which has been already explained. A good judge is a master, and not a slave o f precedents.
The doctrine o f precedent serves a great purpose— that o f ensuring certainty, consistency, predictability, and stability o f the legal system.
Stretched beyond a point, these virtues will become stumbling blocks to the progress o f the law, since law has to respond to social changes. The challenge o f a judge working within the system o f precedent is to reconcile stability and change. The experience o f Comm on Law over a long period o f history, as Julius Stone concludes after an incisive study, bears ample testimony to the fact that Com m on Law judges have achieved significant success in meeting this challenge.
62
Lecture 5
Sources o f Law III: Custom
Or ig ina n d Im p o r t a n c eo f Cu s t o m
There are several theories con cerning the origin o f custom , and its relationship with the law. A discussion o f those theories is not necessary for our purpose. However, a conclusion which emerges as a consensus o f all the theories and is established by actual study o f primitive communities is that custom is anterior to Kings and courts. The origin o f custom may be traced to the very inception o f the community itself. A community involves three essential elements: (i) the group; (ii) the existence o f the divergent desires within the group; and (iii) the claims made by some members against others or against the group. Conflicting claims and desires within the group naturally generate problem s. I f the group is to remain a community, these problems must be resolved, for which certain norms are required. Even in a primitive community, a distinction must be made between what is actually done, and what ought to be done. It may also become necessary to reconcile the norms o f the family, or the tribe with those o f die community. W hen a problem arises, an answer must be found.
Tact and sense o f the merits and appreciation o f the strength o f each party, play a greater part than the desire to find a rule that is just and logically justifiable. Once a rule is adopted, practice generates conviction. Practice grows into convention. What makes convention a custom is the recognition that there is authority behind it. In other words, custom comes into existence when the community in some way backs a particular rule. In the modern state, the legally recognised custom is supported by the courts, and an apparatus o f coercion.
Custom is not necessarily linked to any sense o f justice. The existence o f a custom may be justified by expediency or power relations in a community.
CHAPTER 8
PRECEDENT AS A SOURCE O F LAW\
Introduction
Judicial precedent is an independent source of law and is as important as custom and legislation. In fact, this doctrine o f judicial precedent is an unique feature of English law as also of the Common Law Countries. In England Judge played a significant role in developing the English law.
During the middle ages when the Parliament had not assumed the status of a sovereign, law making body, it was left to the judges to define law and lay down legal principles. Thus, adjudication in England made a great contribution towards the formulation and development of English law. It is said that the English law is mostly a judge-made law. This principle of law which was so common in England is not unknown in countries like U.S.A., India, Australia, Canada and in many other common law countries where the doctrine of legal precedent has been followed. In the continental countries like France, Germany and Italy, however, the system is different, there the judges look to legislation or w ill o f the legislatu re for interpretation of law and are not bound to follow a previous decision o f a higher Court,
It is true from England this doctrine of precedent laws travelled to countries which have derived their legality stems from England. This does not' mean however that the doctrine was an original discovery of the English people. The doctrine was not entirely foreign to Roman law. At Rome although at the time of Justinian, judicial precedents and other analogous types of law were regarded as possessing only persuasive authority. It is abundantly clear from the history of Roman law that during earlier periods they were regarded as having binding authority. That the Romans were familiar with the idea is clearly shown by the number of statutes and constitutions either enacting that they should be followed in subsequent cases or to the contrary. Cicero enumerates res judicata as source of law and the Emperor Septinus Severus says that the authority of an uninterrupted series o f similarly decided cases should have the force o f a statute.
Justin ian , it is true, established by a constitution the contrary principle—that they were to have only persuasive authority but these earlier 1
1. Following readings are suggested for further details, Cross A.R.N. Precedent in English Law (2nd Ed. Oxford, 1968); Alien C.K. Law in the Making (7th Ed. Oxford, 1964), Chaps. 3-4; Gray J.C. The Nature and Sources o f I>n\v (2nd Ed., 1921), pp. 200-216;
Williams E.K Stare decisis (1926) 4 Can BR 289; Morgan C.G. The Heralds o f the Law (Stevens and Sons Ltd.), Chapters 1-4; Pollock FA. First Book o f Jurisprudence, (6th ed.) Macmillan & Co. Ltd. (1929), Chap. 5 Part II; Montros’ J.L. The Language o f and a Notation for, the Doctrine o f Precedent (1951-53) 2 Ann LR 301; Stone J. The Ratio and the Ratio Decidendi (1959) 22 MLR 597; Loyd D. Introduction to Jurisprudence (2nd Ed. 1965) pp. 373. 378; Saxena I.C. The Doctrine o f Precedent in India; (1963) Vol.
- t..--- > — i- ..,- ,,,,! „ „ i S8 -2 1 4 .
PRECEDENT AS A SOURCE OF LAW 119 statutes and even the constitution of Justinian himself makes it clear that the notion o f precedent having the force of law was similar to the powers.
Meaning
A precedent means a previous instance or case which is or may be taken as an example or rule for subsequent cases. In common parlance it means something said or done that may serve to authorise or justify further acts of the same or a similar kind. According to Keeton, a judicial precedent is a judicial decision to which authority has, in some measure, been attached.1 In the words of Gray, ‘a precedent covers everything said or done which furnished a rule for subsequent practice.’* 2 According to Jenks, a judicial precedent, in a decision by a competent court o f justice upon a disputed point of law, becomes not merely a guide but an authority to be followed by all courts of inferior jurisdiction administering the same system until it has been overruled by superior court o f justice or by a statute e.g., the Act of Parliament.3 In short, we can say precedent means the guidance or authority o f past decisions for future cases.
Reasons for
t h eReception of Precedent
The justification o f the binding rule of judicial precedent is based on several reasons. These are—(1) It is based on practical experience rather than on Logic only. "The Judge" says Allen, "is the interpreter o f social mind and he can easily adapt the law to the changing wants o f those amongst whom the law is administered". (2) It is based on convenience in the sense that it provides settled law and thus saved the labour of judges. 13) It prevents error o f judgment by- individual judges. (4) It prevents partiality on the part of the judges. (5) It helps the lawyers to take a cautious view of the development o f law on the basis of past judicial experience.
Position o f Precedent in England
The doctrine of judicial precedent is firmly settled in England.4 The binding character however exists in cases of the inferior courts which are bound by the decisions of the superior courts. A superior court is never
1 Keeton, op. cit., p. 96, 2. Gray. op. c it, p. 198.
3. Jenks op. cit., p. 70.
4. "In England this doctrine o f precedent, however, has never been formally imposed upon the law. It has grown up spontaneously within it. The early centralisation o f justice in England led to the evolution o f an order of highly trained royal judges, standing in close relationship to the Crown, and therefore, possessing very extensive authority.
During tlie Middle Ages, Parliament frequently consulted the judges in the process Of legislation and it was therefore natural to invest their pronouncements upon the law with special authority. Again, the orderly development o f the Common Law by means o f the writ system required a certain uniformity o f interpretation, and this led, first to the year books, and later to the doctrine o f Judicial Precedent. Day to day changes in the law were appropriately undertaken by the judges. English people have always looked to their judiciary as the fount o f law and the courts have made it their province to ensure that fount should never run dry. They have regarded law as a comprehensive whole, capable o f indefinite application to special cases, and possessing the inherent quality o f consistency. It is precisely this quality o f consistency which enabled the
English people to accept Judee-m«rf» —
120 JURISPRUDENCE
bound ,by the decisions of the lower courts. Again, one court o f similar jurisdiction is not bound by the decision o f the courts o f coordinate jurisdiction. The hierarchy of court in England is as follows :—
House of Lords
i ' 1
j
I
I
Court of Criminal Appeal I Which is an appellate court for criminal cases)
Court o f Appeal (where the appeals of the cases other than criminal go,'
High Courts
i
Queen’s Bench Division
County Courts
Chancery Probate, Divorce Division and Admiralty Division
i
Magistrate Courts House o f Lords
In England the highest Court is House o f Lords. Its decisions are absolutely binding on all inferior Courts. Whether House of Lords itself is bound by its own decisions ? This question was doubtful till the year 1860.
In Attorney General v. Dean o f Windsonf Lord Campbell laid down that the House o f Lords is bound to accept its own decision. He observed—
‘By the Constitution of this United Kingdom the House of Lords is the Court o f Appeal in the last resort, and its decisions are authoritative and conclusive declaration of existing state of the law and are binding upon itself judicially as much as upon all inferior tribunals".
Lord Campbell reiterated the above view very strongly in the case of Beamish v. Beamish 3 He said—
"But it is my duty to say that your Lordships are bound by this decision as much as it had been pronounced ‘nemine dissentiente’, and that, the rule o f law which your Lordships lay down as the ground o f your judgment, sitting judicially as the last and the Supreme Court of Appeal for this empire, must be taken for law till altered by an Act o f Parliament, agreed to by the Commons and 1
1. U860) 8 HLC 369 at pp. 391-392; See also Caledonian Railway Co. v. Walker Trustees.
TAl 7 AC 259.
PRECEDENT AS
A SOURCE OF
LAW 121Crown as well as by your Lordship. The law laid down as your ratio decidendi, being clearly binding upon your Lordships, this House would be arrogating to itself the right of altering the law and legislation by its own separate authority".
Lord Campbell’s opinion was re-affirmed in the year 1898 by Lord Halsbury, L.C. in London Street Tramways Co. Ltd. v, London County Council} He observed—
"What is the occasional interference with what is perhaps abstract justice as compared with the inconvenience—the disastrous consequence of having each question subject to being re-argued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and fact there would be no real final Court o f Appeal".
This case (London Tramways’ case) laid down that once the law has been settled by the House o f Lords it is deemed always to have been the law.*
Today the position is, however, different. A new trend we find in a famous case o f Boys v. Chaplin ,4 In 1966, House of Lords announced (in ‘Practice Statement) (Judicial precedent) that it would no longer consider itself absolutely bound by its own decisions. The Lord Chancellor made the following announcement:
’’T h eir Lordships regard the use o f precedent as an indispensable foundation upon which to decide what is law and its application to individual cases. It provides at least some degree of certainty upon which, individuals can rely in the conduct o f their affairs, as well as a basis for orderly development o f legal rules".
"T heir Lordships nevertheless recogn ise that too rigid adherence to precedents may lead to injustice in a particular case and also unduly restrict their proper development o f the law. They propose therefore to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so",
"In this connection they will bear in the mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law".
"This announcement is not intended to affect the use of precedent elsewhere than in this House".
Supreme Court o f the United Kingdom
In October, 2009 the Supreme Court of the United Kingdom replaced the appellate committee o f the house of lords as the highest Court in the United Kingdom. It consists of 12 members including Chief Justice of Supreme Court._____________________
1. 1895 AC 375.
2. In Viscounters Rhondda’s claim case, (1922) 2 AC 339, it was held that the House of Lords is not bound by its own previous decisions when it is sitting as a committee of privileges of the House of Lords on matter relating to peerage. Again, in iM-zard Brothers v. Midland Bank. 1933 AC 289 it was laid down that House o f Lords is not bound bv its own nrpvious flr.fricir.ite
122 JURISPRUDENCE
The Court hears appeals an arguable points of law o f the greatest public importance, for the whole o f the United Kingdom is civil cases and for England, Wales, and Northern Ireland in criminal cases.
Additionally, it hears cases on devolution matters under the Scotland Act, 1989, the Northern Ireland Act, 1988 and the Govt, o f Wales act, 2006.
This jurisdiction was transformed to the Supreme Court from the judicial committee o f the privy council.
Court of Appeal and Court of Criminal Appeal
The Court o f Appeal is bound by the decisions o f the Supreme Court and also by its own previous decisions. That the Court o f Appeal is absolutely bound by its own decisions was decided by Full Bench of the Court o f Appeal in 1944 in Young v. Bristol Aeroplane Co. Ltd
. 1In this case the judges did not discuss the grounds on which it was based but followed the views of Lord Cozen-Hardy, M.R. given in Velazquez Ltd. v. Inland Revenue Commissionersi 2 that—
"When there has been a decision o f this Court, upon a question of principle it is not right for this Court, whatever its own views may be, to depart from the decision. There would otherwise be no finality in the law".
The Court o f Appeal is however not bound by its own decisions in following three cases—
(1) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled cannot, in its opinion stand with decision of the House of Lords.3 4
(2) The Court is not bound to follow a decision o f its own if it is satisfied that the decision was given per incurium, e.g., where a statute or a rule having statutory effect which would have effected the decision was not brought to the attention o f the earlier court.'1
(3) The Court is not bound by its own decision in case there are two conflicting decisions of its own.5
Like Court o f Appeal, Court of Criminal Appeal is also bound by the decisions of the Supreme Court and of its own previous decisions. Court of Criminal Appeal is not bound by the decision of Court of Appeal as both are Court o f Co-ordinate jurisdiction. The Court o f Criminal Appeal, however, can disregard its own previous decision i f it is found that it has misconstrued, or mis-applied the law and may again reconsider its previous decision.
High Courts are bound by the decisions of the Supreme Court, Courts o f Appeal, Court o f Criminal Appeal and by its own previous decisions.
Similarly County Courts and the Magistrates’ Courts are bound by the decisions of House of Lords, Court of Appeal, Court of Criminal Appeals, High Courts and by its own decisions.
1. 1844 KB 718.
2. (1914) 3 KB 458.
3. See Lyus v. Stepney Borough Conneit, 11940) 2 KB 663.
4. See Young v. Bristol Aeroplane Co. Ltd., (1944) KB 718.
PRECEDENT AS A SOURCE OF LAW 123
Position o f Precedent in India
Under ancient Hindu law the doctrine o f precedent was recognised by Hindu law-givers. Manu, the renowned law-giver o f Hindus, advocated the theory of precedent in order to settle doubtful points of law. He said "if it be asked how it should be with respect to (points of) the law which have not been (specially) mentioned, (the answer is), that which Brahmans (who are) Sishtas propound shall doubtlessly have legal (force)”1 Y ajnavalk ya has also m entioned precedent as one o f the sources o f law s.* 2 3 A gain , in the Mahabharat, it has been suggested that since texts (might) conflict with each other and the purport o f law is difficult to arrive at, the path adopted or shown by the great men should be followed. However, it can be pointed out here that in ancient Hindu law the term ‘precedent’ is not used in the modern sense o f a decision coining from a court.4
It was during the British rule in India that the doctrine became very important. In 1813, Mr. Dorm suggested that statutoiy force to be given to this theory. He said, "I think it should be enacted by a Regulation, that from a given period, the judgments of the court shall be considered as precedents binding upon itself and on the inferior courts in similar cases which may arise thereafter".5
In the nineteenth century because of the popularity o f the publication of reports of decided cases and digests the doctrine of precedent acquired a more significant place.6 It was, however, in the twentieth century that the doctrine o f precedent got statutory recognition. Section 212 of the Government of India Act, 1935 made the ‘Law declared by Federal Court and Privy Council to be binding on all Courts.7 It ran as follows—
"The law declared by the Federal Court and by any judgment o f the Privy Council shall, so far as applicable, be recognised as binding on, and shall be followed by, all courts in British India, and, so far as respects the application and interpretation of this Act or any order in Council thereunder or any matter with respect to which the Federal Legislature, has power to make laws in relation to the
1. Manu Ch. XU, Verse, 108, The text is as under*—
3Rrar ^ 4 ftiEi "aigm
For translation see, Bulher 25 (Sacred Books of the East) the Laws o f Menu 509 (Max Muller Ed. 1886).
2. Yajnavalkya, Ch. I, Verse 7
fjffc W 3 K : V
W W R : -SKrit -pjarpi , II
3. The Mahabharat, Vanaprava Ch. 313, Verse 117, The pertinent text is as follows—
arifs-sfc® fjtritftrfsrar itfer
rttrantTi tritv ns* ftfei usra nsrsrit % -nit wqsnu
4. The Mohanimadan jurisprudence also recognised the doctrine o f judicial precedent.
According to it, the holy Quran is regarded as important sources o f law but problems which are not solved by a Quranic law, is under the Muslim law to be solved by other agencies. This other agencies include precedent also.
5. Selection from the Records o f the East—India House, Vol. 11, at 20; adopted, from
Morley, Administration o f Justice in India. \
6. For a survey of the Law Reporting Systems, and Digests of decided cases in India, see Mukerji, "Reports o f Judicial Preceden+o r...i. -.- ■
124 JURISPRUDENCE State, in any Federated States", Hierarchy o f courts in India is as follows—
Position after 1950
Supreme Court i High Courts
A District Courts
l
Magistrate’s Court (it is the Court of the first instance in criminal cases)
Munsifs Court (it is the Court of the first instance in civil cases) Supreme Court
Article 141 of the Constitution of India provides that ‘the Law declared by the Supreme Court shall be binding on all courts within the territory of India’. In Article 141 the expression ‘all courts’ has been used. Now the question comes whether all courts include Supreme Court also,’ That is to say whether Supreme Court is bound by its own decision or not. The position was not clear before 1954. In 1954, an important case Dwarkadas v. Sholapur Spinning and Weaving Co
. , 1came before the Supreme Court, where Mr.
Justice Das (as he then was) expressed the view,. "Accepting that the Supreme Court is not bound by its own decisions and may reverse « previous decision especially on constitutional questions the Court will surely be slow to do so unless such previous decision appears to be obviously erroneous".
The position became very clear after this and in 1955 the Supreme Court in Bengal Immunity Co. v. State o f Bihar
,1 2 *overruled its own previous judgment of the State o f Bombay v. The United Motors Ltd
. 2In this case the Supreme Court observed—
"There is nothing in Indian Constitution which prevents the Supreme Court from departing from its previous decision if it is convinced o f its error and its baneful effect on the general interest o f the public".
In Sajjan Singh v. State o f Rajasthan
,4Gajendragadkar, C.J., while considering the question of precedent observed—
"It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from
1. AIR 1954 SC 119.
2 AIR 1955 SC 661.
S. AIR 1953 SC 255 4. A t ft UMS* '2r< su k
