Sunteți pe pagina 1din 22

A Report on Law of Precedent

Submitted to:-

Advocate Raksha Awasthi

(High Court of Chhattisgarh)

Submitted By:-

Ishu Deshmukh

Semester IV

BA.LLB(Hons.)

Hidayatullah National Law University, Raipur C.G.


CONTENTS

1. Introduction
2. Article 141 of Indian Constitution
3. Precedent and other sources of law
4. Nature and Scope of Precedent
5. Doctrine of Precedent in India
6. Role of Precedent
7. Conclusion
Introduction

It is very difficult, if not impossible, to give a precise definition of Law. Often


quoted, although not widely believed, definition of Law is of that given by Austin according
to which Law is the command of the ‘Sovereign’.

And law comes from its different sources like legal, historical, formal and non formal
sources, legislation, custom, precedents, etc. As a matter of degree, the Courts tend to attach
greater weight to their own previous decisions than to the views of text writers. A judicial
precedent speaks with authority. It is an evidence of law and source of it. The authority of
precedents is great because of power, skill and professional reputation of judges who make
them. Judicial precedent means the process whereby judges follow previously decided cases
where the facts are of sufficient similarity. Sources of law may be classified into Legal and
Historical sources. Legal sources are those which are recognized as such by law itself.
Historical sources are those sources lacking formal recognition by law. The legal sources of
law are authoritative and are allowed by the law courts as of right. The historical sources of
law are unauthoritative. They influence more or less extensively the course of legal
development, but they speak with no authority. All rules of law have historical sources but
not all of them have legal sources.

Here, in this project I will specifically deal with Article 141 of the Indian Constitution and
role of precedent as a source of law. It is today the prevailing opinion that a decision of a
court of law, particularly a court of high authority, which explicitly or implicitly lays down a
legal proposition constitutes a general and formal source of law. It is the reason or legal
principle of the case, which is known as the ratio decidendi applied by the Doctrine of stare
decisis, which forms the law for the future. A decision is not binding because of its
conclusion, but in regard to its ratio and the principles laid down therein which is declared in
the case Bachan Singh v State of Punjab1.

1
AIR(1980) 2 SCJ 475
ARICLE 141 OF THE INDIAN CONSTITUTION

Law declared by Supreme Court to be binding on all courts. The law declared by the
Supreme Court shall be binding on all courts within the territory of India.

1.1 Supreme Court ‘makes’ law:

In terms of Article 141 of the Constitution, the Supreme Court is enjoined to declare law. The
term ‘declared’ is wider than the term ‘found’ or ‘made’. To declare means to announce
opinion. Indeed, the term ‘made’ involves a process, while the term ‘declared’ expresses
result. The law declared by the Supreme Court is the law of the land. It is a precedent for
itself and for all the Courts/Tribunals and authorities in India. To deny this power to the
Supreme Court on the footing that it only ‘finds’ law but does not ‘make’ it, is to make
ineffective the powerful instrument of justice placed in the hands of the highest judiciary.

While the position of the Supreme Court is subordinate to the Legislature, it must be
recognised that in the Supreme Court’s efforts to achieve its purpose of ‘declaring’ the law,
creativity is involved. A statute is binding; but it is the statute, as interpreted by the Supreme
Court that is binding on all the other Courts. The Supreme Court is not a mere interpreter of
the existing law. As a wing of the State, it is a source of the law.

1.2 Purposive interpretation preferred to literal interpretation:

In the aforesaid background, rising above the doctrine of literal interpretation, judicial
activism has been pleaded in the matter of interpretation of statutes. Having consistently
followed such approach, the doctrines of purposive and progressive interpretation have come
to prevail in the matter of statutory as well as constitutional interpretation. This, however, is
subject to the limitation that the Court cannot rewrite the law in the guise of interpretation.

1.2.1 While ‘interpreting’ law, the Supreme Court may ‘alter’ it :

Article 141 empowers the Supreme Court to ‘declare’ the law and not enact it. Hence,
observations of the Supreme Court should not be read as statutory enactments. At the same
time, this Article recognises the role of the Supreme Court to alter the law in the course of its
function to interpret a legislation so as to bring the law in harmony with social changes.
1.3 Constitutionality:

1.3.1 Where a High Court allows several writ petitions declaring a Statute as
unconstitutional:

In such a case, if the State appeals to the Supreme Court only in one of the petitions and in
that appeal, the Supreme Court upholds the validity of the Act (setting aside the judgement of
the High Court), the law declared by the Supreme Court would, in terms of Article 141, be
binding on all the petitioners before the High Court and not merely the particular petitioner
against whom the State had preferred appeal.

1.3.2 Where a State Government is a party duly represented before the Supreme Court :

In such a case, the decision of the Court declaring a State Act as ultra vires shall be binding
on that State Government, even where no notice, as required by the Code of Civil Procedure,
was served upon the Advocate-General.

1.4 Retrospectivity:

Where the Supreme Court has expressly made its ratio prospective, the High Court cannot
give it retrospective effect. By implication, all contrary actions taken prior to such declaration
stand validated.

The doctrine of prospective over-ruling is applicable to matters arising under the Constitution
as well as the statute. Applicability of the doctrine is left to the discretion of the court to be
moulded in accordance with justice of the cause and matter before it. If the Supreme Court
does not exercise its discretion to hold that the law declared by it would operate only
prospectively, the High Court cannot of its own hold so. When the Supreme Court interprets
an existing law overruling the interpretation given to it earlier and does not lay down any new
law, declaration of law by it relates back to the law itself.

2. What is binding under Article 141? :

What is binding is the ratio of the decision and not any finding on facts, or the opinion of the
Court on any question which was not required to be decided in a particular case.
The law that will be binding under Article 141 would extend only to the observations on the
points raised and decided by the Court in a case. Therefore, as a matter of practice, the Court
does not make any pronouncement, particularly in Constitutional matters, on the points not
directly raised for its decision.

General principle of law laid down by the Supreme Court is applicable to every person
including those who are not a party to that order.

In other words, it is the principle underlying a decision that is binding. While applying the
decision in a later case, therefore, the later Court should try to ascertain the true principle laid
down by the previous decision, in the context of the questions involved in that case from
which the decision takes its colour.

2.1 Decisions of the House of Lords and Privy Council:

All Courts in India are bound to follow the decisions of the Supreme Court even though the
same are contrary to the decisions of the House of Lords or of the Privy Council.

2.2 To ascertain its binding nature — Judgement to be read as a whole:

A judgement must be read as a whole and the observations from the judgement have to be
considered in the light of the question before the Court. It is the principle found upon reading
the judgement as a whole in the light of the questions before the Court that is relevant and not
particular words or sentences.

2.3 Precedent value of the decision — only on question of law :

A decision is available as a precedent only if it decides a question of law.

2.4 Majority view binding — Not minority view:

When the Court is divided, it is the judgement of the majority which constitutes the ‘law
declared’ by the Supreme Court and not the view or observations of the judges in minority.

It is immaterial that the conclusion of the majority was arrived at by several judges on
different grounds or different processes of reasoning.
2.5 Ex-parte decision, too, binding:

To determine whether a decision is ‘declared law’, it is immaterial whether the Supreme


Court gave the decision ex-parte or after a hearing.

2.6 Procedural irregularity — Immaterial:

The binding force of a judgement as a precedent is not affected by any procedural irregularity
in hearing the case.

2.7 Special leave petition:

In a Special Leave Petition, there is a ‘law declared’ if the Court gives reasons for dismissing
the Petition. However, there is no law declared where the Court gives no reasons for
dismissal.

3. What is not binding?

3.1 Certain decisions — Not binding:

The following kinds of decisions cannot be deemed to be a law declared to have a binding
effect as is contemplated by Article 141 :

 The decision that is not express


 The decision not founded on reasons
 The decision that does not proceed on consideration of the issue.

The later Court would not be bound by those reasons or propositions which were not
necessary for deciding the previous case. Conversely, the later Court cannot unnecessarily
expand the scope and authority of the precedent. In other words, a judgement cannot be
construed as an Act of Parliament. It must be read in the context of the questions that arose
for consideration in the case and not as embracing all aspects of every question relating to the
subject or laying down principles of universal application. In the absence of parity of
situation or circum-stances, the reasoning of one decision cannot be applied in another case.

3.2 Obiter dicta — Not binding :


Only ratio decidendi is binding; obiter dicta, that is, the general observations have no binding
force. Since an obiter is not binding as the law declared under Article 141, it cannot be relied
upon solely to hold certain statutory rules as invalid.

An obiter dictum is an observation made by a Court on a legal question suggested by a case


before it, but not arising in such manner as to require the Court’s decision. It is not binding as
a precedent, because the observation was unnecessary for the decision given by the Court.

An obiter of the Supreme Court though not binding as precedent, is worthy of respect and
consider-able weight.

While the decision of the Supreme Court cannot be assailed on the ground that certain aspects
were not considered or the relevant provisions were not brought to the notice of the Court, the
position is different as regards obiter.

3.3 Decisions per incuriam and sub-silentio — Not binding :

These two doctrines constitute exceptions to the rule of pre-cedents. The expression per
incuriam means ‘resulting from ignorance of’. If a decision is rendered per incuriama statute
or binding authority, the same may be ignored.

Another exception to the rule of precedents is the rule of sub-silentio. A decision is sub-
silentio when the point of law involved in the decision is not perceived by the Court or not
present to its mind. A decision not expressed, not accompanied by reasons and not
proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to
have a binding effect as is contemplated by Article 141. That which has escaped in the
judgement is not the ratio decidendi. This is the rule of sub-silentio, in the technical sense
when a particular point of law was not consciously deter-mined.

3.4 Later decision — Not binding if the earlier decision is by a larger bench :

If the later decision is that of a larger Bench, the previous decision will be deemed to have
been overruled1. Thus, the judgement of a 3-Judge Bench is binding on a Bench of 2 Judges.
However, where there is a conflict between two decisions of the Supreme Court, it is the later
decision that will be bind-ing on the lower Courts, unless the earlier decision was by a larger
Bench.
3.5 Supreme Court’s observations on facts — Not binding :

Statements on matters other than ‘law’, e.g., facts, have no binding force, for the facts of two
cases are generally not similar. On this principle, decision on a question of sentence cannot
be regarded as ‘law declared’. A reference may, however, be made to the under-noted
Bombay High Court decision51 in which it was held that if the facts were the same, the
Supreme Court decision was a binding precedent.

3.6 Decision based on concession — Not binding :

No law is laid down when a point is disposed of on concession. If the Court proceeds on the
basis of concession made by a party, the decision cannot, by any stretch of imagination, be
termed a binding precedent and cannot have the sanctity and solemnity of a binding
precedent.

4. High Court and lower Courts — Bound by Supreme Court decisions :

4.1 Lower Courts duty-bound to follow :

When some principle has been laid down by the Supreme Court or some practice is
deprecated, it is the duty of the High Court or lower Court to follow the decision of the
Supreme Court, even though it may not have the approval of the Judge of the High Court or
lower Court where the Supreme Court decision is cited. The Central Admini-strative
Tribunal, too, is bound to follow the Supreme Court decisions.

4.2 Not to follow is ‘contempt’ :

A judgement of the High Court that refuses to follow the directions of the Supreme Court or
seeks to revive a decision of the High Court which was set aside by the Supreme Court, is a
nullity. The Supreme Court may treat it as contempt even where its order was couched in the
language of a request.

4.3 Remand by the Supreme Court:

Where, however, in a subsequent petition under Article 32, the Supreme Court directs the
petitioner to go before the High Court and directs the High Court to ‘reconsider’ the matter,
the High Court would not be fettered by its own previous judgement.
4.4 Lower Courts — Not to seek clarification :

If a direction of the Supreme Court is clear, a party cannot approach the Court for
clarification for assisting the High Court, since the same would tantamount to nullifying the
Supreme Court order or notification.

4.5 Non-consideration of a particular argument — No ground to assail the decision :

The binding force of a Supreme Court decision cannot be as-sailed on the ground that it did
not consider a particular argument provided the point to which the argument relates was
actually decided therein.

5. Supreme Court — How far bound by its own decisions ?

The words ‘all courts’ in Article 141 do not include the Supreme Court. In overruling its
earlier decision, the Supreme Court should remember that while the decisions of other Courts
are binding only upon the litigants, a decision of the Supreme Court is something more : it is
declaratory for the nation. Accordingly, the Supreme Court is free to depart from its earlier
decision in certain cases.
Precedent And other Sources Of Law

In the ordinary sense ‘Source of law’ means the origin, beginning or the spring
rise to the stream of the rule of law. Generally, the “Sources of Law” can be understood only
after going through the writings and theories of various theorists and jurists. The laws derive
its force, spirit and validity from the sources of law. Law comes into existence only when it is
constructed on the valid sources. Without valid sources, any set of rules, governing human
conduct cannot be treated as laws. Thus, sources will occupy the most important place in the
study of law. Once we know what the sources of law are; then it is very easy to know what
law is2. Actually the term ‘source of law’ is used in different senses – According to Austin .
“The source of law is the authority from which the law derives its force or validity”. In this
sense, the source of law is the Sovereign or State.

There are many sources of law one of them is ‘precedent’ but before moving further we
should understand what the term ‘source of law’ means. It generally means the sources from
where the law has been obtained. Sources of law can be classified as either legal or historical.
The former are those sources which are recognized as such by the law itself. The latter are
those sources lacking formal recognition by the law. The legal sources of law are
authoritative, the historical are unauthoritative. The former are allowed by the law courts as
of right; the latter have no such claim; they influence more or less extensively the course of
legal development, but they speak with no authority. No rule of law demands their
recognition.3 The legal sources are the only gates through which new principles can find
entrance into the law. Historical sources operate only mediately and indirectly. 4 All rules of
law have historical sources. As a matter of fact and history they have their origin somewhere.

3.1 Legislation

Legislation has become the commonest source of new laws or of law reforms today. It is the
source of law which consists in the declaration of acts legal rules enforceable by a competent
authority. To legislate is to make new laws in any fashion. Legislation includes every
expression of the will of the legislature. Every Act of Parliament is an instance of legislation.
The legislature does not confine its action to the making of rules, yet all its functions are
included in the term legislation.

2
Hijam NK. Singh, jurisprudence explained, 1999, p.132
3
P.J. Fitzgerald, Salmond On Jurisprudence, 2008 p. 109-110
4
Id p. 110
3.2 Custom

Custom is frequently the embodiment of those principles which have commended themselves
to the national conscience as principles of justice and public utility. 5 Custom has an important
place as a source of law. It is the most important non-formal source of law. Custom exists as
law in every country, though it everywhere tends to lose its importance relatively to other
kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of
existence and general acceptance of which is proved by their customary observance, is no
doubt the oldest form of law making. It marks the transition between morality and law.

The term law includes ‘custom’ and ‘usages’ having the force of law. In Dasharatha
Rama Rao v State of Andhra Pradesh6, Das, J., said “Even if there was a custom which has
been recognized by law….that custom must yield to a fundamental right”. But personal laws,
such as Hindu Law, Mohammedan Law, are not included within the expression which has
been expounded by the courts.

3.3 Precedent

A Precedent is a statement of law found in the decision of a superior court, which decision
has to be followed by that court and courts inferior to it. A decision is cited as a precedent to
be followed in other cases if it is based on some principle of law. Decisions on questions of
fact may not be cited as precedents. The line between “law” and “fact” may be difficult to
draw. An issue is one of fact where it turns on the reliability or credibility of direct evidence,
or on inferences from circumstantial evidence.7

The value of the doctrine of precedent has been much debated. Judges have been criticised
on the grounds that precedents give them the power to transform from law-implementors to
law-makers. However, it has also been argued in favour of Precedents that the practice is
necessary to secure the certainty of the law. At a time of commercial development and
constitutional jurisprudence, it is the duty of the superior courts to be cautious in laying down
precedents keeping in mind future developments.

3.3A Characteristics of Precedent:-

5
Salmond On Jurisprudence, 12th edition, by P.J. Fitzgerald, Universal Law Publishing Ltd., Delhi, 2008 p. 190
6
AIR 1961 SC 564
7
S.H. Bailey, Jane Ching, M.J.Gunn, ‘Bailey and Gunn on The Modern English Legal System’ P. 479, Smith, by,
(sweet & Maxwell) London 2002
 Precedents has its source in judicial decisions.
 Precedents are created by the courts themselves.
 Precedents are recognition and application of new principles of law by courts in the
administration of justice.
 A precedent comes into existence only after the case has arisen and taken for decision
of the court.
 The scope of judicial precedent is limited to similar cases only.
 Precedent is retrospective in nature.
 Precedent carries judicial authority, as if any other law does.
Nature and Scope of Precedent

4.1 Overview

As a matter of degree, the Courts tend to attach greater weight to their own previous
decisions than to the views of text writers. A judicial precedent speaks with authority. It is an
evidence of law and source of it. The authority of precedents is great because of power, skill
and professional reputation of judges who make them. Judicial precedent means the process
whereby judges follow previously decided cases where the facts are of sufficient similarity
Precedents carries judicial authority, as if any other law does. Many decisions have been
brought out by the courts in deciding cases on various subjects matters. These decisions will
stand as the precedents for the courts to decide future litigations.8

Different jurists have defined precedent in different ways –

 According to Salmond – Precedents are judicial decisions followed in subsequent


cases.
 According to Gray – A precedent covers everything said or done, which furnishes a
rule for subsequent practice.
 According to Keeton – A judicial precedent is a judicial decision to which authority
has in some measure been attached.

4.2 Kinds of Precedents

 Original and Declaratory


1. Original Precedents are those which creates or establish original or new rules
of law.
2. Declaratory Precedents are those which merely reiterates and apply already
existing rule of law.
 Authoritative and Persuasive Authoritative precedent - The decisions of the
Superior Courts of Justice in England are authoritative precedents recognized by
English Law. In our country, Article 141 of the Constitution says that the law declared
by the Supreme Court shall be binding on all courts within the territory of India. By
this, it is made clear that all courts in India are bound to follow the decisions of the
Supreme Court even though the said decisions are contrary to decisions of the House

8
jurisprudence explained’ by Hijam NK. Singh, ‘capital law house’, 1999, p.149, Delhi
of Lords or of the Privy Council. Privy Council decisions are binding on the High
Court so long as the Supreme Court does not overrule them. PANDURANG KALU
Vs. STATE OF MAHARASHTRA9 The Supreme Court under Article 141 of the
Constitution is enjoined to declare law. The law declared by the Supreme Court is the
law of the land. It has been held in the case reported in BENGAL IRON
CORPORATION Vs. COMMERCIAL TAX OFFICER10 that no doubt a statute is
binding, but it is the satute as interpreted by the highest court which is binding on all
other courts.
 Persuasive precedent – a persuasive precedent is one which a judge is under no
obligation to follow, but which they will take into consideration and to which they
attach such weight as it seems to them to deserve. Decisions of court of co-ordinate
jurisdiction are only persuasive.

4.3 Elements of Judgement

 ‘Ratio Decidendi’ - It means reasons for the decision. The Supreme Court has held in
Dalbir Singh Vs. State of Punjab11 that every decision has three basic ingredients. 1)
the findings of material facts direct and inferential; 2) the principles of law applicable
to the legal problems disclosed by the facts, and 3) the judgment based on the
combined effect of 1 and 2. For the doctrine of precedents, ingredient 2 is the vital
element. Only the Ratio of a decision has binding force. Ratio means the principle
found out on reading of judgment in the light of the question before the Court
 ‘Obiter Dicta’
The judge may go on to speculate what his decision would or might have been if the
facts of the case might have been different. This is an obiter dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not
binding in later cases because it was not strictly relevant to the matter in issue in the
original case. However, an obiter dictum may be of persuasive authority in later cases.

4.4 Exceptions to the authority of Precedents

9
AIR (2003) SC 733
10
1994 (1) Supp. SCC 310
11
AIR (1979) SC 1384
 SUB-SILENTIO A decision passes sub-silentio, in the technical sense when the
particular point of law involved in it was not perceived by the Court or present to its
mind. The Court may consciously decide in favour of one party because of point A,
which it considers and pronounces upon. It may be shown, however, that logically
that the Court should not have decided in favour of the particular party unless its also
decided point B in his favour; but point B 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 outcome, the decision is not an authority on point B.
Point B is said to pass sub-silentio.
In Gerard Vs.Worth of Paris Ltd.12, It was held that the point raised did not
deliberately passed sub-silentio by counsel in order that the point of substance might
be decided. Thus we see that the rule that precedent sub-silentio is not authoritative
has got a long history behind it. In M/s. A-One Granites Vs. State of U.P.13, question
arose regarding applicability of R. 72 in case of re-grant of a mining lease which had
not been referred to nor considered by the Supreme Court in the earlier decision
rendered in Premnath Sharma Vs. State of U.P.14 Precedent sub-silentio was held to
be not binding.
 Per-Incuriam
‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per
ignoratium. English Courts have developed its principle in relaxation of the rule of
stare decisis. The Supreme Court has held, in the case reported in the State of U.P.
Vs. Synthesis & Chemicals Ltd.15, that the ‘quotable in law’ is avoided and ignored if
it is rendered ‘in ingoratium of a statute or other binding authority’. A precedent is not
binding if it was rendered in ignorance of a statute or a rule having the force of statute
i.e., delegated legislation. This rule was laid down for the House of Lords by Lord
Halsbury in London Street Tramways Vs. London County Council (1898 AC 375). A
judgment which has not failed to notice either statutory provision in substance and
effect or binding precedent cannot be said to be per incuriam. [M/s. Fuerst Day
Lawson Ltd. Vs. Jindal Exports Ltd.16

12
(1936) 2 AII.E.R. 905
13
AIR 2001 SCW 848
14
AIR 1997 SC 2252.
15
(1994) 4 SCC 139
16
(2001 AIR SCW 2087)
Doctrine of Precedent in India

In the Indian context the expression “sources of law” is generally used in two senses.
The first sense, according to Hindu scriptures – Duty is the foundation head of all law, while
according to modern jurisprudence, it is the sovereign from where the law emanates. In the
second sense, the expression means where one must resort to get at law. Thus the sources of
hindu law can be said to be the Sruti and Smriti. But here in India ‘Precedent’ also have a
important place when we talk about ‘sources of law’.

Pre-Independence

According to S.212 of the Govt of India Act, 1935 - Law laid down by Federal Court and

any judgment of the Privy Council is binding on all courts of British India – Privy Council
was supreme judicial authority – AIR 1925 PC 272.

Post-Independence

SC became the supreme judicial authority – streamlined system of courts established.

Supreme Court - Binding on all courts in India. Not bound by its own decisions, or decisions

of PC or Federal Court – AIR 1991 SC 2176

High Courts - Binding on all courts within its own jurisdiction. Only persuasive value for

courts outside its own jurisdiction.

Lower courts - Bound to follow decisions of higher courts in its own state, in preference to

high courts of other states.

5.1 Conflicting views

It has been held by Karnataka High Court in Rudrayya Vs. Gangawwa 17 that even in cases
where a High Court finds conflict between the views of the larger and smaller Supreme Court
Benches, it may not disregard the views of the larger Bench. The proper course for the High
Court would be to try to find out and follow the opinion of the larger Benches in preference
to the opinion of the smaller benches.

17
(AIR 1976 Kar. 153)
A Full Bench of Karnataka High Court in the case reported in Govinda Naik Vs. West Patent
Press18 has held if there is inconsistency between two Supreme Court decisions one by a
Bench of three Judges and the other of four Judges, the latter has to be followed.

When a precedent is disregarded, the court may either overrule it, or merely refuse to follow
it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and
formally deprived of all authority, and becomes null and void and a new principle is
authoritatively substituted for the old. The Supreme Court will not ordinarily depart from its
earlier decision. However, if an earlier decision is found erroneous, and is thus detrimental to
the general welfare of the public, the Supreme Court will not hesitate in departing from it, as
it laid down in the case Sajjan Singh v State of Rajasthan19. Where a precedent is merely not
followed, the result is the two stand side by side conflicting with each other. Such a situation
can be solved only when a higher authority formally overrules one of the laws and sanctions
the other. The Supreme Court is not bound by its own decisions and may overrule its
previous decisions. It may overrule them either by expressly saying so, or impliedly by not
following them in a subsequent case. Judgments are not scriptural absolutes but relative
reasoning.

18
AIR 1980 KAR. 92 (FB)
19
AIR 1965 SC 845
ROLE OF PRECEDENT

The use of precedent has been justified as providing predictability, stability, fairness, and
efficiency in the law. Reliance upon precedent contributes predictability to the law because it
provides notice of what a person's rights and obligations are in particular circumstances. A
person contemplating an action has the ability to know beforehand the legal outcome. It also
means that lawyers can give legal advice to clients based on settled RULES OF LAW.

The use of precedent also stabilizes the law. Society can expect the law, which organizes
social relationships in terms of rights and obligations, to remain relatively stable and coherent
through the use of precedent. The need is great in society to rely on legal rules, even if
persons disagree with particular ones. Justice LOUIS D. BRANDEIS emphasized the importance
of this when he wrote, "Stare decisis is usually the wise policy, because in most matters it is
more important that the applicable rule of law be settled than that it be settled right" (Burnet
v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]).

Reliance upon precedent also promotes the expectation that the law is just. The idea that like
cases should be treated alike is anchored in the assumption that one person is the legal equal
of any other. Thus, persons in similar situations should not be treated differently except for
legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and
limits a judge's ability to determine the outcome of a case in a way that he or she might
choose if there were no precedent. This function of precedent gives it its moral force.

Precedent also enhances efficiency. Reliance on the accumulation of legal rules helps guide
judges in their resolution of legal disputes. If judges had to begin the law anew in each case,
they would add more time to the adjudicative process and would duplicate their efforts.

The use of precedent has resulted in the publication of law reports that contain case decisions.
Lawyers and judges conduct legal research in these reports seeking precedents. They try to
determine whether the facts of the present case precisely match previous cases. If so, the
application of legal precedent may be clear. If, however, the facts are not exact, prior cases
may be distinguished and their precedents discounted.

Though the application of precedent may appear to be mechanical, a simple means of


matching facts and rules, it is a more subjective process. Legal rules, embodied in precedents,
are generalizations that accentuate the importance of certain facts and discount or ignore
others. The application of precedent relies on reasoning by analogy. Analogies can be neither
correct nor incorrect but only more or less persuasive. Reasonable persons may come to
different yet defensible conclusions about what rule should prevail.

The judicial system maintains great fidelity to the application of precedents. There are times,
however, when a court has no precedents to rely on. In these "cases of first impression," a
court may have to draw analogies to other areas of the law to justify its decision. Once
decided, this decision becomes precedential.

Appellate courts typically create precedent. The U.S. Supreme Court's main function is to
settle conflicts over legal rules and to issue decisions that either reaffirm or create precedent.
Despite the Supreme Court's reliance on precedent, it will depart from its prior decisions
when either historical conditions change or the philosophy of the court undergoes a major
shift
CONCLUSION

It is difficult to define law, but it is easy to define about law. Sources of law are an
important facet to law as it helps in giving a definition to law.

If a study is made of the legal systems in the world in modern times, it would be found
that most of the law is made by legislation. In some countries, especially in Common Law
countries, the decisions of the superior courts, or precedents, also form a source of law.
Customs, too, play a very important parting the framing of laws, and the rights and liabilities
of individuals are determined on the basis of customs, especially upon matters on which there
are no pre-existent legislation, and no precedent to cover the matter. Sometimes customs are
abrogated by the legislation, and at other times are confirmed by their decisions.

The judges, in passing their judgment, take help from numerous other sources of law
to, juristic or authoritative writings, foreign decisions, moral considerations and public
opinion. The law generally comes from these sources. Sources of law are the tools, methods
an techniques that are availed by the legal system in order to carry out its social goals and
objectives, which is to provide justice to the people, most effectively and adequately. Sources
of law concerns itself with the methodology, modes of reasoning and the interpretation of
law, and not with the problems, principles and rules of specified law The sources of Indian
law are many and varied. Many are a legacy of India being a former British colony.
Nevertheless, the past is only one aspect. Laws need constant modifications to suit changing
economic, social and political situations. At the end of the day, what counts is that the rule of
law reigns and remains supreme.

In the ultimate analysis it must be said that the advantages of precedent far outweigh its
disadvantages and it has been accepted as one of the most important sources of law in most
legal systems, particularly in U.K., U.S.A., India and Afro-Asian countries. Professor Dias
and Hughes while accepting the importance of precedents as a source of law however,
warned that it should not be stretched too far.
References

Webliography:

 www.judis.nic.in
 www.wikipedia.org
 www.lawyersclubindia.com
 www.answers.com
 www.etymonline.com
 www.aseanlawassociation.org/papers/Brunei_chp2.pdf
 web.northumbria.ac. jurisonline.in/2010/03/sources-of-law
 nuweb.northumbria.ac.uk/bedemo/Sources_of...Law/page_10.htm