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A COMPARATIVE STUDY OF
VARIOUS KINDS OF PRECEDENTS
Submitted to Mrs. Sreejaya Patil
Subject: Jurisprudence-I

Submitted by- Soumya Jha

Semester - VI
Section - A
Roll No-154

DATE OF SUBMISSION 4th April, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

ACKNOWLEDGEMENT
At the outset, I would like to express my earnest gratitude and sincerely thank my teacher, Mrs.
Sreejaya Patil for putting his trust in me, giving me a project topic such as this, providing me
with all the help and resources possible and also for showing his faith in me to deliver. Maam,
thank you for an opportunity to help me grow.
My gratitude also goes out to the extremely helpful and cooperative staff and administration of
HNLU for the infrastructure in the form of library and IT lab that was a source of great help for
the completion of this project.

-Soumya Jha
(Semester-VI)

TABLE OF CONTENTS

ACKNOWLEDGEMENT

02

INTRODUCTION

04

- Objective and Research Methodology

05

CHAPTERS
i.
ii.
iii.
iv.
v.

Precedent as a Source of Law

Kinds of Precedents
Merits of the doctrine of precedents
Demerits of the doctrine of precedents
Factors undermining the authority of precedents

06
08
12
13
14

CONCLUSION

16

References

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INTRODUCTION

The weight attached to precedent in every department of life is closely connected with the force
of habit, and has its root deep in human nature. That judicial precedents have exercised great
influence in all systems of law is more than probable; the feeling that a rule is morally right has
often arisen from the fact that it has long been followed as a rule; but the degree in which judicial
decisions have been openly recognized as authoritative, simply because they are judicial
decisions, has varied very greatly in different systems. Judges are everywhere largely influenced
by what has been done by themselves or their predecessors, but the theories to explain and
control such influence have been di- verse, and the development of the law has not been
unaffected by them. It may, perhaps, be of some interest to compare a few of these theories. Two
things should be borne in mind. In the first place, the functions of courts are not in practice
confined to the decision of particular causes. Either by authority expressly delegated, or of their
own motion, courts have undertaken to legislate with regard to the conduct of litigation before
themselves; they have published general rules, in the form of command or permission, setting
forth the manner in which they will proceed. The most striking example is the edict of the
Roman pretor, which became a chief instrument in the development of the Roman law. Doubtless
special cases gave rise to many of its provisions, but none the less it was in form a legislative,
not a judicial act. The Scotch Court of Sessions, in its Acts of Sederunt, assumed extensive
powers of enacting laws, and in our days governments have frequently intrusted to courts a wide
authority to make rules of procedure. All this lies outside of our present limits. Such rules are not
judicial precedents1. Further, the peculiar effect and quality of a judicial precedent as a source of
law should be noted. So far as it expresses the opinion of wise or learned men, or so far as it
expresses the opin- ion of the community, it may be a source of law; but its peculiar force as a
judicial precedent lies, not in its accordance .with philosopily or common sense; not in the fact
that it is right, not that it ought to have been made, but that it has been made. Of course the
decision of a court may unite the character of a judicial prece- dent with the character of an
expression of wise thought or of pop- ular sentiment, but often these characters are separated. To
go no farther than our own law, there is no difficulty in finding decisions standing as precedents,
at which, like the Rule in Dumpor's Case, " the profession have always wondered," or which, at
any rate, are no expression of contemporary opinion, and would never be made at the present day

1 P.209, Dr. N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011, 6 th edn.

Objective:The objective of this project is to understand the doctrine of precedents. Additionally, this project
also studies various kinds or forms of precedents. It further seeks to understand by way of a
comparative study of precedents, the various kinds of precedents.

Research Method: This doctrinal research is descriptive and analytical in nature. Secondary and Electronic data
have been largely used to gather information and data about the topic.

Books and other references as guided by the Faculty of Jurisprudence have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
referred to.
Also, footnotes have been provided wherever needed, to acknowledge the sources.

CHAPTER I

PRECEDENT AS A SOURCE OF LAW

In general English, the term precedent means, A previous instance or case which is, or may be
taken as an example of rule for subsequent cases, or by which some similar act or circumstances
may be supported or justified.
According to Gray, A precedent covers everything said or done, which furnishes a rule for
subsequent practice.2
According to Keeton, A judicial precedent is judicial to which authority has in some measure
been attached.3
According to Salmond, In loose sense it includes merely reported case law which may be cited &
followed by courts.
In strict sense, that case law which not only has a great binding authority but must also be
followed.
According to Bentham precedents are Judge made Law.
According to Austin precedents are Judiciarys Law.
In general in the judicial field, it means the guidance or authority of past decisions for future
cases. Only such decisions as lay down some new rule or principle are called judicial precedents.
The application of such judicial decisions is governed by different principles in different legal
systems. These principles are called Doctrine of Precedent. For this case to be held, first such
precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the
precedent under certain circumstances must be followed.
Thus it can be inferred that precedents are:
2 The Nature and Sources of Law
3 The Elementary Principles of Jurisprudence

Guidance or authority of past decisions for future cases.

Precedents must be reported, maybe cited and may probably be followed by courts.

Precedents must have opinio-juris.

These must be followed widely for a long time and must not violate any existing statue
law.

NATURE OF PRECEDENTS
They must be ppurely constitutive and not abrogative at all. This means that a judicial decision
can make a law but cannot alter it. Where there is a settled rule of law, It is the duty of the judges
to follow the same. They cannot substitute their opinions for the established rule of law. The
function is limited to supplying the vacancies of the legal systems, filling up with new law the
gaps that exist4.

4 P.204, Dr. N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011, 6th edn.

CHAPTER II

KINDS OF PRECEDENTS
1. Authoritative and Persuasive Precedents
According to Salmond, an authoritative precedent is one which judges must follow whether they
approve of it or not. A persuasive precedent is one which the judges are under no obligation to
follow but which they will take into consideration and to which they will attach great weight as it
seems to them to deserve.
Precedents may also be classed as authoritative, or persuasive. An authoritative precedent is that
which must be followed by the judges, whether they approve of it or not. It comes from a court
superior to the court concerned.
A persuasive precedent is one which the judges are under no obligation to follow, but which they
will take into consideration and attach as much importance as it is necessary. It has, however, no
legal claim for recognition. Authoritative precedents are rules of law, while persuasive are historical sources.
Thus a judicial precedent of the Supreme Court of India is authoritative in relation to the High
Courts and the other inferior courts in India.
A judicial precedent of the Allahabad High Court is authoritative in relation to other subordinate
courts in the Uttar Pradesh. A decision of Calcutta or Bombay High Court in relation to the
Allahabad High Court is only persuasive.
Authoritative precedents again are of two kinds: (i) absolute, and (ii) conditional. By absolute we
mean the decision is absolutely binding and must be followed without question however
erroneous it may appear to be.
Absolute authority exists in three cases in England: (1) Every court is absolutely bound by the
decisions of courts superior to itself; (2) The House of Lords is absolutely bound by its own

decisions; and (3) The Court of appeal is bound by its own decisions and those of old courts of
coordinate authority.
In Attorney General v. Dean and Canon of Windsor5, Lord Campbell observed that observations
made by the members of the house beyond the ratio decidendi which is propounded and acted
upon in giving judgement, although they may be entitled to respect, are only to be followed in so
far as they may be considered agreeable to sound reason and to prior authorities.

2. Absolute and Conditional Precedents

Authoritative precedents are of two kinds: absolute and conditional. In the case of absolutely
authoritative precedents, they have to be followed by the judges even if they do not approve of
them. They are entitled to implicit obedience. In case of conditional authoritative precedents, the
courts can disregard them under certain circumstances. Ordinarily, they are binding, but under
special circumstances they can be disregarded. The court is entitled to do so, if the decision is a
wrong one. The decision must be contrary to law and reason. It is contrary to law when there is
already in existence an established rule of law on the point and the decision does not follow it.
When a law on a point is already settled, the only duty of the judge is to declare it and apply it.
However, when the law is not settled, the only duty of the judge is to declare and apply it. In the
case of Ningappa v. Emperor6, it was held that a decision of a full bench, until overruled by the
privy council is absolutely authoritative.
In K.C. Nambiar v. State of Madras7, it was observed that a single judge is bound by a decision of
a division bench exercising appellate jurisdiction. If there is a conflict on benchs decisions, he
should refer the case to a bench of two judges who may refer it to a full bench.

3. Declaratory and Original Precedents

An original precedent is one which creates and applies a new rule. It creates a new rule. The
number of original precedents is small. Original precedents develop in law in the country. It is a
5 Attorney General v. Dean and Canon of Windsor, (1860) 8 HLC 369
6 Ningappa v. Emperor, 1941 Bom 408
7 K.C. Nambiar v. State of Madras, AIR 1953 Mad 351

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new law created and followed in the future. It is greater than declaratory precedents. There is a
heavy burden and task mental tension on the judge who pronounces original precedents to
interpret the new situations. In Bhimsingh vs. JK Government8 in this habeas corpus case
Bhimsingh, an M.L.A. was detained by JK police. The Supreme Court ordered State Government
to release him and to pay Rs. 50,000/- towards compensation. It is the best example of original
precedent. Further, Ashby vs. White9 case is an example of original precedent for injuria sine
damnum
On the other hand, a declaratory precedent is one which is merely the application of an already
existing rule of law. It follows it. Because it is already law. The number of declaratory percents is
more numerous. They merely follow the original precedents. Declaratory precedent is already a
declaratory law and follows in present and future. It is also a good source of law. However, when
it is compared with original precedent. It comes second to it.
In the case of Bhavasagar vs. State of A.P10., the High Court of Andhra Pradesh followed the rule
enunciated in Bhimsinghs case. Bhavsagar, a merchant in Hyderabad, was arrested by police
illegally. Disposing the Habeas Corpus petition, the High Court ordered the state to release
Bhavsagar and to pay Rs. 20,000/- towards the compensation. It is the best example for the
declaratory precedent.

Stare Decisis
Stare decisis (Latin: [stare detts1isis], Anglicisation: [ste dsass]) is the legal principle by
which judges are obliged to respect the precedents established by prior decisions. The words
originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta
movere: to stand by decisions and not disturb the undisturbed. In a legal context, this is
understood to mean that courts should generally abide by precedents and not disturb settled
matters.
8 Bhim Singh v. Jammu and Kashmir Government, AIR 1986 SC 494
9 Ashby v. White, (1703) 92 ER 126
10 Bhavasagar v. State of A.P.

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This doctrine is basically a requirement that a Court must follow the rules established by a Court
above it.
The doctrine that holdings have binding precedence value is not valid within most civil
law jurisdictions as it is generally understood that this principle interferes with the right
of judges to interpret law and the right of the legislature to make law. Most such systems,
however, recognize the concept of jurisprudence constante, which argues that even though
judges are independent, they should judge in a predictable and non-chaotic manner. Therefore,
judges right to interpret law does not preclude the adoption of a small number of selected
binding case laws.

Ratio Decidendi and Obiter Dictum

There are cases which involve questions which admit of being answered on principles. Such
principles are deduced by way of abstraction of the material facts of the case eliminating the
immaterial elements. The principle that comes out as a result of such case is not applicable only
to that case, but to cases also which are similar to the decided case in their essential features.
This principle is called Ratio Decidendi. The issues which need determination of no general
principles are answered on the circumstances of the particular case and lay down no principles of
general application11. These are called Obiter Dictum. It is the Ratio Decidendi of a case that is
binding and not the Obiter Dictum that has a binding effect of a Precedent. But it is for the judge
to determine the Ratio Decidendi of the decision and to apply it on the case which he is going to
decide. This gives an opportunity to him to mould the law according to the changed conditions
by laying emphasis on one or the other point.

11 P.223, Dr. N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011,
6th edn.

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CHAPTER III

MERITS OF THE DOCTRINE OF PRECEDENTS

It shows respect to one ancestors opinion. Eminent jurists like Coke and Blackstone have
supported the doctrine on this ground. The say that there are always some reasons behind these
opinions, we may or may not understand them.
Precedents are based on customs, and therefore, they should be followed. Courts follow them
because these judicial decisions are the principal and most authoritative evidence that can be
given of the existence of such a custom as shall form a part of the common law.
As a matter of great convenience it is necessary that a question once decided should be settled
and should not be subject to re-argument in every case in which it arises. It will save labour of
the judges and the lawyers.
Precedents bring certainty in law. If the courts do not follow precedents and the judges start
deciding and determining issues every time afresh without having regard to the previous
decisions on the point, the law would become the most uncertain.
Precedents bring flexibility to law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mould and shape the law according to the
changed conditions and thus bring flexibility to law12.

12 P.124, Dr.,N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011,
6th edn.

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Precedents are Judge made law. Therefore, they are more practical. They are based on cases. It is
not like statue law which is based on a priori theory. The law develops through precedents
according to actual cases13.
Precedents bring scientific development to law. In a case Baron Parke observed It appears to me
to be great importance to keep the principle of decision steadily in view, not merely for the
determination of the particular case, but for the interest of law as a science.
Precedents guide judges and consequently, they are prevented from committing errors which
they would have committed in the absence of precedents. Following precedents judges are
prevented from any prejudice and partially because precedents are binding on them. By deciding
cases on established principles, the confidence of the people on the judiciary is strengthened.
As a matter of policy, decisions, once made on principal should not be departed from in ordinary
course.

CHAPTER IV

DEMERITS OF THE DOCTRINE OF PRECEDENTS

There is always a possibility of overlooking authorities. The vastly increasing number of the
cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all
the relevant authorities on the very point.
Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the
horns of a dilemma. The courts faced with what an English judge called complete fog of
authorities.14
A great demerit of the doctrine of precedent is that the development of the law depends on the
incidents of litigation. Sometimes, most important points may remain unjudicated because
nobody brought action upon them.
13 Ibid.
14 P.67, Dr.,N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011, 6th edn.

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A very grave demerit or rather an anomaly of the doctrine of precedent is that, sometimes it is
extremely erroneous decision is established as law due to not being brought before a superior
court.
.

CHAPTER V

FACTORS UNDERMINING THE AUTHORITY OF

PRECEDENTS
1. Abrogated decisions A decision ceases to be binding if a statute or statutory rule
inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher
court.
2. Same decision on appeal is reversed by the appellate court. 24th amendment of Indian
Constitution was passed to nullify the decision of the SC in the case of Golaknath.
3. Affirmation and Reversal on a Different Ground A decision is affirmed or reversed on
appeal on a different point.15

15 http://www.lawctopus.com/academike/precedents-as-a-source-of-law/, Retreived on 31st March 2016

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4. Ignorance of Statute 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. A court may know of
existence of the statute or rule and yet not appreciate in the matter in hand. Such a
mistake also vitiates the decision. Even a lower court can refuse to follow a precedent on
this ground.
5. Inconsistency with Earlier Decision of Higher Court A precedent is not binding if the
court that decided it overlooked an inconsistent decision of a high court. High courts
cannot ignore decision of Supreme Court of India.
6. Inconsistency with Earlier Decision of Same Rank A court is not bound by its own
previous decisions that are in conflict with one another. The court of appeal and other
courts are free to choose between conflicting decisions, even though this might amount to
preferring an earlier decision to a later decision.16
7. Precedent sub silentio or not fully argued When a point is not involved in a decision is
not taken notice of and is not argued by a counsel, the court may decide in favour of one
party, whereas if all the points had been put forth, the decision in favour of one party.
Hence, such a rule is not an authority on the point which had not been argued and this
point is said to pass sub silentio. Binding force of a precedent does not depend on
whether a particular argument was considered therein or not, provided the point with
reference to which an argument was subsequently advanced was actually decided by the
SC.

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CONCLUSION
From the brief discussion above about the legal value of precedents we can clearly infer that these play a
very important role in filling up the lacunas in law and the various statues. These also help in the
upholding of customs that influence the region thereby making decisions morally acceptable for the
people. This thereby increases their faith in the judiciary which helps in legal development. These
moreover being a sort of respect for the earlier views of various renowned jurists, helps in upholding the
principle of stare decisis. It is a matter of great convenience it is necessary that a question once decided
should be settled and should not be subject to re-argument in every case in which it arises. It will save

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labour of the judges and the lawyers. This way it saves lots of time for the judiciary which is a real
challenge in the present day legal system with so many cases still pending for many years now. Precedents
bring certainty in law. If the courts do not follow precedents and the judges start deciding and determining
issues every time afresh without having regard to the previous decisions on the point, the law would
become the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are
influenced by social, economic and many other values of their age. They mould and shape the law
according to the changed conditions and thus bring flexibility to law.

References:Bibliography
-

Dr.,N.V.Paranjape, Jurisprudence and Legal theory, central law agency, Allahabad,2011,

6th edn.
Scott Brewer, The Philosophy of Legal Reasoning, Rouletdge, 1998, 3rd edn.
Lakshminath, A. Criminal Justice in India: Primitivism to post Modernism 48, JILI, (2006)

V.D.Mahajan, Jurisprudence & Legal Theory ,Eastern Book Company, Lucknow,2012,

5th Edition
Ahmad Siddique, Criminology, Lucknow: Eastern Book Company, 2005, 5th Ed.

Skorupski, John, 1989. John Stuart Mill, London: Routledge & Kegan Paul.

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Schofield, Philip, 2006. Utility and Democracy: the Political Thought of Jeremy Bentham,
Oxford: Oxford University Press.

Webliography
-

http://www.lawctopus.com/academike/precedents-as-a-source-of-law/
http://www.lawyersclubindia.com/articles/Judicial-Precedents-3737.asp#.Vv9DKtJ97IW
www.manupatra.co.in
www.westlawindia.in