Precedent is the pillar of the common law procedure. It is the key process by
which results are achieved by common law. The doctrine of precedents is centred
on the ratio decidendi and obiter dictum. The purpose my project is to tell why
precedents important in the legal system and what can be more done to furnish
it, what does different juristics say about precedents. How stare decisis is
different from precedents, what are their doctrines.
Kinds of precedents are an authoritative precedent, persuasive precedent,
original precedent, declaratory precedent and what are their uses and when they
are applied. I have discussed what is the difference between ratio decidendi and
obiter dicta with the case of Donoghue v. Stevenson
There is a difference between res judicata and precedents, res judicata is only
that if once the decision is given the parties can't come up with the same
issues again the court. But there are many challenges, issues to precedents as
why court decision should be considered as law though if it found that it was
erroneous. So there are four justifications to its consistency, expectations,
lawmaking, replicability these four justifications are formed on the basis that
to keep people's expectations on the court, they have to state decisions which
court declared in the past decisions of the similar facts. But there are
exceptions also, the court is allowed to depart from a past decision if it is
not suitable in today's world.
There many challenges to precedents there is no authority that they will correct
because it may happen that at that point of the time it may be the best
possible interpretation at that point of time according to morality that exists
in the society so referring this there are so many challenges, issue to the
precedents and also disadvantages like it sometimes become so complex that judge
take too much time to understand in what context the earlier judges wrote this
decision. Also, we always can't satisfy the people and meet their expectations.
However, the doctrines are much criticized for the simple fact that, in
practice, every precedent could be interpreted both ways to serve the interests
of the adversary lawyers. And therefore, it is difficult to point out what legal
principle does any precedent stand for.  Also, it doesn't create laws for the
future as we refer to past decisions. But there are advantages also as not
always but there are chances of fairness, always there is space for new
precedent as there will be cases which will be heard the first time in the
history, precedent provides guidance, saves time.
Precedents are followed for a long time and consider that they should not be
violated. The purpose of this project, is to examine the various possible
explanations for such constraint, and to advance several arguments which might
facilitate a better understanding of the nature and authority of precedent.
The literal meaning of Precedent
The text of Mahabharata says ‘that path is the right path which has been
followed by virtuous men.’ The concept of precedent is based on this theory. The
edifice of the common law is made up of judicial decisions. The doctrine of
precedents grew in England in the absence of codified laws. The rule of law
requires not overturning precedents too often. Aristotle said the habit of
lightly changing the laws is an evil .
In common law legal systems, a precedent or authority is a legal case that
establishes a principle or rule. This principle or rule is then used by the
court or other judicial bodies use when deciding later cases with similar issues
or facts.  It is mainly the application and recognition of new rules by the
courts. Precedents are presented as an authority by the court. The English
doctrine of precedents is that the House of Lords is bound by its own
A precedent is a past event – in law the event is nearly always a decision
–which serves as a guide for present action. Not all past events are
precedents. Even when there is no precedent to guide a decision, the notion
of precedent – awareness, that is, that what we do now may become a precedent –
might still influence the decision-making process. The Supreme Court said that
case which doesn’t have reasoning and issues cannot be deemed to be a law
declared to have a binding effect as is contemplated by Article 141 of the
Experts/Juristic Definitions of Precedents
James P. Gray- Precedent covers everything said or done, which furnishes a rule
for subsequent practice.
 Jeremy Bentham - precedents are ‘Judge made
.’ Robert Keeton - ‘A judicial precedent is judicial to which authority
has in some measure has been attached.’ John Salmond - ‘Precedents a
judicial decision which contains in itself a principle’ Ronald Dworkin –
‘Precedent is a rule of law established for the first time by a court for a
particular type of case and thereafter referred to in deciding similar
Operative/Own definition of precedent
Precedents are an established source of law. They are sources which can be used
in further cases with similar facts. They can be very effective in deciding
cases of subsequent nature. There are many cases in which no established
principles and rules are there, so when the case comes at that time only
principles are decided these are also known as ‘hard cases’ so these cases give
space to new precedents. They are formed by judge.
Doctrines of precedents and stare decisis
The doctrine of precedent is a common law doctrine where judges are required to
decide cases based on the judgment that has already decided by the courts placed
higher in the hierarchy of courts.  The doctrine of stare decisis is a rule
of self- discipline developed gradually by the common-law courts, where the
judges seldom disturb what is already decided. So, all the lower courts in the
country are bound by the decision of a higher court. Even the coordinate bench
of the Supreme Court is bound by another coordinate bench of Supreme Court.
Stare decisis is a principle of law that has been settled by a series of cases
and should generally be followed by all other courts.
Article 141 of the
Indian constitution says the SC decision is binding on all the courts if the
case has similar facts and principles. Till 17th century there was no concept of
stare decisis but in 1833 one case came into picture Mirehouse v. Rennell
this case judge said that you should start recording the cases so that lower
courts can take advantage. In Bengal Immunity Co. Ltd. v. the State of
, it was aid that ‘expression of all courts' in article 141 does it
means that SC is also included in all courts, no SC is not included it can
deviate from its decisions.
The doctrines of precedents follows ancient decisions and extend them to
 The doctrine of precedents is not new to the country
like India, wherein Dharmashastra it is established that whatever is written in
our books and whatever the traditions and customs they should be followed
unquestionably. By applying varieties of creative judicial techniques judges
make the judicial precedent ineffective.
Precedents are neither modern
legislation nor as old as customs. Between 1898 and 1966, the House of Lords
were bound to their own previous decisions, making the law consistent due to
rulings made in London Street Tramways v London County Council
1966, the Lord Chancellor issued a Practice Statement, stating, the rigid
adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law .
Even the house of lords is not bound to their precedents they can change their
decision. When deciding cases, there is a test of subjective recklessness
that is relied upon. This is where certain aspects of particular cases are taken
in the case R v. Caldwell
, the defendant was sacked from the hotel, in
trauma he drank and set fire in the hotel intending to cause damage to the
property but many customers were sleeping inside. So he was charged with
endangering to human life and arson and he can’t take the defence of
recklessness and no objective test.
On the other hand in the case of R v. G and
another  two children one 11 years and another 12 years old were camping on
the backside of a shop, they burnt some newspaper they left thinking that fire
will go itself but fire spread and shop was burnt. The court stated them not
guilty in this case court took the objective test as the damage happened, it was
not intended and it was decided that their infancy should be taken into account.
So here precedents don't work as in first case court doesn't take objectivity
test and in other case, it doesn't. Domestic precedents remain ‘binding’ in a
Convention context with a partial exception,
and subsequent decisions have
interpreted and applied this rule
So, Stare decisis is the doctrine that obligates courts to look to precedent
when making their decisions.
Kinds of Precedents:
Ratio Decidendi and Obiter Dictum
Authoritative precedents: These are those precedents which are binding
on all the courts. These precedents are binding on judges who interpret the
law and whether they approve it or no, these are regarded as a source of
law. For example decision of the Supreme court.
Authoritative precedents are
of two types:
- Absolute precedents:
These precedents are binding there are no choices, judges have to follow it.
- Conditional precedents:
these are not absolute if judges want they cannot follow them but in certain
circumstances. But generally, they are binding.
Persuasive precedents:They do not have any legal force or effect in
themselves. They are not bound to follow if judges want they can use these
as a reference and take into consideration while giving decisions. These
precedents are of guiding character and only a historical source of law.
Persuasive precedents can help to establish laws but giving some authority
from the past.
Decisions of one high court only act as a guide or persuasive as one HC decision
is not binding on another HC decision so they may take reference from these
decisions but there is no obligation that they have to state the same decision
as given by previous HC. For example foreign judgments, authoritative textbooks
Original precedents: According to Salmond these precedents establish or
create new law. It is evidence for the law of the future. An original precedent
is made when there is no previous judicial decision on a point of law. When the
court has to form an original precedent, a judge will come to their decision by
Declaratory precedents: These precedents apply already existing rules.
It is considered a good source of law.
Ratio means the reason or the essence of the decision. Decidendi means decision.
The doctrine of precedents works on ratio decidendi. Ratio decidendi is a legal
rule derived from, and consistent with, those parts of legal reasoning within a
judgment on which the outcome of the case depends.  There can be multiple
ratio decidendi or multiple rationes decidendi produced by a single judicial
decision. In it, we consider on what basis and principles judges gave a
decision. To have a correct perception of the ratio decidendi of a case it is
necessary to have a close look at the structure of the judgment itself. It is
not everything said by a judge which has the force of a precedent. 
Obiter means something made or said by a judge in passing. Dictum means
pronouncement, proclamation. If the court thinks that an issue does not arise,
then any observation made concerning such an issue would be purely obiter
The obiter only has persuasive value. It is just an observation if
want can be considered, just an opinion. An obiter dictum is a remark or
observation made by a judge that, although included in the body of the court’s
opinion, does not form a necessary part of the court’s decision. Unlike the rationes decidendi, the obiter dicta are not the subject of the judicial
decision, even if they happen to be correct statements of law.
the court dismisses the case by saying that it is out of the jurisdiction, but
if the court offers an opinion based on the merits of the case it will be just
obiter dictum. In reaching decisions court sometimes quote passages of obiter
dicta found in the texts of the opinions from prior cases, with or without
acknowledging the quoted passage's status as obiter dicta.
If in a decision court gives two reasons then it is not like that you have to
pick one and leave another and also you can’t give preference. A judge sometimes
doesn't convince from some reasons cogency, so to give them the authority of
precedent but also want to them to be included, so that they can act as
guidance. This is a matter only the judge who is writing can only understand the
literal meaning, that in what context the judge wrote this.
Donoghue v. Stevenson
The facts of the case are two ladies went to a restaurant where they ordered a
ginger beer bottle with ice-cream float. After consuming half of the drink when
they poured more beer, they found a decomposed snail. After seeing this snail
Mrs Donoghue suffered severe shock and gastroenteritis. So the main question is
what was the ratio and obiter in this case by the House of Lords.
The ratio, in this case, was the duty of care
principle, and what was said by
Lord Atkin manufacturer’s liability to the ultimate consumer for an injurious
product in circumstances specified did owe a duty of care to the
 he said that manufacturer owes a duty of care to the consumer
and there was negligence on the part of the manufacturer.
Obiter of the case was neighbourhood principle
they said that it may not only
about manufacturer but there can be a lot of examples for people who owe a duty
of care. For example in doctor and patient. So, ‘neighbourhood principle' which
evolved was only persuasive not binding.
So in the ratio, you have to tell on what reasons you came to the decisions and
while pronouncing that decision whatever comes in passing or opinions are just
The distinction between Precedent and Res Judicata
Res meaning is ‘the thing’ (the subject of the matter) and judicata means judged
so it means a subject matter which is already judged. Once a lawsuit is
decided, the litigant parties are barred from raising the same issue again in
the courts (unless material new evidence has become available). They are also
barred from raising another issue arising from the same claim or transaction (or
a series of claims or transactions) that could have been but was not raised in
the decided suit. 
Types of Jurisdiction
Supreme Court has two types of jurisdiction:
- Appellate jurisdiction:
In this jurisdiction, SC has the power to
reverse the decision of the lower court or the lower bench. This jurisdiction
can be invoked in certain circumstance and that also in the corrective stage.
And SC has limited power.
- Inherent jurisdiction:
In this SC is not limited in this jurisdiction it can change the view of
the law in an earlier judgment. But the modifications will not affect
the rights and liabilities of the parties, which was decided in previous
judgment. After the judgment, the SC cannot modify the rights and
liabilities of the parties adjudicated upon . This is known as res judicata.
However, view of the law
or ratio decidendi is still can be challenged as a
precedent. Ratio decidendi serves the question of law
what all substantial
question has to be covered and does it cover any need of future. And how that
substantial question of law developed as a case by case evaluation. But some
precedents cannot be applied to all the cases known as like hard cases
cases are those cases which don't have fix rule in law they change according to
the situation of the society.
On the other hand, the ratio decidendi of a case
is the principle of law which decided the dispute in the facts of the case and,
therefore, the dispute can not be relied on in the facts of the case and,
therefore, a decision cannot be relied on in support of a proposal which it did
Justification of Precedents
Mostly question arises on the justification of stare decisis in which later
courts are bound to stand by the decision of the upper court. It is not the
judiciary who have to make law but it is the legislator who makes law,
judiciary's work is to only apply the law.
The question also arises that there
are no legislative foundations of contract, torts etc. and in these decisions of
courts are based on law. The modern legal system works on court. Civil wrongs
are mainly based on five articles and the judges need to cite one of these
articles in their judgments. If not then, this area is partly constituted by
judge-made law. Before any question of overruling a precedent arises, the
principle must be formulated, not from the opinion, not from headnotes, not from
digests, not from textbooks, but the actual decision upon the material
In common law countries, it is required to follow the stare decisis of earlier
courts even though they decided wrongly.
The doctrine of precedent thus raises two justificatory issues:
Arguments responding to these issues are based upon considerations of:
- Why treat court decisions as partly constituting the law?
- Why require later courts to follow flawed decisions of earlier
Advantages of Precedents
consistency we can talk about the fairness that if two cases have similar
facts and still, you deviate from the earlier decision and give a different
decision, so there can be a challenge that though there are similar facts
then why different decision and there will be inconsistency. Also, we can't
change the earlier decision as it is late so coming decision-makers must
take an earlier the decision as precedent. If the decision is legitimate and
courts have authority over the system then it will be impossible to treat
one party less favourably.
There are also exceptions to consistency suppose laws are changed and principles
are different in society or that decision is overruled.
If similar facts case has been decided earlier then people have expectations
that if similar facts will come before the court then the court will give
the same decision and according to that parties will prepare their cases.
And if the court gives a different decision then people will not believe in
the legal system. So, it will be better for the court to give the same
decision as given in the earlier case thought it was wrong.
The problem with the precedent is that it suffers from a type of
circularity it is an only expectation that it will be followed in future but
it creates no entitlement. It is good to follow previous decisions if there are
good reasons to follow it.
it is important for decision-makers to interpret
properly the facts of the case and understand the merits of the case. Replicability means that decisions are known beforehand then it will be like you
are guided by law.
Under certain conditions, lower courts should be permitted to depart from
greater court choices where their opinion is those previous choices were morally
unwanted. And this gives preference that lower courts can overrule the decision.
law-making power should be given in the hands of the judiciary as they may
add some provisions which are required in the current society as they are
the ones who deal with cases every day so they understand more than what is
the requirements and what could be applicable in the present scenario.
But the argument stays mainly on equality and replicability  that if there
will be replicability then people are said to be guided by law and the law will
be unpredictable and we will not apply the same principles and give the decision
though it is wrong, which we applied in the previous case with similar facts
then people will criticize, so widening law-making by the judiciary will help in
reducing this conflict and we can give the correct decision.
- Justice, certainty, efficiency and predictability – It avoids
uncertainty because no differing decisions will be there. Justice, fairness
and some predictability will be there as we can be assured that like cases
be treated alike. And also lawyers can advise their client properly.
- Flexibility – Society is changing and this should be reflected in our
legal system. The apex court of any country can depart form their decision
whenever they feel the need and this provides flexibility. As what seemed to
be coherent with society.
- New precedent – As society changes according to that new law will be
framed and new disputes will arise in the society and will come up with the
new cases which will be heard for the first time, so their chances to set
the principles and come up with the new precedent.
- Save time – Precedents save time because judges don't have to solve the
same legal principle again. It can also reduce the crime rate in the country
as people know what can be the consequences of this act.
- Fairness – If the case has similar facts and still no precedent is
applied then the person will not feel fair. We need judges to follow
judicial precedent because when the law is consistent, then it gives future
victims a chance for protection. 
- Prevent mistakes – when mistakes are committed while giving decisions
then people understand that court committed mistake and outcome should be
different, when people have this picture in their mind it forces the
judiciary to adapt correct method and give correct decisions.
Disadvantages of precedents
- Complexity and volume – Several thousand law reports and more being
added. The internet is helpful but there is now a huge amount of case law
online. Judgments can be very lengthy and sometimes the ratio is difficult
- The slowness of growth - Some areas of law are unclear and need urgent
reform and reform can only happen if a suitable case comes up before the
courts. And also Supreme Court here fewer cases then trial courts of the
- Retrospective in effect – Laws are retrospective that supposes if the
new law is made and you can be liable under the new law but when you
committed a crime you were not liable under the old law. So, this problem
can be faced by the judge as to when the precedent is made a particular act
may or may not be a crime but now it is different from what it was. So, we
can't apply the same principles.
- Uncertainty – Unless the final ruling is made in a case, the decision of
any given case will remain undefined. Many judges want to deviate from the
precedent because they find many flaws in it but they can't as it is set by
the upper court.
- Forces system to look backwards instead of looking in future – what we
have to look is that situation at that time when the precedent was
established was different than today's world and that of future so why we
prefer the rules and standards set at that time because they can't fulfil the guidelines of
- Judicial precedents can create more applicable decisions for a case than
is necessary – If so, many sources are there, then judges, lawyers will
likely to get confused as there will be no firm answers.
Precedents of High Court
As we all know that precedents of Supreme Court are binding on all other courts
of the country but is it the same case with High Court.
High Court: Single bench, Division bench, and Full bench
- Decisions of High Courts are binding on all the lower courts, but the
decision of one High Court is merely persuasive on another high court.
Because the High Court have different jurisdiction.
- The decision of larger the bench is binding on the smaller bench of same
- Decisions of one High Court is persuasive
- Supreme Court decisions are binding under article 141.
- The decisions of the High Court is binding on the Tribunals under its
superintendence throughout the territories concerning which it exercises
jurisdiction. It does not extend beyond its territorial jurisdiction.
Challenges to precedents
Morality and principles changes according to time and society like in the U.S.A
at some point of time slavery
was established principle and also in India
an act in which the wife immolated herself after husband's death was
considered to be quite courageous but afterwards due to its negative aspects it
was banned in India. Why did this happen because at that point of time there
were reasons to perform sati it was considered as the closure of the marriage
and dutiful wife following her husband afterlife but as time passed it became a
forceful practice and also society changed due to which sati was banned.
the same case in precedent when precedents establish and whatever principles are
laid down that may be the best possible interpretation of the statue at that
time and whatever the situation was there. if it is found that the former
decision is manifestly absurd or unjust, it is declared, not that such a
sentence was bad law, but that it was not law; that is, not the established
custom of the realm.
We can follow precedents but they should not be
strictly followed that we get a chance to interpret them only once, because
these days are different from past days. But precedents also act as guidance as
they give directions, that what to follow and what all rules can be applied if
similar facts, they also save time but I think they sometimes take more time as
we lawyers and judges have to find that why these rules, principles are applied
what are the reasons behind this because there may be conflicting ideas in the
mind of judges. But whatever the decision should be it should be coherent.
The Supreme Court in Parsaraja Manikyala Rao v. State of A.P.
, held that
each criminal case depends on its facts. Thus, one should avoid the temptation
to decide cases by matching the facts of one case against the facts of the
other. To render speedy and effective justice, it is required to avoid the
tendency to refer to and rely upon precedents to arrive at findings of fact in
The researcher wants to conclude that some or other way precedent is overruled
because morality changes according to society, so courts have to change their
interpretation according to what morality exist in society. precedents can be
strictly binding and give too much weight to domestic precedents that are
inconsistent with subsequent decisions precedents can be strictly binding and
gives too much weight to domestic precedents that are inconsistent with
Precedents works on the doctrine of stare decisis, later
judges have to stand by previous decisions in similar facts. And also, parties
can't come to the court with the same issue according to the doctrine of res
judicata. Many times, the court also has to state a decision against society's
morality based on law.
It is not always good to adhere to the precedents, though there are similar
facts because in that way the law can be predicted and parties can decide their
side and court may not form new principles. Also, there are chances of wrongful
conviction as what was a crime at that time, is not crime today. And if judges
have conflicting ideas and later judge is not convinced by the reason gave by
the earlier judges, still, he has to apply the same principles because
precedents are binding.
As every coin has two sides, precedent saves time and
they are effective and lawyers get proper time to guide their clients and make
them understand their case and what do they have to speak in courts. Precedents
are helpful when later judges are confused, they refer to the previous decisions
with similar facts but still the same case if we will refer back the situation
was different so there are both positive and negative sides.
- Donoghue v. Stevenson,  UKHL 100
- A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 49.
- Justice Dr B S Chauhan, Law of Precedent, 2018, pg. 1.
- https://www.law.cornell.edu, (Visited on September 7, 2019).
- Justice Nagendra Kumar Jain, Law of Precedents, 2018, p. 3.
- John Hanna, The Role of Precedent in Judicial Decision, Vol. 2, 1957, p.
- Neil Duxbury, The nature and authority of precedents, 1st ed. 2008, p.
- Justice Dr B S Chauhan, Law of Precedent, 2018, p. 2.
- John Hanna , The Role of Precedent in Judicial Decision, Vol. 2 1957, p.
- Frederick N. Judson, A Modern View of the Law Reforms of Jeremy Bentham,
Vol. 10, 1910, p. 41.
- Stephen Burton, Judging in Good Faith, Vol. 17, 1998, p. 204.
- Pradyumna K. Tripathi, Foreign Precedents and Constitutional Law, Vol.
57 1957, p. 320.
- Ronald Dworkin, Hard Cases, Vol. 88 1975, p. 1058.
- Supra note 2.
- Article 141, 38014.
- Mirehouse v. Rennell, 1 Cl & Fin 527.
- Bengal Immunity Co. Ltd. v. the State of Bihar, AIR 1953 Pat 87, 1953
(1) BLJR 48.
- A Lakshminath, Judicial process and precedent, 4th ed. 2016, p. 53.
- London Street Tramways v London County Council ,  AC 375,
 UKHL 1.
- R v. Caldwell, 1 All ER 961
- R v. G and another, UKHL 50,  1 AC 1034.
- Shaun D Pattinson, The Human Rights Act and the Doctrine of Precedent,
2015, p. 11.
- https://study.com, (Visited on September 10, 2019).
- Black's Law Dictionary, 5th ed. 1979, p. 1135.
- A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 131.
- Ibid, p. 132.
- Ibid, p. 135.
- http://www.businessdictionary.com, (Visited on September 8, 2019)
- A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 155.
- John Hanna, The Role of Precedent in Judicial Decision, Vol. 2, 1957, p.
- https://plato.stanford.edu, (Visited on September 15, 2019).
- Supra note 30
- https://connectusfund.org, (Visited on September 21, 2019)
- https://indiankanoon.org, (Visited on September 23, 2019)
- Neil Duxbury, Nature of the precedents, 1st ed. 2008, p. 25
- Parsaraja Manikyala Rao v. State of A.P, AIR 2004 SC 132
- Justice Dr B S Chauhan, Law of Precedent, 2018, p. 15