Basically it is a doctrine which means "Law made by judges" & it is one of
the major sources of Law which is contributory in nature in the form of making
the new Laws.
It is a decision taken by a Court which will be a benchmark and used for future
reference in decision making by the subordinate Courts while the legal facts and
issues are exactly the same.
In the other word it is something which past decisions help to make future
Judgments passed by the higher judiciary are applicable to the same on the lower
judiciary. Which means the judgment passed by the High Court follows by the
Lower Courts, the Supreme Court judgment follows by the High Courts, Lower
Courts & the Supreme Court itself means higher division bench to lower division
All the subordinate Courts are bound to follow where the legal issues, facts
and circumstances are sufficiently similar.
Meaning & Definition:
Judicial Precedents means in general terms a behavior which is previously
adopted becomes an example or rule for subsequent cases.
For example in the case of Kesavananda Bharati the basic structure doctrine of
the Indian Constitution was propounded which is applicable as a precedent in the
case of Indira Gandhi Vs. Raj Narayan, Minerva Mills and other cases where the
facts of the case and the circumstances are subsequently similar.
It may be defined as a decision by a competent Court of justice upon a disputed
point of Law becoming not merely a guide but an authority to be followed by all
the same system until it has been overruled by a superior Court of justice or by
Enactment & Provisions:
- Judicial Precedents were enacted from 1950 after the making of the
- Article 141 of the Indian Constitution talks about decisions of the
- Article 225 of the Indian Constitution talks about decisions of High
Courts making them obligatory for their subordinate Courts.
Doctrine of Stare Decisis:
- The doctrine of "Stare Decisis" which means "to stand by what has been
- This means that judges follow the legal principles already established
in earlier cases.
- This ensures consistency in the Law and predictability.
- It's presumptions are based on the hierarchy of the Courts and the
Courts are bound to follow the Court decisions by their chronological order.
In case of an equivalent court they have persuasive value which means they
respect the decision but are not bound to follow it.
- It is 'like cases should be treated alike'.
- A rule followed or a principle applied by a competent authority under
similar facts and circumstances.
- When the judges interpret the Law by establishing new rules and
principles which are binding on lower Courts known as 'Judicial Precedents'.
Kinds of Precedents:
The word precedent means some pattern.
There are four different kinds of
precedent such as follows:
- Absolute Authoritative Precedents:
Which are binding on all the Courts. It is binding upon the judges who
interpret the Law; they can be regarded as a legal source of Law. It is a
rule of Law. For example a decision of the Supreme Court or the decision of
any superior Court's bound to follow by the subordinate Courts.
- Persuasive Precedents:
The precedents which the Courts are not bound to follow, though they may be
taken into consideration while giving character and only a historical source
of Law. It means the decision of the High Court is an authoritative
precedent within the jurisdiction of that High Court but outside the
decision of that High Court is not authoritative but only guiding or
persuasive text books and commentaries. For example, Delhi High Court
decisions are not bound to follow the Mumbai High Court; they may or may not
but can take the reference always.
- Original Precedents:
According to Salmond, which create or establish original or new rules of Law
known as original precedents. For example a creation of new Law not
previously written in the book of Law.
- Declaratory Precedents:
Which merely reiterate and apply an already existing rule of Law are known
as declaratory precedents. For example, whatever Law mentioned in the book
of Law applies as it is written.
- Conditional Authoritative Precedents:
Decisions made by the smallest bench of High Courts may or may not apply to
the same High Courts divisional bench.
Types of judicial decisions:It can be divided into two parts such as follows:
- Ratio Decidendi/ Reason of Decision:
It literally means "rules of Law or ruling or knowing the Law". Not only
bind the parties but also form the Law for the further generation. The Apex
Court furnished the various reasons on which the decision was given in a
particular case of ratio decidendi; the facts of the 2 cases, previous and
present must be identical, material and relevant; otherwise ratio decidendi
is not applicable in the subsequent case. In the case of Dharmodas Vs.
Mohori Bibee Courts held that the general principle for minor contracts is
void ab initio applied by the subordinate Courts.
- Obiter Dicta/Said by the Way:
It refers to parts of the judicial decisions which are general observations
of the judges and do not have any binding authority. Not essential for
reaching the decision. A Dictum is given by the way and binds only the
parties and does not amount to Law and hence, not bind the future
generations. However, the obitor of a higher judiciary is given due
consideration by lower Courts and has persuasive value. In the case of
Swaran Singh Lamba Vs. Union of India 1995 the Courts held the same.
Circumstances where the binding force of Precedents were challenged:
- Ignorance of statutes;
- Inconsistency between earlier decision of higher Court;
- Precedent sub silentio;
- Decision of equally divided Court;
- Erroneous decision;
- Abrogate decision.
Merits of the doctrine of Judicial Precedents:
- It was judge-made Laws. Therefore they are more practical and realistic.
- It is about scientific development in Law. It brings logical perfection
in Law in the form of the principles.
- It brings flexibility in the Law. They mold and shape the Law according
to the changed conditions and thus bring flexibility in the Law.
- Bring certainty in Law.
- Based on customs which have been a general practice in the people for a
Demerits of the doctrine of Judicial Precedents:
- A one of the great demerits of this doctrine is the development of Law
depends on the incident of motivation.
- Sometimes the conflicting decisions of superior Tribunals throw the
judgment of the lower Courts into the harms of a dilemma.
- There is a possibility of overlooking authorities if we follow the
- An extremely erroneous decision was established as Law was not being
brought before the Supreme Court.
Judicial Precedents is nothing but the process whereby judges follow previously
decided cases where the legal issues are sufficiently similar. It is true that
it helps to take decisions easily in short time periods. But there is a conflict
which makes decisions sometimes erroneous. That is why it needs to be followed
very carefully and also the superior Court's responsibility has to give a proper
outline of the decisions. Because each and every decision is directly connected
to the demands of fair justice by the people of the society.