We have given set of principles in the form of laws, statutes, ordinances etc.
But sometimes a conduct may seem to satisfy language of any law but at the same
time it may differ in the context in which the law is drafted by drafters. If
the judge does not find any law appropriate in a particular situation of the
case then he looks to develop his own thoughts on the situation and delivers his
judgement taking into account the scenario of the case which is different from
the law of the land and in which it will be inappropriate to apply that law.
These decisions given by the court are called Precedents and are considered by
not only Supreme Court itself but also by lower courts while analysing the cases
of same stature. Doctrine of Stare Decisis states that the decisions of the
Supreme Court are binding to lower courts.
One thing that is good about
precedent is the certainty. When judgements are delivered only through
interpretation of law, several meanings could be derived. It means there is lot
of uncertainty and each judge might start on same note end up at different note.
During ancient time it was said to follow the path of your elders that may be
interpreted as one of the basis of doctrine of precedent. Precedent is one of
the most important sources of law. The Apex Court, when analyses certain case
and establishes principles through analysis is binding on lower courts and
tribunals while dealing with cases based on similar facts. However Supreme Court
may deviate from its judgement of the previous cases and may deliver completely
This may happen because of the change in approach of judge
and how he interprets law. With change in time, approach also changes and cases
with new issues arise that are difficult to tackle with old laws and precedents.
Hence new decisions are delivered by the Supreme Court. Some of these decisions
become landmark judgements and are often cited when required.
These Precedents should be published for the use of Courts, legal researchers,
advocates, general public etc. Because apart from the written laws, these play
very vital role in deciding the decision in any case. Most importantly in trial
court, where judges not only look into what law says but also see what the Apex
Court has said in this regard and after considering all these aspects they frame
Precedents make easier to decide the outcome of the case since the courts not
only have laws but also the previous decisions which may be useful and saves
time while deciding any complex situation. Since every time court gets different
kind of situation which may be more complex than the previous one so court have
a choice to apply rule and precedents and if even then it is not possible to get
appropriate conclusion then higher court, that setup precedent earlier, may
deviate from its previous view and deliver judgement that it suitable in the
Meaning, Nature and Definition
There is a Latin maxim called Stare Decisis which means judges should respect
the precedent formulated by The Apex Court. The decision of the lower court is
not binding on the higher courts and may be overturned by them. But decisions of
the higher courts are binding on all lower courts. However, if any lower court
gives any judgement then they are not binding on higher courts. But it may be
considered as good suggestions and higher court may consider them if they have
very strong reason to be believed.
Precedents are based on the different experiences which are faced while
analysing any case. Legislation makes law after evaluating the current situation
then also one cannot expect that such laws will be compatible to solve each and
every case. There will always be loopholes that are need to be addressed through
judicial decisions favouring the current case situation.
decisions will not only be helpful in such case but also in future cases.
Precedents will not only help in removing the errors in law but also help the
legislative body to make laws taking into consideration the judicial precedents
delivered by The Supreme Court. Precedents help in finding the correct balance
between complex modern issues and law.
However, there is no rule that the Apex Court will have to bind itself through
previously delivered judgement. It may overrule its previous wording if that
contains some erroneous interpretation of the law. The same thing is said under
Article 137 of the Indian Constitution, where The Apex Court is given the
authority to review its own judgement or order.
Sometimes the laws in force
which were enacted decades ago are now looked upon as not favouring the
principles of Equity, Justice and Good Conscience are first replaced through
Precedents and then, if required, through legislative action. However, it is not
necessary that every time while making laws these principles should be adhered
But one thing that has not changed over the years is the dependency on the
precedents when law is not interpretable in the manner that is required to solve
the complex case scenario and this shows how the priorities of the courts has
changed over the years. This is one of the main reasons why Precedents serve as
an important source of law.
However, judges cannot replace their wordings with already established law
because if the law is already codified and is capable providing answers to all
the complex cases then it should be used. But there is always a scope for the
upgrading the existing laws to meet the requirements of modern issues. In
earlier times, when only customs were main source of law and if people were not
following their customs then appropriate measures were taken. But since the time
we started following codified law, it became the duty of the judges to follow
the law as given.
But when over the time when appropriate amendments are not
done as per requirements then that cavity can be filled through legitimate
judicial decisions. These decisions are not only followed in that case but also
in all subsequent cases in which the facts are almost of similar nature.
As per James Gray
, "Precedents covers everything said or done, which furnishes a
rule for subsequent practice".
As per Salmond
, "in a loose sense, it includes merely reported case law which
may be cited and followed by courts".
says that precedents are 'judge made law'.
When judges deliver any judgement, the only thing that should be looked is
whether their decision is within the ambit of basic structure of our
Constitution or not. Because anything against it will not be acceptable and will
not be considered by legislation for turning it into law.
International and National Scenario:
Not only at local level but also in international courts also deliver judgements
with help of Precedents. Whatever judgements they deliver, it contributes an
important source of international law.
Courts in England and Wales cite judicial decisions of the some of the countries
that follow the English common law system e.g. Australia, Canada etc. Usually in
English courts judges follow the judicial decisions of the previous cases in
determining the outcome of the subsequent cases. In most part of the mainland
Europe, judges refer case laws to solve current cases especially civil law
In United States, precedents are important part in making decisions of the
subsequent cases but to a lesser extent than English law system. Although lower
courts usually follow written laws and chances of considering precedents are
very less. While Supreme Courts in US, sometimes overrule their decisions as and
when required. But they are not totally dependent on previous decisions as they
have written constitution.
In German legal system, the previously delivered judgements are given less
importance while giving wordings for subsequent cases and are not considered to
be source of law. Judges in German courts try to give more value in interpreting
law and try to mould their ideas with in the existing laws.
As far as India is considered, we have acts related to almost everything. But
still our court deliver some judgements that become landmark judgements and are
cited in upcoming cases which are on same line. On of the major advantages of
Precedents is that they provide flexibility to law. Despite having so many acts,
we are still challenged by the issues arising every day. Hence already delivered
judgements help not only judges but also lawyers to cite these cases when cases
with similar facts arises.
The judicial decisions should be published in proper
manner so that not only judges, lawyers but also legal scholars and researchers
should also be aware of these decisions. This will help to develop the
analytical skill of fresh law students and also it will help judges and lawyers
in determining the outcome of the subsequent cases. Precedents are more
practical based, they tackle the modern issue easily as in India we have may
laws that were formed at the time of British era and have gone through very few
Even if we have specific laws related to the matter but apart from
that if we are not having enough articles and other research materials then with
time these laws become incompatible to deal with modern issues. If we become
rich in research materials and more legal literature then that will reduce the
burden of codified laws as we will be able to tackle modern issues with the help
of these research literatures.
We can also take example here, when the Indian
Contract Act was codified in 1872 there were no provisions related to agreements
that are made through internet because at the time of codification of the act
there was no internet. But even now we are able to solve issues related to clickwrap and browsewrap agreements without amending the act only because of the
availability of rich literature over these issues.
Although these literatures
are mostly the result of the research done by the other countries. We refer to
these texts during analysis of the modern issues of contracts in India. However,
in our country quality literature in some of the areas like contract is not
available and as a result we refer to other nations for adjudicating matters.
If we look into the Family law in India, each religion follows its own laws.
These laws are based on their religious belief. Here scenario becomes very
difficult specially in cases related to marriage or divorce. In our country,
where the inter caste or marriage in some other religion becomes very big issue,
courts have delivered contentious judgements as well as they have also given
some good wordings. These wordings are often cited when there is any
misinterpretation of law.
Importance of Precedents
Many of the laws such as law of torts etc. is originated mainly through judicial
decisions. There is no bare act in our country related to tort law and here
judgements are delivered only with the help of previous judgements. This
indicates role of precedent as source of law.
Sometimes it becomes difficult to apply the laws that were made long back in the
present scenario. In such situations, precedents help judges in framing their
wordings and in that way previously given judicial decisions provide avoid
rigidity from law.
Since we are living in the era where scientific advancement is at its peak.
Because of this progress judges face new challenges in interpreting law as per
modern technological advancement keeping 'law as a science' in mind. Here also
these precedents help in solving complex situations.
Laws are mostly established through a priori theory but precedents are based on
posteriori theory hence they are more practical and they are obtained after
analysing the case thoroughly.
When precedents and laws are studied together then there is a chance of reaching
better outcome. When judges decide cases on both these parameters then faith of
the people over judiciary is bolstered.
One of the most important reason why we should follow precedents is that these
judicial decisions would have been formed after thorough analysis from our
ancestors. So we should not avoid them disrespecting our ancestors.
When these precedents are cited in some of the cases based on the similar facts
again and again then they act as if they are established laws and hence they
become important source of law.
Demerits of Precedents
Since too many cases are pending in our country and in each case, it is very
difficult to cite cases that match exact factual scores and hence chances of
error judicial decisions are more.
Unless there is a proper publication of the past judicial decisions it is very
difficult for not only the judges but also for lawyers to cite previous cases
before court of law.
Sometimes court makes erroneous decisions and that may set up wrong precedents
which is should be avoided from repetition.
Analysis of Precedent
When any case is placed before the judges then judges analyse the facts of the
case on the basis of two fundamental things. Firstly, they try to frame their
ruling as per well established principles. Secondly, they give wording based on
the complex case scenario and this wording is limited to that case and is not
taken into consideration in other cases.
Evolution of law is a continuous process and it is done through various sources
and one such source is Precedent. These decisions based on the general
principles never looked upon as compulsion but still they are used whenever
wording is delivered in the cases of similar factual stature. Furthermore, the
lower courts take into consideration the rulings of the higher courts while
analysing any case.
Whether decisions of the higher courts are mandatory or not,
is not written anywhere but lower courts follow judgements of higher courts to
show their respect.
It is up to higher courts whether to follow precedents or deviate from the
previous line of judgments. Practically, role of the judges is to deliver
judgement after interpreting law but indirectly they also discover new meaning
within law by giving wordings which broadens the limit of any particular rule.
But those who criticize the philosophy of precedent often says that judges who
give wordings after considering previous rulings betray their duty towards the
court. Literally, they are of the opinion that since the laws are made through
democratic process and when judges deviate or broadens the horizon of any law,
they are violating their duty towards judiciary. Furthermore, they also say that
if there is any loophole in law then it should be removed through amendments by
legislation rather than through judicial decisions. Critics also disagree with
the fact that precedents fill the loopholes that are there in law
In my opinion, there should be balance between how the judgments are delivered
with the help of precedents and law. If the court is giving more emphasis to its
previous judgements then it should also overturn it if there is any strong
reason. One of the main reasons why judges prefer precedents is because it saves
enormous amount time. As we all know that case may consume lot of time depending
upon the complexity of the facts. So if the judges and lawyers are aware about
the previous judgements then they can cite these decisions which may be helpful
in solving these cases quickly.
You can also take an example of use of coins, where courts only permit coins as
currency. Then what will happen to modern economy. In such cases court will have
to overrule their judgement to allow paper currency otherwise it will affect
economy of their country immediately. Courts cannot wait for the constitutional
amendments to allow paper currency because it may take lot of time. Hence they
will have to overrule their own decision immediately to save economy crisis
without waiting for the legislation action.
But when our constitution says A and previous judicial decisions says B then
there will controversy. However, the apex court has freedom to choose whatever
they feel is more appropriate and if they feel some laws need amendments and
they choose precedents over them then critic will show its dissatisfaction over
Even if you assume that there is no biasness among judges and they do not follow
any ideology but still there may be difference in methodology. Some of them will
prefer existing rules and some will prefer stare decisis. When judges interpret
the law in new way then a sense of legal clarity will not suffer. The only
disadvantage with precedent is that if the judges keep on changing it with time
then there will not be any clear rule and then it will be difficult to create
any clear law. Hence for precedents to be source of law, it should be clear and
should be followed on same manner if the cases based on similar facts come
When precedents are used in deciding any case then court also get an idea that
which law is no more useful and need to be removed and which law needs
We often hear the debate over rule and standards. If we consider precedents as
standards rather than rules then they have excellent merits over rigid rules
because they provide stability and flexibility. If we consider precedents as
rules then judges in future may defer from the previous judicial decisions which
will not provide the stability we are looking for. There should be strong sense
of commitment towards precedent in terms of following it. When judges will look
on precedent as rule then they may not give it much emphasis and they may
deviate their views easily. So, it will be better to consider precedent as
Laws which are already established may be interpreted widely but when you apply
precedent then its scope is limited and it is more readymade kind of approach.
There you cannot take deviation especially in lower courts. However, higher
courts may think differently and may take other instance.
If in any condition the law is not clear i.e. vague, then court will have the
power to decide the extent to which the conditions given in any law will be
applicable. Suppose if the court has passed some law elated to use of certain
drugs. If use of certain drugs is clear and the permissible limit for
consumption is given then court will have to give its judgement accordingly.
if that limit is not mentioned then court may interfere and give its observation
regarding the limit of consumption of particular drug. When subsequent cases
will come then judges may take help from their previous decisions and
accordingly, they can build their thoughts. With more cases of such type will
help in getting clearer picture about the permissible limit of consumption.
So with the help of above example one can simply understand the situation where
judges have freedom to interfere and where they will have to comply with the
established laws. This will help in maintain the stability and flexibility,
which is needed in our legal system lately.
After discussing thoroughly about the precedent, we can say that judicial
decisions are binding to all inferior courts even if it nowhere written in the
constitution. Only the apex court has the power to overrule its own decision. If
lower court makes any observation and that case comes higher courts then it may
take it for its guidance but these observations are not binding for higher
courts at all. Debate over the use of precedent is very complex.
believe that established laws should be used to solve cases are completely
against the use of precedent. Creation of law by judges is very not only
discussed here in India but also at international level. But in India, our
judges follow precedents right from the lower courts to the apex court. Since
lot many cases are filed every day in India, some cases are such that, laws
cannot be interpreted to solve these cases.
Hence the Apex Court either give
such decisions which are called 'landmark judgement' and are often used in
subsequent cases or it uses already established precedents. Since everyday cases
are coming that are of more complex nature, hence one cannot expect courts all
the cases through laws that may or may not have gone through amendments in
lately. These cases which are based on complex facts are possible to solve only
through new judgements or through precedents. There is no harm in accepting that
precedent has become an important source of law.
It provides flexibility that
courts need in present time. But these views may differ from person to person.
Those who believe that laws made by parliament are supreme and are recognised by
our Constitution, will always question the role of precedents in deciding any
case. However, if courts try to interpret law in each case despite knowing that
it is very difficult to fit the case facts within the established law then it
will become very difficult to provide stability in their judgements.
the help of precedents, it is possible to achieve that stability and they are
also not binding on the apex court. But there is always a limit to what extent
the court can act like legislature, they cannot always deviate from the codified
laws unless there is strong reason to do so. Courts can never presume that
precedent is complete but they may consider it as guiding path.
To think that
precedents are complete then courts will not be allowed to overrule their own
previous judgements. So, precedents should be looked as a force that is
providing stability to the rule of law. They should be adapted to adhere with
changing interpretation of law.
- Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MMN. L.
REV. 1173, 1173-1203(2006)
- Elena Anghel, Judicial Precedent, A Law Source, 24 LEX ET Scientia INT'l
J. 68, 68-74(2017)
- Priyan Garg, Precedents as a source of law, Lawctopus ( May 7,
- Definitions for precedent, Definitions And Translations (November 26,
- Dr.Sr.Myneni, Legal Language And Legal Writing 179 (1ed.,Asia Law House)