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Use of Precedent in Framing Laws

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 different wording.

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 their decisions.

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 present scenario.

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.

These judicial 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 upon.

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".
Bentham 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 cases.

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 amendments.

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 interpretation.

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 courts.

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 before courts.

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 amendment.

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 standard.

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.

But 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.

Those who 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.

But with 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.

  1. Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MMN. L. REV. 1173, 1173-1203(2006)
  2. Elena Anghel, Judicial Precedent, A Law Source, 24 LEX ET Scientia INT'l J. 68, 68-74(2017)
  3. Priyan Garg, Precedents as a source of law, Lawctopus ( May 7, 2015),
  4. Definitions for precedent, Definitions And Translations (November 26, 18)
  5. Dr.Sr.Myneni, Legal Language And Legal Writing 179 (1ed.,Asia Law House) (2017)

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