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Legal Precedents: A Source Of Law

"One Precedent Creates Another And They Soon Accumulate And Constitute Law. What Yesterday Was A Fact, Today Is A Doctrine" - Junius, a legal writer in 18th century

In this contemporary era where the world revolves around law and there are different set of laws, jurisdictions, and legislations through which decision in the court is made. With the furtherance in society and its morals and values, judicial Precedent becomes an important source of law. Judicial Precedent is basically a judgment made by the honorable court of law used as a reference to make decision of a case with similar facts and issues.

A Precedent utilizes the cases and legal issues previously decided by a court in settling similar current legal matters. The Precedent can also be binding. Judicial Precedent leads to development of jurisprudence. The doctrine of Precedent which is also known as stare decisis, which is a Latin term and means stand by the decision, is based on the principle that like cases should be decided alike.

Views of different Jurists
According to Salmond, "in a loose sense, it includes merely reported case law which may be cited & followed by courts. "In a strict sense, that case law, which not only has a great binding authority but must also be followed? " Salmond is talking about how the concept of Precedent is merely based on law reports that are considered important and to be a landmark judgement by the court of law and afterwards he is talking about how some laws are supposed to be followed without any exception and have authority given to them by law.

According to Gray, Precedent covers everything said or done, which furnishes a rule for subsequent practice. "Sir john gray is explaining that it is not only a judgement that can be used as a Precedent anything that has been used while solving a case, can be used to solve a case which has similar issues and facts in the future."

Bentham says that Precedent is just judge made laws explaining that judges decision are used to solve the case furthermore this also gives us the proof that things judges have said were used as reference. According to Keeton, "a judicial Precedent is judicial to which authority has in some measure been attached."

Characteristics of Precedent

The settled hierarchy of court system is crucial because Precedent is based upon the rule that a court is bound by decision of all superior court therefore a hierarchy is required to know decision from which court is supposed to be adhered by. The cases should be thoroughly reported and detailed so that it can be used by the courts the cases should be arranged properly as to everything is systematic and can easily be referred to.

History
In England the importance of Precedent has more importance as compared to any other countries in the world as English law system also known as the common law system is based on judicial decision so the concept of Precedent also emerged in India during 18th century under the British rule.it started when the regulating act of 1773 came into play and established supreme court in the Bengal province and the subsequently high court was established creating a hierarchy of courts.

The governments of India act 1935 established federal courts and privy councils and declared that decision made by these judicial authorities will be binding upon the decision made by all the courts in the territory of India. Since then, Precedent has been an important component of the Indian judicial system. The concept of doctrine of Precedent got clearer in India in 1950 when it was recognized by the constitution of India in the article 141.

Article 141 states that the law declared by the Supreme Court shall be binding on all Courts within the territory of India by protocol the high court decision is binding on all the lower courts in its jurisdiction similarly decision made by any high legal authority is to be followed by any lower bench while making any judgments.

The question that if Supreme Court is bound by its decision or not under article 141 was decided in Sajjan Singh v/s state of Rajasthan in which it was decided that there is no restriction on supreme court to follow its own decision and supreme court is allowed to review its own previously made judgments.

Types of Precedent

Authoritative Precedent
A judge must follow an authoritative Precedent regardless of whether he agrees with it or not. To put it another way, the judge is powerless. For instance, a judge of the Kerala High Court is bound by a decision of the Supreme Court of India. The lower courts in Kerala must follow the ruling of the Kerala High Court. Decisions made by superiors are always regarded as authoritative Precedents in a system of Precedents.

Persuasive Precedent
A persuasive Precedent is one that the judge is not required to follow. He can choose whether to follow a Precedent in this situation. He may comply with a judgment if he is persuaded of its justness considering the crime; otherwise, he may object. The Punjab High Court is not required to follow a decision of the Madras High Court; rather, it just serves as a persuasive Precedent in that regard. Foreign rulings might also be thought to be persuasive. Despite not being legally enforceable, persuasive Precedents frequently have a significant impact on judicial judgments.

Advantages of law Precedent

Anyone in the eye of law according to Precedent is treated similarly in a similar matter. They also help to make new legal laws and change the ideas of society as there are lots of judgments that change the course of the society and open it to new ideas. Precedent is also set of binding rules, it helps to maintain stability and keeps the system steady and it is easy to forecast the result so the lawyers can prepare accordingly therefore it saves time and effort. The legal Precedent acts as a guide to the judge to avoid any erroneous decision or judgment. It is practical in nature as it is derived from real facts

Disadvantage of law Precedent
When a Precedent has been followed and made a rule it is difficult it to be change and it opposes itself on lower court hence forcing them into making harsh decision there are a lot of Precedents in a lot of cases so it is difficult to find the right Precedent in the right case

Important cases in the history of Precedents in India

  1. Vishakha vs State of Rajasthan
    It was a landmark judgement the issue of sexual harassment at workplaces was dealt by the court. The case was of the brutal gang-rape of an NGO worker named Bhanwari Devi. As part of her job, she tried to stop the child marriage of a nine-year old girl. She was later gang-raped by five people including the father of the child. Later an FIR was filed by Bhanwari Devi and later after the court proceedings all the alleged person were acquitted.

    This led to several NGOs to come together under a collective platform Vishakha and they filed a PIL. The later found in its observations that the incidents of sexual harassments were not uncommon and there is an urgent need of guidelines for women to protect them from the incidents of sexual harassment. These types of cases led to the violation of fundamental rights of women.

    After 15 years the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. The act gives details about the law surrounding the sexual harassment at workplace at what are the preventive steps which could be taken at the workplace and the procedure to file a complaint.

    The court using its power under article 141 made this Precedent binding until a legislation is enacted for this purpose. The above case was used as a Precedent by the courts for 15 years by the courts in order to take decisions related to cases of cases of sexual harassment at workplaces. This case also told us that there was a need of legislation in this field which led to the execution of legislation in 2013.
     
  2. Recognition of third gender.
    The case of National Legal Service authority of India v/s Union of India & Org brought into limelight the issue of the various types of discrimination faced by the third gender and the non-recognition of the third gender. The point which was put forward was that the non-recognition of the third gender was the violation of the fundamental rights.

    The honorable court recognized the rights of the third gender and upheld the transgender persons" right to decide their self-identified gender. The courts also directed the state and the central govts to eradicate the discrimination of the third gender.

    Because of this judgement the parliament passed a series of bills one of which is Transgender Persons (Protection of rights) Act,2019. The 2014 judgement is an important

    Judgement which led to the introduction of series of bills recognizing the rights of third gender and sought to end the discrimination of the third-gender.
     
  3. The Triple Talaq Case
    In 2017 the case of Shayarabano v/s Union of India was a landmark judgement in the case of triple talaq. ShayaraBano who got married to Rizwan Ahmed in 2002 in uttar Pradesh was divorced by her husband in 2015 through the use of talaq-e-iddat. Talaq-e-iddat is a practice in which the husband divorces his wife by saying talaq word three times. There is no consent of wife in this practice.

    In 2016 Ms Bano filed a writ petition in supreme court challenging the practice of talaq-e-iddat. The petition claimed that this practice violates the fundamental rights expressed under article 14,15 and 21. The supreme court after looking into the Islamic practices and the Islamic law found the practice to be unconstitutional. After the decision of the supreme court in this matter the president gave an ordinance in this matter. The president issue the Muslim Women (Protection of rights of women on marriage) Ordinance,2018. The ordinance declared the practice to be unconstitutional and a criminal offence. It was this decision of the supreme court which led the parliament to form a statute and declare the practice illegal.
     
  4. Mc Mehta v/s Union Of India 1987 SC 1086
    It was a landmark judgment that became a landmark judgement in case of environment law in India. The petitioner-in-person MC Mehta filed the first Civil Writ Petition 12739 of 1985 under Article 32 of the Constitution of India to seek a direction for the closure of various industrial units owned by Shriram Foods & Fertilisers Industries (here-in-after referred to as "Shriram" for convenience) since they were located in a heavily populated area in Delhi and were hazardous to the people living in the vicinity. during the pendency of the forementioned case there was another spill of hazardous gases from the same factory.

A lot of steps were taken in case of environment law after this case.

Conclusion
From the above mentioned law Precedent is imperative source of law and it plays a very imperative role as being the source of law. It is very efficient and reliable source for judgements. It is more practical than the already made legislation as it is derived from real incidents, facts, and issues. This is a source of law which the courts and society can rely on to maintain stability in the legal system of India and even all over the world.

References:

  1. Ms. Reet Balmik. (2021, July 24). "The role of Precedents in the draft of recent legislations." law sikho
    https://blog.ipleaders.in/role-Precedents-draft-recent-legislations/
  2. Essays. (2018 November). The Doctrine of Judicial Precedent Law Essays" Retrieved from
    https://www.ukessays.com/essays/law/the-doctrine-of-judicial-Precedent-law-essay.php?vref=1
  3. Pragati Ghosh (n.d.)." Judicial Precedent." share your essay
    https://www.shareyouressays.com/knowledge/essay-on-judicial-Precedent-1760-words/116799
  4. Kiranpreet Kaur. (2020 February 10). "India: Judicial Precedents in India." Mondaq
    https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-Precedents-in-india
  5. Doctrine of Precedent. (August 9 2021). SCC online
    https://www.scconline.com/blog/post/2021/08/09/doctrine-of-Precedent/

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