Precedent as a source of law

Dr. Bharat

Applying lessons of the past to solve problems of the present and future is a realistic rationale. Judicial Precedents are prior decisions that function as model for subsequent decisions relating to questions of law involving similar/identical nature. Based on the law-reporting, the binding force attached to precedents makes them another important source of law.

 Akin to the sculptors, who work on marble, stone, bronze or wood by chiseling to make beautiful art-works, the judges work on the raw material of customs coupled with other satisfactory substantiation in the backdrop of legislation! In a hierarchical set-up, the decision of a superior court is binding on all the inferior courts within its territorial jurisdiction as an authoritative precedent. But the decision of foreign courts are not binding as such, except they carry persuasive value i.e. guiding efficiency and are often termed as persuasive precedent.

“Precedent covers everything said or done, which furnishes a rule for subsequent practice.”    Horace Gray

 Sir William Blackstone pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation. They also keep the scale of justice even and steady and not liable to be waved away with every new judge’s opinion.

 Essence of Precedent

 “Rule of precedent is not a rule of law at all, but a practice laid down by the court for its own guidance...” the above statement of Lord Denning aptly underlines the essence of precedent. If law treats a person in particular manner, it is only just that other persons in similar position are treated likewise; as against the unprincipled principle of ‘Show me the face, I will tell you the rule’.

 Position of Precedents in India

 The Constitution of India gives recognition to the precedents in India. As Article 141 states all courts are bound by the decisions of the Supreme Court except the Supreme Court itself. However, the Supreme Court recognises that its earlier decisions cannot be deviated from, except in case of justifying circumstances. The decision of one high court is binding on all lower courts in that state only but carries persuasive value outside its jurisdiction. To quote, the landmark judgment in Vishakha and Others vs. State of Rajasthan was first of its kind to provide safety to women against sexual harassment at workplace; which was later transformed into a comprehensive legislation.

 Legislation and Precedent

 The supremacy of precedent over legislation or legislation over precedent, more or less, depends on preferential positioning of the courts or legislature in the legal system. However, they are different from each other as the legislation has its source in the making of law by the State whereas precedent has in judicial decisions. The legislation is a formal declaration of general rules/regulations to be applied in the adjudication of disputes whereas the final authority for interpretation of those rules/regulations is with the courts to recognise/apply new principles in administration of justice. The court, as a wing of a state, is itself a source of law.

 The main function of judiciary is to adjudicate regarding rights and responsibilities. In primitive stage, the courts are guided by customs besides sense of justice, equity and good conscience for adjudication. Subsequently, legislation helps the judges to decide the matters. Above all, banking on their judicious wisdom, judges perform creative function by adjudication. Today, the challenge for the courts is to maintain the balance between the need of conviction, consistency, continuity and the desirability of growth/development of law, which is otherwise indispensable in a dynamic society.

 Activity

Think of the situations where you found application of precedents in life and also recollect appliance of precedents in legal system!

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