Precedent
Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. The doctrine of precedent which is also known as stare decisis, i.e. stand by the decision, is based on the principle that like cases should be decided alike.
Once a case is decided by judge by applying the principle, a case on similar facts which may arise in future must also be decided by applying the same principle. This is not always saves the time and labour of judges, but also secures certainty, predictability and uniformity in the applications of law.
CLASSIFICATION OF PRECEDENT
Original and Declaratory Precedents
The judicial decisions are of two types, namely those which create a new law, and those which apply known and settled principle of law to the particular facts of law.
Both these types of decision are treated as precedent. It is because the legal principles embodied there in are authoritative guides to courts for the determination of future controversies.
Decisions which create a new law are called original precedents, while those which apply known and settled principles of law to the particular facts of the case are called declaratory precedents. A declaratory precedents is not a source of new law where as an original principle is.
There are several declaratory precedents of law, for the law on most of the points is already settled, and judicial decision are mere declarations of pre-existing rules. On the other hand, original precedent, though fewer in numbers, are greater in importance, as they alone develops the law.
This distinction between original and declaratory precedents is based on two diametrically opposite theories of precedents. One theory supported by jurist like Austin and Friedmann concide they law making role of the judge. In their view some precedents may be original because they laid down original new principle of law.
Jurist like Blackstone do not agree with this, and consider the precedents is the declaratory only, i.e., they merely reiterate recognise principles of law the common law contains a rule for every situation and the judge’s function is only to discover and apply it to the case at hand. This is known as declaratory theory of precedent.
AUTHORITATIVE AND PERSUASIVE PRECEDENT
Classification of precedents into authoritative and persuasive is a widely accepted classification. An authoritative precedent is one which the judge is bound to follow the irrespective of whether he approves it.
In other words the judge has no choice. For instance, are decision of Supreme Court of India is binding on a judge of Kerala High Court. Similarly, a decision of Kerala High Court is binding on lower courts in Kerala. In a system of precedent, decisions of superiors are always consider as authoritative precedents.
Authoritative precedents are further classified in absolute and conditional. An absolutely authoritative precedent is absolutely binding and must be followed without any question, however, unreasonable or erroneous it may be appear to be.
It has a legal claim to implicit and unquestioned by the court. Conditionally authoritative precedent is one which is normally binding on the judge may be disregarded by him in limited circumstances.
A persuasive precedent is one which the judge under no obligation to follow. Here, he has a choice in deciding whether to follow a precedent. If he is convinced of the crime of the merits of a decision, he may follow it; otherwise he may refuse.
A decision of the Delhi High Court is only a persuasive precedent as far as the Madras High Court concerned, under it is under no obligation to follow it. Foreign judgments may also be considered as persuasive. Persuasive precedents though not binding, often exert a decisive influence on judicial decisions.
The distinction between a persuasive precedent and a conditionally a authoritative precedent lies in the fact that the former requires reason to supported while the latter requires are reason to reject it. Authoritative precedents are considered to be legal source of law, while the persuasive precedent is only historical sources.
In ‘oxford dictionary’ precedent defined as ‘a privious instance or case which is, or may be taken as an example of rule for subsequent cases or by which similar act or circumstances may be supported and justified’ A number of jurists
FOREIGN JUDGEMENTS:
Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, although not strictly bound to do so. In India Supreme Court may follow judgments of High Courts and High Courts may follow judgments of other High Court.
The English decisions referred to by Supreme Court are of courts of a country from which India has derived its jurisprudence and large part of Indian laws and in which the judgments were delivered by Judges held in high repute.
Undoubtedly, none of these decisions are binding upon Supreme Court but they are authorities of high persuasive value to which Courts may legitimately turn for assistance.
Whether the rule laid down in any of these cases can be applied by Courts must, however, be judged in the context of Indian own laws and legal procedure and the practical realities of litigation in India. Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC 263.
The Supreme Court is not bound by the dicta and authority of English cases.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, AIR 1954 SC 236:
Supreme Court although can be guided by English judgement but cannot ignore the rulings of Supreme Court itself.
Samant N. Balakrishna, etc. v. George Fernandez and others etc. AIR 1969 SC 1201; 1969(3) SCC 238.
American cases relating to American constitution cannot be relied for the purpose of examining fundamental rights under Indian Constitution because of difference of social conditions and habits of people of both the countries. Pathumma and others v. State of Kerala and others, AIR 1978 SC 771: 1978(2) SCC 1:
The Courts have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. Courts cannot allow its judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
Indian Courts no longer need the crutches of a foreign legal order. Indian courts have to build up their own jurisprudence. M.C. Mehta and another v. Union of India and others, AIR 1987 SC 1086: 1987(1) SCC 395:Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC 263.
American cases relating to American constitution cannot be relied for the purpose of examining fundamental right under Indian Constitution because of difference of social conditions and habits of people of both the countries. Pathumma and others v. State of Kerala and others, AIR 1978 SC 771, 1978(2) SCC 1.
Decisions of Privy Council or Federal Court are not binding on Supreme Court. State of Bihar v. Abdul Majid, AIR 1954 SC 245.
