This article is written by Vinay Kumar Palreddy, a student from Symbiosis Law School, Hyderabad. In this article, he explains the law of precedents by referring to the doctrine of precedent, the principle of stare decisis, Article 141 of the Constitution of India, and the elements of judgments i.e Ratio decidendi and obiter dicta.
The law is a significant mechanism in any of the societies as it properly carves the behaviour and conduct of beings in that society. It realizes the acceptable norms between the people and institutions which has the potential to avoid conflicts and mandates the following of such norms. The absence of law in the society would depreciate the ideal societal relationships and lead to an increase in selfish and brutal notions among people of that society. In light of the aforementioned significance of law, it is pertinent to mention the sources of law. Law has been evolved from three kinds of sources namely customs, legislation, and precedents. First, customs are the accepted rule of conduct or behavior which is voluntarily adopted by a group of people in the initial stage.
Later, such conduct evolves to be an elementary rule of that particular group. The evolution of such conduct to be a rule is known as customary law. As far as the second source is concerned, legislations are the consciously made laws either by the government or legislature of a country, and these are currently considered as the major source of law across the countries. The last source of law is the precedent or case law. It can be defined as a former legal decision given by a particular court which has similar or related principles in a latter case. Thus, the former decision is either binding or persuasive so that there is no need for all the courts to determine the legal principles which are to be attracted in the latter case. Hence, as the precedents and its contents seem to be important for the functioning of judiciary and law, the current Article deals with the doctrine of precedent, stare decisis, Article 141 of the Indian Constitution with special reference to its contents such as ratio decidendi and obiter dicta.
The Doctrine of Precedent and Article 141 of the Indian Constitution
The term ‘precedent’ usually refers to an action or decision which is undertaken previously by someone in similar circumstances and can be utilized as a reference or guide for future conduct. But in the judicial sense, it is the decision taken by the same or the other court in a former case in which similar circumstances of the latter case existed and such decision must be used as a standard rule in deciding the latter case. Keeton defined judicial precedent as the decision of a court that contains authority to a certain extent. The word ‘precedent’ evolves from ‘precedence’ which means ‘to be considered important or prior to the other things’. The administration of justice functions on a notion that cases which are attracting similar principles of law must be decided similarly. Hence, the general rule is to follow the path of former decisions provided that there seems no reasonable justification for diverging from them.
The judicial precedents are divided into four types. The first kind is the authoritative precedents which are to be followed by the court of law without diverging from the previous decisions. These decisions usually consist of the judgments given by the superior court. The second type of precedent is the persuasive precedents which are the decisions that carry no obligation to be followed but have a persuasive value in the court. Generally, the decisions of foreign courts and High courts of other states are persuasive in a high court of a particular state and the decision of the Supreme court is persuasive in the same court. This is because SC doesn’t have any obligation to follow its own decision and can diverge from the previous decisions. The third type is the original precedent which involves the creation and application of the new rule. Thus, the new rule becomes a guide in deciding future cases. The last type of precedent is declaratory precedents. Salmond defines it as the mere implementation of the existing rule.
The application of this principle of following the former path is known as the doctrine of precedent. The law of precedent is based on the doctrine of stare decisis which is derived from the maxim “Stare decisis et non-quieta movere” which can be described as “to stand by the decisions and not to disturb settled rules”. With regards to the application of stare decisis, the Supreme Court in the case of Waman Rao v. Union of India held that a principle that has been applied in decisions by the earlier courts can be directly followed by the courts in subsequent cases and there is no need to determine the rationale upon which such principle was built. Herein, we need to understand the doctrine of precedent evolved into a law that has a binding effect but the doctrine of stare decisis is a mere principle that could be broken. Hence, the law on precedents evolved even when there is the principle of stare decisis.
The doctrine of precedents is a significant mechanism coined by the English law in the medieval ages. At the time when the parliament had not evolved as legislation making body, the judges in the English court determined certain principles while deciding the cases. These principles made a notable contribution to the advancement of English law. The case of Mirehouse v. Rennell contributed a lot to the concept of precedents or judge-made laws wherein it was held that the previous decisions of the courts cannot be diverged by the judges for the reasons of uniformity, certainty, and consistency. In this case, Justice Parke also held that the judges cannot apply a rule set by previous judges in a way they like because such a path is convenient and reasonable to their mind. Among the newly evolved legal systems existing across the globe, Anglo-American law is common law as it evolved from the decisions of the judges. The common law was also applied in India by a few modifications made by the courts which align with the Indian context.
As far as the Indian context is concerned, the judges in ancient India did not follow the doctrine of precedent as they were not dealing with complicated laws, and as this concept did not evolve much. Even in the medieval period, this concept was not traced to the actions of the justice administration. The formation of the Regulating Act of 1773 brought significant changes in the concept of precedent in India. Primarily, this Act established a Supreme Court in the Bengal Presidency and the aftermath effect of this Act is the establishment of Supreme Courts in other presidencies. Later, in the year of 1861, the Indian High Courts Act was introduced in the Indian colony thus ensuring the structure of inferior and superior courts. These two Acts developed an obligation upon the inferior courts functioning in these presidencies to abide by the rules followed and laid down by the superior courts. Finally, by the induction of the Government of India Act, 1935, a federal court was established in British India thus ensuring a supreme authority in the judiciary. Section 212 of this Act expressly ensured that the decisions of the federal court are binding on all the courts in India.
Post-independence, the Constitution of India, 1950 established the Supreme Court, and Article 141 of the Constitution promulgates that the law declared by the Supreme Court to be obligatory upon all the courts in India. First, the expression ‘law declared’ herein is well explained in the case of Bimal Devi v. Chaturvedi. Justice Agarwala held that law declared includes ratio decidendi as well the obiter dictum only in the case where to point regarding obiter dictum is raised and argued. But it is to be understood that all contents of a judgment cannot be deemed to be binding under Article 141. The statements made by the court in the usual course of giving a judgment but not with respect to the law does not carry any obligatory force.
In another case, State of Kerala v. Vasudevan, the court held that as no case is perfectly similar with respect to the facts, the decisions made on the question of fact cannot be used as precedents. Secondly, the expression ‘all courts’ has a certain significance as to whether the Supreme Court is bound by its own decisions or not. But, this question is settled with the pronouncement of various judgments that SC can take a divergent path from its previous decision. In the case of Dwarkadas v. Sholapur Spinning and Weaving Co, while dealing with the same question, held that there is no obligation upon the Supreme Court to follow its own decisions and can take a conflicting path if the previous decision seems to be erroneous but such power must be used diligently. Hence, judgments of higher courts are binding on the lower courts but have persuasive value in the courts giving such judgment.
As it is already discussed that ratio decidendi and obiter dictum are two contents of judgment, it is pertinent for us to understand which one of these parts is binding in case a precedent is raised in the court of law.
Ratio decidendi literally means ‘reason for deciding’. In the judicial context, it is the reason which is cited for arriving at a decision in a case. Such reason is not the law that is getting attracted in the contemporary case but is the necessary notion which helps the court arrive at a particular decision. It is this part of the precedent which has to be followed by the courts in subsequent decisions but not the general observations of the court. There is a dispute of law involved with respect to the reasoning given by the judgment and not a dispute of fact. As the facts cannot be similar in other cases, the observations pertinent to the facts made by the judge cannot be binding in the other cases though the similar laws are attracted. But the reasons for arriving at a decision are binding. In case there are multiple reasons for deciding in a manner, all those reasons will be binding in the subsequent cases.
In the case of B. Shama Rao v. UT of Pondicherry, it was observed that any of the decisions of a court which is binding as a precedent is not because of the end result or the order of that decision but based on the reasons and principles referred to in such a decision. The ratio in deciding a case would evolve from the interpretation of a statute, principles of natural justice, and the common law principles. In the case of multiple judges deciding a case, the reasons cited by the majority of them will have an effect of precedent on further cases. But if the judges agree with the judgment or order but not with the ratio for arriving at such a decision, such judgment or order does not carry an obligation to be followed as a precedent. Though it is difficult to pick a ratio from a judgment, the primary duty of judges while arriving at a decision is to determine a ratio, and the court’s duty while citing a case as precedent is to identify what is the ratio in such a case. Ratio decidendi can be determined by prioritizing the material facts and leaving the unimportant facts behind. Another way to identify ratio is to narrow down the precedents which could be applicable in determining the case. Even in this method, due importance must be given to the majority opinions and the crux of the cases. Rather than these general techniques, certain specific tests are laid down by the jurists such as Halsbury, Wambaugh, Goodhart, and Julius Stone. These tests are used to this day to correctly determine the ratio of a case.
The descriptive ratio is the rationale or the reason which helped the court to arrive at a decision. It is the original ratio and is used as an aid in future cases
On the other hand, the prescriptive ratio is the way in which the descriptive ratio is used as a precedent in a future case. No case is totally similar to the facts or the law. Due to this reason, there arises a problem in the application of the principle as it is laid down in a future case. Hence, the descriptive ratio is slightly altered by using the level of generality so as to apply it as a prescriptive ratio.
This is another part of any judgment. Obiter dictum is defined in the case of Mohandas Issardas v. A.N. Sattanathan as the opinion expressed by the judge in the court or during pronouncement of judgment which does not have any importance in the decision. This is not an important constituent to arrive at a decision but is just used to describe the circumstances. They are the incidental remarks made by the court while dealing with the actual conflict between parties. In the case of Sarwan Singh Lamba v. Union of India, the SC observed that in general circumstances, even the obiter dictum mentioned in a decision of the court is expected to be followed. Moreover, the Supreme Court’s obiter dictum carries a considerable weightage. But such weightage depends upon the kind of dictum given by the court. If the dictum is a casual remark by the court, it does have any effect on the parties or the subsequent cases. In another scenario, certain obiter dicta have recommendatory or persuasive value but do not bind anyone. Hence, the ratio decidendi is an important constituent of judgment rather than obiter dicta.
During erstwhile India, the obiter dicta of Privy Council was given the highest position. In Mohandas’ case, it was held that as the Privy Council is the highest court of appeal, the obiter dictum will also be binding on all the courts in India. But in England, the situation was different with respect to the effect of obiter dicta and it was not binding on any court. (As per Halsbury Laws of England, Volume 22, page. 797)
Precedents are major players in the legal field as they lessen the burden on courts to a larger extent. It helps the judges deciding the subsequent cases to understand the crux and jurisprudence behind a legal principle rather than just applying it. Moreover, as the ratio decidendi is the part that has to be identified from the whole judgment while using a precedent, the legal students, academicians, lawyers, and the judges would require skill in culling out the ratio and leaving behind general observations.