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The role of precedents in the draft of recent legislations

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This article is written by Ms. Reet Balmiki, from NALSAR University of Law. This is an exhaustive article which deals with the role of precedents in the draft of recent legislation.

Introduction

Courts give life to the words of the legislation. They are required to apply pre-existing rules that are laid down by the parliament to real-life situations. Since these legislations are written in a way that allows their application to various circumstances effectively, they often lack clarity and precision. Therefore, while applying these rules, the courts are required to interpret the generally stated laws and apply them to the specific case at hand. This gives the judges a discretionary power to creatively interpret the words of the law and provide the legislation effective meaning to achieve the end sought. 

In the process of resolving individual disputes, the courts often develop specific rules that are used for deciding similar cases in the future. Such judicial interpretation of the statutes, thus, becomes persuasive for future cases, sometimes to the extent of supplanting the legislative enactments themselves. The idea behind judges following earlier decisions is to avoid finding new solutions to the same problems and to ensure that identical cases are dealt with in the same manner to uphold the principle of fair justice.  

Precedents and their importance in India 

Meaning of judicial precedents and their origin 

A precedent, in simple terms, is a principle or a rule of law laid down by a superior court in a previously decided judgment that may be referred to for guidance in subsequent cases of similar nature. It is recognized as a primary source of law and is an important feature of the British legal system and countries that follow the common law system. The legal doctrine of judicial precedent emerges from the principle of Stare decisis which means “to stand by things decided”. 

In modern society, judicial decisions act as a link between two other sources of law – the legislation and the custom. The legislation lays down the basic rights to be guaranteed or protected. The judges decide matters based on these legislations while taking into consideration the prevailing customs in the society. By creatively interpreting the law, they thus lay down new principles and rules that are binding on several other courts.

During the ancient and medieval periods, India did not find the need for depending on precedents to resolve disputes. This was because the judiciary and the laws were relatively simple and direct, thus eliminating the need for judicial precedents to interpret the laws. It was only during the British raj that the doctrine of precedents began to gain importance. The influence of the long period of British raj on Indian law led to judicial precedents being considered as a primary source of law. The Government of India Act, 1935 established a federal court and Privy Council whose decisions would be binding on all other courts in the country as per Section 212 of the Act. This laid the foundation for the doctrine of precedent in Indian law, which later grew in importance over time. 

Constitutional backing of the doctrine of precedent

The legal doctrine of precedent is expressly recognized by the Indian Constitution under Article 141 which states that the law declared by the Honourable Supreme Court of the country will be binding on all courts within the territory of India. It must be noted that the phrase “all courts” here refers to all courts other than the Supreme Court of India, thus it can be read as all lower courts. Based on this interpretation, the Supreme Court is not bound by its own decisions. 

Though there is no express provision, by convention the decisions of all High Courts are considered to be binding on all the lower courts that fall within its jurisdiction. This means that the decisions of a High Court will not be binding on other High Courts or lower courts beyond its jurisdiction, however, they will continue to hold a persuasive value. 

In certain instances, the precedent does not hold a binding effect on the other courts. This includes:

  1. When the judgment is overruled by the judgment of a higher court or the subsequent enactment of a statute that is inconsistent with the rule. 
  2. When the judgment is either not expressed or is not founded on reason.
  3. When the judgment is given in ignorance of the law.
  4. Mere observations by the court do not hold a binding effect. 
  5. When the judgment is contrary to the decision of another court of higher authority.

Except under the above instances, the authority of a judicial precedent must be upheld by the courts and future decisions must be taken following it. This ensures that the law made by the judges is practised and plays the intended role in society.

Importance of precedents in India 

The existence of a precedent ensures the people that any case of a similar nature will be dealt with in the same manner to ensure that fairness while delivering justice is maintained. This brings in an element of consistency and predictability in the judgments laid down by the courts.

The reliance of the courts on previous decisions also saves the courts precious time since it eliminates the need to find an answer for the same question each time it occurs. Precedents also bring in the much-needed flexibility in the age-old legislations as the judges interpret the laws according to the changed circumstances and the current needs of the society. This is essential in a country like India, where many of the important legislations were enacted over a century ago.

In several cases where the judges would have made an erroneous interpretation of the law, precedents guide judges and help them prevent such errors. They also bring forward important and new issues that were formed due to change in circumstances over time and help prepare statutory laws to govern these issues. 

There is a need for good precedents in India to maintain certainty and stability in the legal system and lay down rules to govern certain issues that the legislations are silent on. 

Legislations – a reflection of precedents 

As discussed before, not all judicial decisions have a binding effect on all other courts. While some have a mere persuasive effect, other decisions are binding only in certain specific cases. However, several landmark judgments have taken the form of binding judicial precedents, and the law laid down under such cases is considered as having the force of legislation. Apart from this, many such judgments have forced the parliament to enact fresh legislation governing certain important areas.

To understand the practical importance of judicial precedents in India, there is a need to analyze certain landmark decisions that signified a need for a change in the understanding of the law or introduced new areas that require legal attention. 

The Vishaka guidelines 

In the landmark case of Vishaka v. State of Rajasthan (1997), the court dealt with the issue of sexual harassment at the workplace. The immediate cause for the case was the brutal gang rape of a social worker named Bhanwari Devi, in Rajasthan. As a part of her job, she was stopping a child marriage of a nine-month-old girl. She was later gang-raped by the girl’s father and his five friends in front of her husband. On filing a criminal complaint against the offenders, they were acquitted as everyone dismissed her claim. This incident caused several women and NGOs to file public interest litigation under the collective platform of Vishaka. 

The court under this case observed that such incidents at the workplace were not uncommon and there was an urgent need to find an alternative mechanism in the absence of legislation protecting the fundamental rights of working women. Such incidents were held to be violative of the fundamental rights under Articles 14, 15, 21, and 19(1)(g)

This led the court to draw upon international conventions and norms to pass a set of guidelines that are popularly known as the Vishaka guidelines. The court exercised the power granted to it under Article 32 to ensure the protection of the fundamental rights in the absence of legislation in this field. The court also explicitly stated that the guidelines would be binding as declared by Article 141 until legislation is enacted for this purpose. 

Almost 15 years later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. The Vishaka guidelines set out in the above case laid the foundation for the Act. The Act lays down in detail the law surrounding sexual harassment at the workplace, preventive steps to be taken at the workplace and the steps to file a complaint, etc. 

This judicial precedent played a significant role by laying down detailed guidelines for the protection of the rights by filling the legislative vacuum. These guidelines were used by several courts to decide cases relating to sexual harassment at the workplace, for over 15 years. In addition, it also highlighted the need for a legislature in this field, which persuaded the executive to formulate the 2013 Act. 

Recognition of the third gender 

The issue of non-recognition of the third gender and several forms of discrimination faced by the transgender community came into discussion in the case of the National Legal Services Authority v. Union Of India & Ors. (2014). It was argued that the non-recognition of the identity of the third gender is a violation of the fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution. 

The Honourable Court recognized the rights of the third gender to be very well protected under the fundamental rights guaranteed by the Constitution. The court thus declared the Hijras and Eunuchs to be recognized as a “third gender” and upheld the transgender persons’ right to decide their self-identified gender. The court also directed the central and state governments to take several steps to eradicate the discrimination and problems faced by the members of the community. 

Because of this judgment, the parliament introduced a series of bills recognizing the third gender and seeking to protect their rights. This finally led to the enactment of the Transgender Persons (Protection of Rights) Act, 2019. The 2014 judgment is considered to be important as it is the first to legally recognize non-binary identities and uphold their fundamental rights. This judgment also persuaded the formulation of the Act protecting the rights of transgender people.

Gender justice – the criminalization of triple talaq 

The Honourable Supreme Court, in the case of Shayara Bano v. Union Of India And Ors. (2017), took into consideration whether the practice of triple talaq or “instant divorce” is violative of the fundamental rights guaranteed by the Constitution. After looking into the practice and the Islamic law, it was established by the court that the practice of triple talaq is not subject to public order, morality, or health as required under Article 25(1). The court further held that the practice of ‘talaq-e-biddat’ clearly violates the fundamental rights expressed under Articles 14,15 and 21 of the Constitution. 

After the court declared the practice to be unconstitutional and a criminal offence, the President of India issued the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. This Ordinance not only declared the practice to be void but also a criminal offence. Section 4 of the Ordinance also made the practice punishable with up to 3 years of imprisonment and a fine. Subsequently, the parliament passed the  Muslim Women (Protection of Rights on Marriage) Act, 2019 based on the Ordinance. 

The carefully taken decision of the Supreme Court to hold the infamous practice to be unconstitutional and illegal, influenced the parliament to formulate a statute declaring the practice illegal and specifying the punishment. The statute also takes into consideration several violations of the fundamental rights of Muslim women and seeks to protect them. 

The need for good precedents to be delivered by the court 

The doctrine of judicial precedent has played a significant role in the Indian legal system over the years. It is recognized as an important source of law and has influenced many aspects of the legal system. There are several reasons for good precedents to be delivered.

  1. One of the key reasons is to fill in the gaps present in the legislation. Since it is up to the courts to ensure proper application of the rules, it is often required that they read between the words of the law and interpret certain rules to expand or limit the scope of the statutes. 
  2. It is also required that the courts lay down rules to solve matters on which the law is silent. This is an essential role of judicial precedents as it ensures that the rights of the people are not compromised and lays down principles guiding courts while deciding future decisions.
  3. To keep up with the changes of society, it is essential that the courts lay down good precedents fulfilling the needs of the current society. The precedents often shed light on the contemporary legal issues rising in the society and enable deliberations upon these same. This also ensures that the law remains ever-evolving and does not become stagnant. 
  4. There is a need for good and exhaustive precedents to be set to avoid ambiguity when applied in future cases. A clearly laid down precedent will save the court’s time and reduce the chances of wrongful application by future courts. 

The legal system must be able to protect the rights of the citizens in all aspects, including the overlooked problems of the past and the newly emerging problems in society. To ensure this, the courts must deliver good precedents to rely upon in the future. 

Conclusion 

The good judicial precedents set by the courts have had a huge impact on the formulation of the recent laws. In addition to guiding the lower courts while deciding similar cases in the future, the precedents also contributed largely by guiding the parliament to make laws. They often bring into focus certain areas that are in urgent need of legal governance. They shed light on the violation of the rights of several groups that require legal protection. 

Therefore, the judges play an important role in laying down important precedents, which are also called judge-made laws. The role and significance of such decisions have increased over time and highly contributed to the formation of several recent legislations. 

References 


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