This article is written by Rimjhim Vaishnavi, a student of NUSRL.
Decision which have already been taken by a higher court are binding to the lower court and at the same time stand as a precedent to the lower court judgement, which cannot be altered by lower court. This principle is known as Stare decisis, which is derived from the Latin phrase “stare decisis et non quieta movere”, which basically means to stand by the decided matters. In India it is commonly known as the concept of precedent.
As per Black’s law dictionary stare decisis means to stand by decided cases, to uphold precedents or to maintain former adjudications.
As explained by prof. A. Lakshminath, the doctrine of stare decisis helps to generate judicial accountability along with it, it also ensures fairness in adjudication and excludes arbitrariness and helps in maintaining stability and certainty. Prof. further explained that stare decisis is both a social as well as a legal norm.
The desire for certainty and continuity in law gave rise to the doctrine of stare decisis. This doctrine was initially used in medieval England and America, where the common-law courts looked into the judgement of earlier cases as guidance also they had power to reject those which they does not considered good or which they considered bad.
Initially due to the lack of recording the decisions or judgement of cases in written form, doctrine of stare decisis was not freely used, but after the concept of recording the judgement came, widespread use of this doctrine was witnessed.
It was in 17th century for the first time in England, the decision of Exchequer courts were given a binding force. Later in 1883 the urgent need for recognizing the binding force of precedents was brought into notice in the case of Mirehouse v. Rennel. Further in 1873 and 1875 came up the Supreme Court Judicature Act, were the theory was stare decisis was established. In India the concept of precedent established after the Britishers came to India, which lead down the hierarchy of courts and the concept of higher courts judgement binding the decision of the lower courts.
In 1935 the Government of India Act, explicitly mentioned that the decision of Federal Courts and Privy Council will be binding all the other Courts decision in British India.
Hence, from 18th century till date stare decisis is a characteristic feature of our legal system.
Doctrine of stare decisis under Art. 141 of the Constitution of India
Art. 141 of the Indian Constitution states that “law declared by Supreme Court to be binding on all courts within territory of India.” Art. 141 state that only the ratio decendi of a case is binding not the obiter dicta and the mere facts of the cases. Therefore, while applying the decision of S.C. by other courts, what is required is to understand the true principle lay down by the previous decision.
Some basic concept of Art.141
- All the courts in India are bound by law to follow the decision of Supreme Court.
- Firstly the judgement has to be read as a whole and at the same time the observation from the judgement has to be determined in the light of the questions presented before the court.
- A judgement is used as a precedent only if it is based on deciding or resolving a question of law.
- Sometimes while deciding a case court is divided, during that situation the decision taken by the majority of judges will be later used as precedent not the decision taken by the minority of judges.
- Ex-parte decisions by S.C are also binding in nature and can be used as precedents.
- The S.C. is not bonded by its own decision.
- Procedural irregularity and immateriality does not invalidate the binding nature of a judgement.
- Special leave petition are binding in nature.
Types of precedents
- Original and Declaratory precedents– original precedents refer to those cases where there is a question of law which has not been decided before, and then in such a case the decision of the judge forms original An original precedent is a law for the future, which creates and applies new rules. Declaratory precedent means those cases where application of an existing rule of law is used. In such cases it is seen that the rule is applied because a law already existed on it.
- Authoritative or Binding precedent– it is also known as mandatory precedent or as a binding authority. It means those decisions which the judges must follow whether they approve it or not. It basically denotes the higher courts decisions which are binding over the lower courts of that region.
- Persuasive precedent– these precedents are not as binding as the authoritative precedents. These precedents means that while making any judgement the judge has to consider these precedent and has to give higher weightage to it. The main concept behind considering it is that it is relevant and can help in making a fair decision. These cases could be of could which are put at similar level in the hierarchy of courts. Even lower court decision can play a role of persuasive precedent.
Decisions which are not considered binding under Art. 141 of Indian Constitution
There are some decision which are not considered as a precedent or which do not have a binding effect. Those are:
- The decision that is not expressed
- The decision not founded on reasons,
- The decision that does not proceed on consideration of the issue.
- Obiter dicta of a case is not binding, hence it cannot be relied upon solely as a ground to hold any statutory rule invalid.it has a persuasive value.
- Decision is rendered per incuriam is not binding in nature. Per incuriam’s literal meaning is resulting from an ignorance. Hence any decision made on per incuriam, it is not used as a precedent.
- Decision is rendered sub-silentio, and then also it is not used as precedent. Sub-silentio means to a situation when the point of law involved in the decision is not perceived by the court. It means when a point of law or particular question of law was not consciously determined.
- C’s observations on the facts of the cases are not binding.
Advantages of precedents
Precedent means to follow the same which has been done earlier. Hence the first step while considering the precedent is to look the similarity, if there is any then the magnitude or degree of similarity that existed between the problems. After this it has to be seen whether the same has been used before a precedent and has resolved the problem.in this manner the precedent works. Therefore the advantages our legal system enjoys by adapting this doctrine are-:
- It is time saving avoids unnecessary litigations
- There is an orderly development of the law
- It brought greater certainty and consistency in law, which is the most remarkable advantage. As a good decision making body needs to have consistency
- Avoid arbitrariness in judgements.
- It eliminates the element of ambiguity and enables the lower courts to follow the decision of higher court unanimously.
- The presence of precedent decreases the probability of a judge making a mistake.
- It also serves the concept and interest of justice as giving different decision to similar situation might be considered unjust.
Disadvantages of precedents
Every good thing comes with it by-products which are bad or has negative effect. Some of the negative effect of stare decisis doctrine are-:
- Also practical law is based on experience, by considering precedent the scope of experience decreases which hampers the essence of practical law.
- It is being criticised because of its limiting effect over the development of law.
- The first and foremost disadvantage of this doctrine and the precedent system is its rigidity.
- Other disadvantage is its complexity which sometime makes situation more uncertain.
- Many time judicial mistakes are being continued in the form of precedent.
Hence, the stare decides doctrine is very helpful for our judicial system. But at the same time the convenience of following the precedent should not be let to degenerate into just a mechanical exercised performed without any thought. It should be used carefully, in the view of promoting justice and equity.