Before analysing the role of precedent in the development of law and society, it is important to understand what constitutes a precedent. According to Gray, it “covers everything said or done which furnished a rule for subsequent practice”[1]. According to Keeton, it is a “judicial decision to which authority has in some measure been attached”.[2] In general words, precedent means a set pattern guiding future conduct. Judicial precedent, on the other hand, means the judgment of a Court of law which can be used as an authority for deciding a similar set of facts, by the lower courts, or the same court itself.
Where a court pronounces its decision, it contains in itself a principle. This principle creates a judicial precedent. The opinion in which the judge formulates his reasons for the decision is not the precedent, although such opinion plays an indispensable role in ascertaining the precedent, since only from the opinion can one discover what facts are regarded by the court as material. The application of the judicial precedent is governed by the different principles in different legal systems. These principles are called the ‘Doctrine of Precedent’.
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The concept of precedent originated from the doctrine of stare decisis which means to “abide by the decisions”[3]. This doctrine aims to bring certainty and conformity to the decisions of the court and to the law.
The judicial precedents are binding on the lower courts and the same court, unless-
- The same has been overruled by the higher court
- The same has been reversed by the higher court
- The facts of the case seem to be different
Precedent plays an instrumental role in the development of law and society. It ensures equality and fairness by means of treating similar cases in a similar manner. This brings the certainty of law and upholds the confidence of the citizens in the justice delivery system. With respect to the judiciary, it acts as a guideline to decide future cases based on similar facts. It ensures that the lower courts adhere to the interpretation of the law by the superior court in line with the changing needs of the society (the Vishaka guidelines in India[4]).
Furthermore, it provides a binding nature to the principles evolved seldom by the judiciary, while discharging their functions as an interpreter of law (the binding nature of the doctrine of basic structure with respect to amending the Constitution[5]). Lastly, it saves time and increases the convenience of the court, as a question of law, once decided, is settled and the judges and the lawyers need not spend time and labour on reestablishing the same principle.
With respect to India, the Indian Constitution empowers the Apex Court to interpret the law. Such interpretation is binding on the lower courts. The judgement of the Supreme Court is a decision, for the litigants, however, for the nation, it is a declaratory law[6]. However, a judgement acts as a precedent only when it decides a question of law and not otherwise[7].
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The expression ‘all courts’ used under Article 141 infers that the Supreme Court is not bound by its own decisions, except that a smaller Bench of the Apex Court is bound by the decisions of a larger Bench and that of a Co-equal Bench.[8]
With respect to the significance of precedent, the court in Union of India v. Raghubir Singh,[9] held that-
“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”[10]
[1] https://www.srdlawnotes.com/2015/11/precedent-meaning-definition.html
[2] Id.
[3]http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf (last visited Feb. 1, 2021).
[4] As provided in the case of Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[5] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461.
[6] Ganga Sugar Co.. Ltd., Etc vs State Of U.P. & Others, AIR 1980 SC 286.
[7] State of Punjab v. Surinder Kumar, 1992 (1) SLR 335(SC).
[8] Indian Oil Corporation v. Municipal Corporation, AIR 1995 S.C. 1490.
[9] Union Of India & Anr v. Raghubir Singh, AIR 1989 SC 1933.
[10] Id.