INTRODUCTION
Judicial precedents are an essential source of law. They have enjoyed high authority at all times and in all countries. In the broadest sense, a precedent means a previous decision. A judicial precedent contains itself a principle of law. A judicial precedent is a legal scene of law and speaks with authority.
MEANING OF PRECEDENT
Precedent means:
“Authorities or decision of superior courts to be followed.”
DEFINITION OF PRECEDENT
According to Prof. Austin:
“Precedent is a judicial law or judiciary law.”
CLASSIFICATION OF PRECEDENTS
The precedents are classified into the following four types.
A. Declaratory Precedent:
A precedent that is merely the application of an already existing legal rule is called a declaratory precedent.
B. Original Precedent:
A precedent that creates and applies a new legal rule is called an original precedent.
C. Authoritative Precedent:
Authoritative precedents are those that the judges must follow, whether they approve it or not. These are the legal sources of law, and they establish law in pursuance of a definite rule of law which confers upon them that effect.
D. Persuasive Precedent:
Persuasive precedents are those which the judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve.
ELEMENTS THAT INCREASE THE AUTHORITY OF PRECEDENTS
The following are the circumstances that enhance the binding force of precedents.
1. Unanimity Decision:
Suppose the decision of the court is unanimity. In that case, it will reflect more strength on the face of it, and the value of that decision will increase consensus among judges, adding to the binding force of precedents.
2. Affirmation by Superior Courts:
Affirmation or approval of that decision by a Supreme Court increases the binding force of that precedent and adds to its validity.
3. Participation of Eminent Judges:
Decisions pronounced by eminent and able judges recognized by all sectors enhance the binding force of a precedent. Indeed, the judgment of those judges would be appreciated and considered authoritative.
4. Support of Enacted Law:
At the time of the decision, if judges embodied the law as a precedent, then the precedent gains and adds authority. So, when judges codify a rule as enacted, it is presumed that the precedent is perfect.
5. Confirmed Decision:
A confirmed decision has no ambiguity as in the case of reversal on some different law, which adds to the value of precedent. A confirmed decision possesses more binding force than a controversial decision
6. Decisions made on Learned Arguments:
Decisions are made on learned arguments and reasoning and possess precedent. scholarly angles, increase/enhance the value of
7. Approval of Superior Courts Earlier Decisions:
A precedent’s binding force is enhanced/increased when a lower court and confirmation of the decision of superior courts follow it.
8. Absence of Hesitation and Criticism:
If other courts follow the decision without hesitation and criticism, It will also increase/enhance the binding force of precedent.
9. Approval of same Rank court’s earlier decision:
When a decision is followed by a court of the same rank or affirmed or approved by it, it increases/enhances the binding force of precedent.
10. Appreciation by People:
When there is a positive reaction of people on some precedent, or it receives healthy appreciation from the people of country and world. Then, the binding force of that precedent enhances/increases.
11. Original Precedents:
When a precedent is made to confirm a statute law, which is by the statute and its provision, that precedent will be binding on courts and increases/adds to its validity.
12. Eminence of Lawyers:
Eminence, skill, and good name of lawyers are also essential to increasing/enhancing the binding force of a precedent.
13. Fully Contested:
When cases are fully contested, and the point is thoroughly discussed, the precedent made on such grounds has more force and increases its binding energy.
14. Lapse of Time:
Lapse of time also increases/ adds to the authority of a decision when a precedent is not contested for an extended period and is followed unobstructedly by courts; its binding force enhances/increases and is presumed valid.
15. Number of Judges:
ASeveraljudges declaring a decision also adds to the binding precedent. A precedent set by a full bench of judges is considered better than the force of a precedent set by a single bebar.
16. Frequently followed:
When other courts frequently follow a precedent, its binding force increases/enhances.
17. Fully Argued Decision:
When both parties fully argue a case. While deciding it, a judge has their opinions before him; it is assumed that the decision is not one-sided and based on justice and equity, as both parties were given full opportunity to justify.
ELEMENTS THAT DECREASE THE AUTHORITY OF PRECEDENTS
Following are circumstances that decrease/reduce the binding force of precedent
1. Split Decision:
When the decision is divided among the judges and their opinion is unanimous or majority opinion, it is not valued and will be decreased/reduced.
2. Reversal or Affirmation on a Different Ground:
According to Jessel, HR, when the lower court’s decision is affirmed or reversed on different grounds, it is deprived of all the authority.
3. Abrogated Decisions:
A decision ceases to be binding if a state as the statutory rule inconsistent with it is subsequently enacted or it is reversed or overruled by a higher court
4. Earlier Decisions of Superior Courts:
A precedent reduces/decreases its binding force if the court that decided it overlooked an inconsistent decision of a higher court. Such a decision is said to be unstable.
5. Inconsistency:
A court is not bound by its earlier decisions that conflict with one another. The lower court may refuse to follow the later decision because it was arrived at per in curiam.
6. Decision Badly Criticized:
Suppose any decision is severely criticized by lawyers, law students, jurists, etc., etc. Hen, its binding force is extinguished.
7. Ignorance of Statute:
Suppose precedent is rendered in ignorance of a statute or a rule having the force of a slaw. Then, the binding power precedent is reduced.
8. Expert Decisions:
If the decision is declared without the defendant respondent’s other party, it will never be upheld as one-sided. Hence, it will not be presumed to be a forceful precedent.
9. Erroneous Decisions:
Suppose the decisions are based on wrong principles or conflict with fundamental principles of common law in that case. In that case, such an erroneous decision can be overruled by higher courts and reduce the validity of a precedent.
10. Precedent sub-silento:
When a particular point in a decision is not taken into the court’s notice or fully argued by a counsel, the precedent reduces its binding force.
11. Decisions that Create Anarchy:
Those decisions that create anarchy in the state or unrest among citizens are often annulled or repealed and reduce/decrease the binding force of that precedent.
12. Summary Proceedings give decisions:
If summary proceedings give the decision without giving the full opportunity of arguing to parties, it will also decrease/reduce the binding force of precedent.
13. Decisions Based on Doubts:
If the decision reflects uncertainties and is doubtful, it will reduce/decrease the binding force of precedent.
14. Evasion of Procedure:
While announcing the decision, the court supersedes the procedure of law, then that decision will have reduced the binding force of the precedent
15. Decisions Reflecting Injustice:
If the judge’s decision is not based on justice, it will reduce/decrease the binding force of precedent.
16. Decisions Avoiding Inconveniences and Hardships:
If the decision is given to avoid inconveniences and hardships and has no reasoning, it also loges / reduces the binding force of the precedent
17. Decisions Based on Compromise:
If both parties compromise outside the court and the case is not fully argued due to compromise. Then, the binding force of precedent is destroyed and reduced/decreased.
18. Decision not followed for a Long Time
Laps of time do not extinguish a precedent, but it may be destroyed/reduce its binding force if lower courts do not follow it for a long time based on justifiable reasons.
19. Decisions of Equally Divided Courts:
When an appellate court is equally divided, the practice is to dismiss the appeal and hold that the decision was appealed from a correct judgment. Then, this precedent loses its binding force.
20. Absence of Arguments:
If a decision lacks learned arguments and reasoning, it also reduces the binding force of precedent.
21. Difference of Opinion:
If there is a difference of opinion regarding the decision, it reduces the binding force of precedent.
CONCLUSION
A precedent is purely constitutive and is no degree abrogative. Where there is a settled rule of law, the court must follow it without question, and the courts cannot amend or repeal the existing law.
FAQs
Discuss in detail the circumstances that tend to increase the authority of a precedent and those that decrease its jurisdiction.
(2019-A five years, 2018-A, 2014-A, 2015-A)
Define precedent. Explain the theories/ classification of precedent.
(2010-S)
Compare and contrast legislation with precedent as a source of law.
(2010-A)
