In every legal system, there exists a judicial organ. The main function of the judicial organ is to adjudicate disputes between the parties. It is the judges who interpret the law laid down by the legislature, and give decisions accordingly. Thus, the previous decisions and judgements play a significant role in the Indian Legal System. Oxford Dictionary defines “Precedent” as a previous instance or case which is taken as an example of a rule for subsequent cases.
Meaning of ‘Precedent’-
The guidance or authority of past decisions which lays down some new rule or principle is called judicial precedent. Salmon is of the view that doctrine of precedent has two meanings – the first being in a loose sense, in which precedent includes merely reported case laws which may be cited and followed by the courts. The second being in a strict sense, according to which, precedent means those case laws which not only have a great binding authority but must also be followed by the courts.
Article 141 of the Indian Constitution states that the law declared by the SC shall be binding on all courts within the territory of India. Thus, the same confer constitutional status on the doctrine of precedent.
Theories of Precedent
Declaratory Theory of Precedent
According to this theory, the judges never make law; they merely declare what the existing rule of law is. This view is accepted by Blackstone.
Constitutive Theory of Precedent
Salmond and Bentham are the main supporters of this theory. They strongly maintain that judges do make laws but they cannot alter existing principles. Where there is a settled rule of law, on any point, the judges have no authority to change it for a new law of their own making.
Doctrine of Precedent in India
Doctrine of Precedent is recognized in the Indian Legal System. The main principles of Doctrine of Precedent as applicable in India are:
- All inferior and subordinate courts are bound by the decision of the HC to which they are subordinate. The high court can bind only those inferior courts which are within its territorial jurisdiction.
- The decision of the larger bench is binding on smaller as well as the subordinate bench.
- In case there is a conflict between the decisions of two co-equal benches of the same HC, the decision later in time should be followed. However, in Indo Swiss Time Ltd. V. Umrao, the apex court observed that the authority must be considered on the basis of rational view and logically expressed therein and not merely coincidental situations.
- The decision of one HC is only of persuasive value for the other High Court. Thus, the decision of one HC is not binding on the other HC.
- The decisions of Federal Courts are binding on the High Courts unless they are overruled by the SC.
- Supreme Court is the highest court of the Indian Territory. Decisions of the SC are binding all high courts and subordinate courts of India.
Each court is absolutely bound by the decision of the court it is subordinate to. What should also be noticed is that it is the ratio decidendi of each case which goes on to become a principle.