Precedent and its kinds

1. Precedent
Precedent is meant by anything said or done which is quoted and cited as authority for
subsequent conduct. Precedent is created by judicial decision pronounced by courts which may
be given either by a superior or a subordinate Court. A judicial decision is a precedent when is
creates a new rule; otherwise it is a judgment as between the parties.

2. Nature of Precedent
A precedent is purely constitutive and in no degree abrogation. This means that a judicial
decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of
the judges to follow the same. They cannot substitute their opinions for the established rule of
law.
Precedent occupies in important position on English Law. Much of the English law has been
created by the Judges. It is only in the British legal system that precedent is recognized as of
binding authority if before the time of James. Precedents were cited merely indicating true law.

3. Binding force of Precedent

Precedent has binding force because:-
 Administration of Justice has been concentrated in the hands of judges.
 The judges as a body of legal experts can properly law down the law for the bar.
 When a case is decided, it is presumed that the decision is correct. A point once decided
between the parties become a re judicta and cannot again be litigated upon, even if a decision be
incorrect.
 The rule that the law as previously laid down must be followed induces confidence in the
minds of the litigants.
 Administration of justice becomes even handed and fair for a rule already laid down is
followed in all subsequent cases.

4. Classification of Precedent
Precedents may be classified into three divisions; (i) according to the nature of the rule laid
down, (ii) according to the influence exercised by them on the course of future decisions, and
(iii) according to the nature of the authority. Those under (i) may be described as declaratory and
original precedents, those under (ii) as authoritative and persuasive precedents, and those under
(iii) as precedents of absolute authority and of condition authority. A seriatim description of
these forms is given below;

a. Declaratory and Original Precedents (according to the nature of the rule laid down)
i. Declaratory precedents
Declaratory precedents are those which do not lay down a new rule of law but only declare a
principle of law already existing. When the law is already sufficiently well evidence, as when it
is embodied in a statute or set forth with fullness and clearness is some comparatively modern
case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our
case law. Such precedents merely declare the law.

ii. Original Precedents

Original precedents are those which lay down a new rule of law. These are the outcome of the
internal exercise by the courts of their privilege of developing the law while sitting to administer
it. Such precedents make the law.

b. Authoritative and persuasive precedents (according to the influence exercised by them on

the course of future decisions)
i. Authoritative precedents
Authoritative precedents are those which must be followed whether the Judge deems the
principle laid down as correct or not. Thus, the decisions of the High Court are authoritative
precedents for the subordinate Courts and the decisions of the Supreme Court are authoritative
precedents for the High Courts and all other subordinate Courts.
ii. Persuasive precedents
Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of
Indian high courts and the Supreme Court of India or of other Foreign Courts are merely
persuasive precedents for the Courts in Pakistan.

c. Precedent of absolute authority and of conditional authority (according to the nature of the
authority)
i. Precedents of absolute authority
Precedents of absolute authority are those which are absolutely binding, however, unreasonable
or erroneous they may appear to be. In this sense also the precedents of superior Courts are
precedents of absolute authority for the inferior or subordinate courts. Similarly, a decision of the
Full Bench is binding on a Bench consisting of two or more judges of the same and subordinate
courts.

ii. Precedents of conditional authority

Precedents of conditional authority are those which are binding but not absolutely. Thus, a
decision of a single judge of the High Court is only a conditional authoritative precedent for a
Judge of the same or another High Court.

INTRODUCTION
Judicial precedent means the process whereby judges follow previously decided cases where the facts are
of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare
decisis i-e, to stand by the decided. In practice, this means that inferior courts are bound to apply the legal
principles set down by superior courts in earlier cases. This provides consistency and predictability in the
law.

RATIO DECIDENDI AND OBITER DICTUM

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision)
and obiter dictum (something said by the way).

RATIO DECIDENDI –

Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the
point in a case that determines the judgement"[1] or "the principle that the case establishes".[2]
In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a
judgment on which the outcome of the case depends.

The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers
judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he
applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).

OBITER DICTUM – The judge may go on to speculate about what his decision would or might have been
if the facts of the case had been different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases
because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum
may be of persuasive (as opposed to binding) authority in later cases.
A difficulty arises in that, although the judge will give reasons for his decision, he will not always say what
the ratio decidendi is, and it is then up to a later judge to “elicit” the ratio of the case. There may,
however, be disagreement over what the ratio is and there may be more than one ratio.

RATIO DECIDENDI

Ratio Decidendi is a Latin phrase meaning ‘the reason’ or ‘the rationale for the decision’. The

Ratio Decidendi is ‘the point in a case that determines the judgement’ or ‘the principle that the

case establishes’. Ratio Decidendi literally means ‘reason for deciding’. In the judicial context, it

is the reason which is cited for arriving at a decision in a case. Such reason is not the law that is

getting attracted in the contemporary case but is the necessary notion which helps the court

arrive at a particular decision. It is this part of the precedent which has to be followed by the

courts in subsequent decisions but not the general observations of the court. There is a dispute of

law involved with respect to the reasoning given by the judgment and not a dispute of fact. As

the facts cannot be similar in other cases, the observations pertinent to the facts made by the

judge cannot be binding in the other cases though the similar laws are attracted but the reasons

for arriving at a decision are binding. In case there are multiple reasons for deciding in a manner,

all those reasons will be binding in the subsequent cases. In the case of Commissioner of Income

Tax vs M/s Sun Engineering Works Private Limited AIR 1993, SC 43, the Hon’ble Apex Court

held that, “while applying the decision to a later cases, the court must carefully try to ascertain

the true principle laid down by the decision of the Supreme Court and not to pick out words or

sentences from the Judgment divorced from the context of question under consideration by the

court to support their reasoning.“ If the judgment gives no reason for deciding a point, this would

not be binding because what is binding is the reasons for the decision.
OBITER DICTA

Obiter dictum is the Latin phrase meaning “other things said”, that is, a remark in a judgment

that is “said in passing”. It is a concept derived from English common law, whereby a judgment

comprises only two elements: Ratio Decidendi and Obiter Dicta. For the purposes of judicial

precedent, Ratio decidendi is binding, whereas obiter dicta are persuasive only. However,

obiter dicta of the Supreme Court are binding on all courts and Tribunals within the territory of

India. A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of

the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law

issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations

made by a judge that, although included in the body of the court’s opinion, do not form a

necessary part of the court’s decision. In a court opinion, obiter dicta include, but are not limited

to, words “introduced by way of illustration, or analogy or argument”. Unlike ratio decidendi,

obiter dicta are not the subject of the judicial decision, even if they happen to be correct

statements of law. The so-called Wambaugh’s Inversion Test provides that to determine whether

a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether

the decision would have been different, had the statement been omitted. If so, the statement is

crucial and is ratio; whereas if it is not crucial, it is obiter.

STARE DECISIS

The principle by which judges are bound to precedents is known as Stare Decisis (a Latin phrase

with the literal meaning of “to stand in the-things-that-have-been-decided”) The doctrine under

which courts adhere to precedent on questions of law in order to insure certainty, consistency,

and stability in the administration of justice with departure from precedent permitted for

compelling reasons (as to prevent the perpetuation of injustice). Stare Decisis is a doctrine used

in all court cases and with all legal issues. A doctrine is simply a principle, or an instruction, but

it’s not necessarily a rule that cannot ever be broken. The Doctrine of Stare Decisis means that

courts look to past, similar issues to guide their decisions. The past decisions are known as

precedent. Precedent is a legal principle or rule that is created by a court decision. This decision

becomes an example, or authority, for judges deciding similar issues later. Stare Decisis is the

doctrine that obligates courts to look to precedent when making their decisions. These two

principles allow American law to build case-by-case, and make our legal system a common law

system. KEY DIFFERENCE IN RES-JUDICATA AND STARE DECISIS Res judicata means

“a thing adjudicated”; “a case already decided”; or “a matter settled by a decision or judgment”.

Stare decisis means “to stand by decided cases”, “to uphold precedents”, “to maintain former

adjudications”, or “not to disturb settled law”. Res judicata binds parties and privies, while stare

decisis operates between stranger also and binds courts from taking a contrary view on the point

of law already decided. Res judicata presupposes judicial finding upon the same facts as

involved in subsequent litigation between the same parties. Stare decisis applies to same

principle of law to all parties.

RES JUDICATA

Res Judicata is a phrase which has been evolved from a Latin maxim, which stand for ‘the thing

has been judged’, meaning there by that the issue before the court has already been decided by

another court, between the same parties. Therefore, the court will dismiss the case before it as

being useless. Res Judicata as a concept is applicable both in case of Civil as well as Criminal

legal system. The term is also used to mean as to ‘bar re-litigation’ of such cases between the

same parties, which is different between the two legal systems. Once a final judgment has been

announced in a lawsuit, the subsequent judges who are confronted with a suit that is identical to

or substantially the same as the earlier one, they would apply the Res Judicata doctrine ‘to

preserve the effect of the first judgment’. This is to prevent injustice to the parties of a case

supposedly finished, but perhaps mostly to avoid unnecessary waste of resources and time of the

Judicial System. And, therefore, the same case cannot be taken up again either in the same or in

the different Court of India. This is just to prevent them from multiplying judgments, so a

prevailing plaintiff may not recover damages from the defendant twice for the same injury.