Precedent-JURISPRUDENCE

Kinds Of Precedent Authoritative Precedent Authoritative Precedent is one which judges must follow whether they approve it or not .Authoritative Precedent are the legal sources of law . An authoritative precedent comes from the superior court or senior court followed by its subordinate court. A lower court /Inferior court are bound to follow the rulings of the higher court if the Judge in the present case disagrees with the legal principle. The supreme court is authoritative for all courts in India&igh !ourt to all subordinate courts . A court is bound to follow precedent of that Jurisdiction only if it is directly in point .”Directly in Point “ Means a" #uestion #uestion resolved resolved in in precedent precedent case same as resolved resolved in pending case case  b" $esolution of that %uestion necessary to the disposition o the precedent case . c" ignificant ignificant facts of precedent precedent case present present in pending pending case. case. d" 'o additiona additionall facts in pending pending case to to be treated treated as significan significantt Authoritative Precedent in (ngland are the decisions of superior courts of justice. Authoritative Precedent are of ) *inds I. Absolut Absolutely ely Author Authoritat itative ive Precede Precedent nt In this case they have to be followed by the judges even if they do not approve of them. They are entitled to implicit obedience. II. onditi onditional onal Author Authoritat itative ive Pre Precede cedent nt In this case the courts can disregard them under certain circumstances .+rdinarily they are binding but under special circumstances they can be disregarded.The court is entitled to do so if the decision is a wrong one The decision must be contrary con trary to law and reason. A conditional Precedent can be disre!arded either by dissentin! or by overrulin! Overrullin!  ,In this case the precedent overruled o verruled is authoritatively pronounced to be wrong so that it cannot be followed by the court in the future Dissentin! -A court declines to follow the precedent and lays down law in a different sense The conflict thus created can be resolved only by a superior tribunal when a occasion arises.Till that is done the law remains in a state of uncertainity . In India  the decision of single Judge of a igh !ourt is only conditionally authoritative and may be dissented from by another single Judge or it may be overruled by a ivision 0ench . If one Division "ench dissents fro# another Division "ench $Procedure to be followed. %&'esha##a (s. (en)ata *arasi#ha +ao ,-/0 1 - M2J /00 ,3"14 12hile a Judge of a igh !ourt sitting alone is not bound on a %uestion of law by the decision of another Judge sitting alone this principle go es further .The ivison 0ench is the final court of appeal in an Indian igh !ourt unless the case is reffered reffered to a full bench  and one division bench should regard itself bound by the decision of another division bench on a %uestion of law .In (ngland where there is the !ourt of Appeal  the divisional courts follow the decisions of other divisional courts on the grounds of judicial comity .If a division bench does not accept as correct the decision on a %uestion of law of another division bench  the only right and proper course to adopt is to refer the matter to a full bench for which the rules of this court provide .If this course is not adopted the courts subordinate to the courts are left without guidance.3 5uestion 67hether the decision of a full bench of the 8i!h ourt can be overruled by another 3ull "ench consistin! of lar!er nu#ber of 9ud!es 6&*in!appa (s :#peror ,/-1"o# /0;4 hief Justice "ea#ount  e4pressed the view that the decision d ecision of a full bench  unitil u nitil it is overruled by the privy council  is absolutely authoritative.3 There is no doubt that a full bench can overrule a division bench and that full bench must consist of 5 or more judges - but it would seem anamolous to hold that a later full bench b ench can overrule an earlier full bench merely because the later  bench consistes of more judges than earlier .If that were the rule  it would mean that a bench of seven

 judges  by a majority of four to three could overrule a unanimous decision of abench of si4 judges though all judges were of coordinate jurisdiction.3 &+a9a of Mandasa (s. Ja!a##ay)ula < I+ -=> Mad ?-> 4%Madras 8i!h ourt 6(iew 6A full bench #ay be overruled by a nu#erically stron!er full bench.%7allace < J 1The rules on the appellate side permit a division bench to refer any matter to a full bench and there are precedents for a division bench referring the decision of a full bench for consideration to a larger bench .3The proper procedure to be adopted is 1to refer the matter to the chief Justice and it is then for him to consider whether the %uestion % uestion should be reconsidered by a larger bench .3 Cessante ratione legis cessat lex ipsa – means means when reason for any particular p articular law ceases so does the law itself.Thus according to 0lac* stone 6A precedent must be followed if they aren7t absurd /unjust.

A court of superior Jurisdiction can overrule the decision of a subordinate court .A court of subordinate jurisdiction can simply dissent from another court.ie a coordinate court can refuse to follow the precedent of another court and also lay down a different rule on the same point .The conflicts 0/2 the ) coordinate courts can be resolved resolved by a superior court In India  the decision of ingle  ingle judge of a igh !ourt !ou rt is only a conditionally authoritative  precedent .Another judge of the same igh !ourt can differ from him .A division bench of the same igh !ourt can overrule the same .A . A decision decision of the full bench of same court is binding on a bench consisting of two or more judges. &K..*a#biar (s. 'tate of Madras AI+ -@= Mad =@-4%8I:3 Justice 'ubba +ao 1A single Judge is bound by the decision of a division bench e4ercising appellate  jurisdiction .If there is a conflict of bench decisions  he should refer the the case to a bench of two judges who may refer it to a full bench .A single judge cannt differ from a division bench unless a full bench or  supreme court has overruled that that decision specifically or laid laid down a different law on the same point .0ut he can7t ignore a bench decision on the ground that some observations of supreme court made ina different conte4t might indicate a different line of reasoning .A division bench must ordinarily respect another division bench of coordinate jurisdiction - but if it differs  the case should be reffered to a full  bench.3

In (ngland The decisions of .+.8. are absolutely binding on all courts &.+.8 itself itself bound  by its own decisions The court of Appeal is bound by its own decisions or by those of coordinate  jurisdiction .here are = eBception to this rule . 1. If there are two conflicting decisions of a court  it must decide which of the two it should follow . 2. If the decision decision of a court is in conflict conflict with the .+.8  it must must refuse to follow it even if it is not e4pressly overruled by the decision of .+.8. 3. The court is not bound to follow a decision of its own if it is satisfied that the decision was given  per incuriam .

persuasive precedent 6 It It is merely historical  persuasive precedent is one which the Judges are under no obligation to follow but which they will ta*e into consideration and to which they will attach great weight as it seems to deserve. It depends for its influence upon its own merits not upon any legal claim which it has recognition 'ource of persuasive precedent a" 2hen a court lower lower in hierarchy hierarchy agreed agreed with and followed followed the the same reasonings reasonings of Appeal Appeal in decision,9an guilty of raping his wife :$;$ :$;$ -=4 62ord Dannin!  6;iewB .+.8 could disregard a prior decision of its own which conflicts with fundamental principles of common law . In 'cruttons 2td (s.Midland 'ilicones 2td &,-?>1A //?4  B.+.8 by a majority of four to one disregarded own previous decision in :lder < De#pster and o#pany (s. Paterson ochonis and co#pany &,->/1 A @>>4. In so#e instances courts will refuse to overrule decisions which they consider to be wron! but overrule which have stood the test of ti#e. ourt donLt overrule well established precedents affecting proprietary rights or affordings •  particular defences to criminal charges ourts overrule erroneous decisions of long standing which involve injustice to the citiGen • ?or"which concern area of law such as ta4ation  where it is important for citiGen to e stablish what the correct law is.

The supre#e ourt of India  has also differed from its previous decisions in many cases .In "en!al I##unity o.2td (s.'tate Of  0ihar  0ihar 6eld 6There is nothing in our constitution which prevents the supreme court from departing from previous decision if it is convinced of its error and its baneful effect on the general interests of the public. 'A+: D:I'I' 'tare Decisis6see the decisions $ to stand by past decision. This is *nown as 9udicial precedent. “'tare Decisis et *on 5ueita Movere”% tand by what has been decided and donot unsettle the established. 'tare Decisis +ule  6A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases.This rule is based on e4pediency and public policy .Though it is followed by courts it is not applicable in all cases.The reason is that  previous decisions should not be allowed to perpetuate a wrong if the court is convinced that the  previous decision is wrong. tare ecisis $ule is not so so imperative /infle4ible that it cannot be departed from but its application must be determined in each case by discretion of the court . Ori!in  6 There was no doctrine of stare decisis as there was no reporting reporting of the decisions of the 8 courts.It was in -  century the decisions of (4che%uer courts came to be reported in (ngland and were given a binding force.In B The decision of upreme court gave a new interpretation to Article >- and -/  .The new dimension of Articles )< and