"Precedent literally means a rule followed or a principle applied previously by a competent authority under similar facts and circumstances". If a previous decision by a court is taken as a basis or source for deciding the case under similar facts and circumstances, It is called judicial precedent. In general sense, precedence means 'some set pattern guiding the future conduct. The fundamental principle behind the precedent is that like cases should be treated alike. In judicial Field it means the guidance or authority of past decision for future cases. The importance of precedent is precedent is recognized by both ancient law and modern law.
In every country , there is one Supreme authority having exclusive power of judicial authority . In India the Supreme Court having such authority. The law declared by the Supreme Court is binding upon all the other Courts of India including High Courts under Article 141 of the Indian Constitution. High Court is the Highest tribunal of the State. The decision of High Court are Binding on all the Subordinate Courts.
Meaning and Definition :
"Precedent, Which are enforceable by law are called judicial precedents." According to Oxford Dictionary 'Precedent means " A previous instance or case which is or may be taken as an example of rule for subsequent cases" . (Or by which some similar act or circumstances may be supported or justified )
a) Bentham : According to Bentham 'Precedents are Judge made laws.
b) Gray : According to Gray , " A precedent covers everything said or done which furnished a rule for subsequent practice.
c) Keeton : In the words of Keeton ' A Judicial Precedent is a judicial decision to which authority has in some measure been attached
(See Also...Kinds of Precedent)
1) Ancient India -
In ancient India we find very little trace of the theory of Precedent. The judicial cases in those days were not very complicated in nature, nor were the laws. The ancient judge was not, therefore expected to lay down any new points or novel dicta. In the medieval period also the doctrine of Precedent was not in vogue. It is only after the British rule was established that the theory of Precedent started taking shape and through the passage of time it acquired great significance.
2) Government of India Act 1935 -
Under the Government of India Act 1935, a Federal Court was established in India, Section 212 of the Government of India Act :
"The law declared by the Federal Court and by any judgement of the Privy Council shall, so far as applicable, be recognized as binding on and shall be followed by all Courts in British India, and so far as respects the application and interpretation of this Act or any order in Council there under any matter with respect to which the federal legislature has power to make laws in relation to the State, in any Federal state"
Thus, the decisions of the Federal Court were made binding on all the subordinate Courts in India. The Privy Council, however, was to be the supreme judicial authority. and it was not bound by its own decisions.
3) Attainment of Independence -
After attainment of Independence, the Privy Council no longer remained the supreme appellate Court for the Indians and the Federal Court was abolished. The Constitution of India established the Supreme Court as the final appellate Court. In the States there are High Courts and in the district there are district Courts. In civil matters, the court of first instance is the Munsif's Court and in criminal matters that of the Magistrate.
4) High Courts -
Judgements of the particular High Court are binding on all subordinate to it. For the lower Courts within the jurisdiction of another High Court, the judgement of another High court have only a persuasive value. In case of a conflict between the decisions of two High Courts, the lower court will follow that pronounced by the High court which controls it.
In the high Court, the smallest Bench consists of a single Judge. A Bench of two Judges is called a Division bench and one compressing three or more Judges is called a Full Bench. The decision of a larger Bench is binding on a smaller Bench. Whereas a Bench has no mandate over another Bench of equal authority. But consideration of judicial propriety and docurum demand that judges of co-ordinate jurisdiction in a High Court should not overrule one another's decisions. The usual procedure in case of difference of opinion with an earlier decision of the same Court is to refer the question to a larger Bench.
The High Courts inter se possess equal authority. In actual practice however, judgement of other High Courts are diligently traced and cited in judgements. Full Bench decision of other High Courts are looked upon with great reverence.
The decision of the erstwhile Federal Court are binding on the High Courts only so far as they do not clash with those of the Supreme Court.
Article 225 of the constitution of India says :
"Subject to the provisions of this Constitution and to the provision of anus law of the appropriate legislature made by virtue of the powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in , any existing High Court...Shall be the same as immediately before the commencement of this article also refer to case law. Therefore, the pronouncements of the pre-Constitution Privy Council shall be binding on the High Courts unless they are in conflict with the rulings of the Supreme Court. If the Supreme Court overrides a pre-Constitution Privy Council decision, it would lost all force. In case of a conflict between a judgment of the pre-Constitution Privy Council and that of the federal court, the former will prevail.
The Supreme Court is the highest judicial tribunal in India. The law declared by it shall be binding on all Courts in India, excluding however the Supreme Court itself. The Supreme Court is not bound by its own decisions, or by those of the Privy Council or federal court.
5) Power of Supreme court under Article 141 of the Constitution -
The authority of the Supreme Court over all other Courts in India has been given expression in Article 141.
It says that : "The law declared by the Supreme Court shall be binding on all the Courts within the territory of India " The term 'law declared' has been interpreted not only to be ratio decidendi of a decision which has been accorded a binding force, but also to include and obiter dictum, provided it is a point raised and argued .
(See also.... Difference between Ratio Decidendi and Obiter Dicta )
6) Relevant case law : The following case laws illustrate the significance of judicial precedents in the Indian Legal System.
1) T Sareetha V/s Venkata subbaiah. Air 1983 A.P.
2) Smt Harvider Kaur V/s Harmander Singh , AIR 1984 Del.66
3) Saroj Rani V/s Sudarshan Kumar , AIR 1984 SC 1562.