vustudents
09-06-2011, 11:50 PM
Q . Discuss different kinds of precedents. (19996)
1. Introduction:
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent is one precedents contains I itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force.
2. Definition Of Precedent:
I. According To Prof .Osborn:
“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”
II. According To Prof. keeton:
“A judicial precedent in a judicial decision to which authority has in some measure been attached.”
3. Nature Of Precedents:
A precedent is purely constitutive and in no degree abrogative. 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.
4. Binding Authority Of precedents :
The binding authority of precedent is based on the principle of stare decisis, which means
(i) To abide by the law already decided
(ii) To follow the law already decided
5. Reasons For Binding Authority Of Judicial Precedents:
Following are the reasons why precedents have been given the binding authority:
(i) Justice is administered by a body of judges.
(ii) The judges being legal experts are pre-eminently fixed to lay down the law of the bar.
(iii) A case once decided in presumed to be correct so long as it not reversed by the higher Court.
(iv) The rule that the law as laid down in previous case must be followed induces confidence in the minds of litigants.
(v) That which is delivered in judgment must be taken for established truth.
(vi) Law becomes certain and known.
(vii) It is conducive to social development administration of justice becomes fair.
(viii) Precedents is proof of custom.
(ix) It promotes uniformity and certainty of legal administration.
(x) It shows respect for the opinions and decisions of one , s predecessors.
(xi) That convenience demands once a question is decided it should not be reargued every time it arises.
6. Kinds Of Precedents:
Following are the different kinds of precedents:
I. Authoritative and persuasive
II. Declaratory and original
I. Authoritative And Persuasive:
(i) Authoritative precedents:
According to Salmond an authoritative precedent is one which judges must follow whether they approver of it or not. These are the legal sources of law and establish law in pursuance of definite rule of law which confers upon them that effect.
Kinds of Authoritative precedents:
Authoritative Precedents are of two kinds:
(a) Absolute Authoritative precedents
(b) Conditional Authoritative precedents.
(a) Absolute Authoritative precedents:
Absolute authoritative precedents are those which have to be followed by the judges even if they do not approve of them.
Example:
The decisions of the House of Lords are absolutely binding on all the Courts in England.
(b) Conditional Authoritative precedents:
A conditional authoritative precedent is one which though ordinarily binding on the Court to which it is cited, but is liable to be disregarded in certain circumstances.
Example:
The decision of the single judge of a High Court is absolutely authoritative for the subordinate judiciary but is only conditionally authoritative, if cited before the Division bench of the High Court.
(ii) Persuasive precedents:
A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration. It is a historical source of law and will be followed only if its reasoning is sound flawless.
Example:
The decisions of superior of other countries I .e, India, England etc.
II. Declaratory And Original Precedent:
(i) Declaratory precedent:
According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. The rule is applied because it is already law.
(ii) Original Precedent:
An original precedent is one which creates and applies a new law. It is law for the future because it is now applied. They along develop the law of the country.
7. Circumstances Which Destroy Or Weaken The Binding Force Of Precedents:
There are certain exceptions to the rule that precedents are binding, which are as under:
(i) Abrogated Decision:
A decision ceases to be binding if a statute statutory rule inconsistent with it is subsequently enacted or if it is reversed or over-ruled by a higher Court.
(ii) Affirmation or reversal on a different ground:
A decision which affirmed or reversed on another point is deprived of any absolute binding force which it night otherwise have had.
Example:
A case is decided in High Court on ground ‘A’ and then goes on a appeal to the supreme Court which decided it on ground ‘B’ nothing being said upon ’A’ . it loses its binding force as far as the ground ‘A’ concerned.
(iii) Ignorance of statute:
A precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute i.e., delegated legislation.
(iv) Inconsistency with earlier decisions of higher Court:
A precedent loses its binding force if it is inconsistent with the decision of higher Court.
Example:
If the high Court decides a case in ignorance of a decision of Supreme Court, the decision of High Court is not binding on any lower Court.
(v) Inconsistency between earlier decisions same rank:
Where authorities of equal standing are in conflict, a lower Court has the freedom to pick and choose between them. It loses its binding force.
(vi) Precedents not fully argued:
When a particular point involved in a decision is not taken notice of and is not argued by a counsel, the Court may decide in favour of one party, whereas if all the points had been put forth, the decision may have been in favour of the other party. Such a rule is not an authority on the point which had not been argued.
K. Balkrishna Rao Vs. Haji Abdullah Sait:
“It was observed that the binding force of the precedents dose not depend on whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided by the supreme Court.”
(vii) Decisions of equally divided Courts:
Where an appellate Court is equally divided, the practice is to dismiss the appeal and holds that decision appealed form is the correct one.
(viii) Erroneous decisions:
Decisions which are founded on wrong principles loses its binding force may be over-ruled by higher Courts;
(ix) Decisions not followed for a long time:
If a precedent is not following for a long time, its authority starts deteriorating.
(x) Ex-parte decision:
Decisions made in the absence of other party is an ex-parts decisions and such decisions weakens its binding force.
(xi) Decisions criticized by lawyers etc.:
Decisions which are criticized by the lawyers, judges etc., they tends to be weaken.
8. Conclusion:
To conclude, I can say, that the precedents are an important source of law. The operation of precedents are an important is based on the presumption that judicial decisions are correct. Only that precedent is binding on the Court which is on all fours with the case before it. If the facts in both the cases are the same, the decision is said to be on authority. If the facts of the case are different and the judges merely acts on the analogy pervious rule, he expounds a new principle of law and his decision is said to be on principle.
1. Introduction:
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent is one precedents contains I itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force.
2. Definition Of Precedent:
I. According To Prof .Osborn:
“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”
II. According To Prof. keeton:
“A judicial precedent in a judicial decision to which authority has in some measure been attached.”
3. Nature Of Precedents:
A precedent is purely constitutive and in no degree abrogative. 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.
4. Binding Authority Of precedents :
The binding authority of precedent is based on the principle of stare decisis, which means
(i) To abide by the law already decided
(ii) To follow the law already decided
5. Reasons For Binding Authority Of Judicial Precedents:
Following are the reasons why precedents have been given the binding authority:
(i) Justice is administered by a body of judges.
(ii) The judges being legal experts are pre-eminently fixed to lay down the law of the bar.
(iii) A case once decided in presumed to be correct so long as it not reversed by the higher Court.
(iv) The rule that the law as laid down in previous case must be followed induces confidence in the minds of litigants.
(v) That which is delivered in judgment must be taken for established truth.
(vi) Law becomes certain and known.
(vii) It is conducive to social development administration of justice becomes fair.
(viii) Precedents is proof of custom.
(ix) It promotes uniformity and certainty of legal administration.
(x) It shows respect for the opinions and decisions of one , s predecessors.
(xi) That convenience demands once a question is decided it should not be reargued every time it arises.
6. Kinds Of Precedents:
Following are the different kinds of precedents:
I. Authoritative and persuasive
II. Declaratory and original
I. Authoritative And Persuasive:
(i) Authoritative precedents:
According to Salmond an authoritative precedent is one which judges must follow whether they approver of it or not. These are the legal sources of law and establish law in pursuance of definite rule of law which confers upon them that effect.
Kinds of Authoritative precedents:
Authoritative Precedents are of two kinds:
(a) Absolute Authoritative precedents
(b) Conditional Authoritative precedents.
(a) Absolute Authoritative precedents:
Absolute authoritative precedents are those which have to be followed by the judges even if they do not approve of them.
Example:
The decisions of the House of Lords are absolutely binding on all the Courts in England.
(b) Conditional Authoritative precedents:
A conditional authoritative precedent is one which though ordinarily binding on the Court to which it is cited, but is liable to be disregarded in certain circumstances.
Example:
The decision of the single judge of a High Court is absolutely authoritative for the subordinate judiciary but is only conditionally authoritative, if cited before the Division bench of the High Court.
(ii) Persuasive precedents:
A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration. It is a historical source of law and will be followed only if its reasoning is sound flawless.
Example:
The decisions of superior of other countries I .e, India, England etc.
II. Declaratory And Original Precedent:
(i) Declaratory precedent:
According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. The rule is applied because it is already law.
(ii) Original Precedent:
An original precedent is one which creates and applies a new law. It is law for the future because it is now applied. They along develop the law of the country.
7. Circumstances Which Destroy Or Weaken The Binding Force Of Precedents:
There are certain exceptions to the rule that precedents are binding, which are as under:
(i) Abrogated Decision:
A decision ceases to be binding if a statute statutory rule inconsistent with it is subsequently enacted or if it is reversed or over-ruled by a higher Court.
(ii) Affirmation or reversal on a different ground:
A decision which affirmed or reversed on another point is deprived of any absolute binding force which it night otherwise have had.
Example:
A case is decided in High Court on ground ‘A’ and then goes on a appeal to the supreme Court which decided it on ground ‘B’ nothing being said upon ’A’ . it loses its binding force as far as the ground ‘A’ concerned.
(iii) Ignorance of statute:
A precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute i.e., delegated legislation.
(iv) Inconsistency with earlier decisions of higher Court:
A precedent loses its binding force if it is inconsistent with the decision of higher Court.
Example:
If the high Court decides a case in ignorance of a decision of Supreme Court, the decision of High Court is not binding on any lower Court.
(v) Inconsistency between earlier decisions same rank:
Where authorities of equal standing are in conflict, a lower Court has the freedom to pick and choose between them. It loses its binding force.
(vi) Precedents not fully argued:
When a particular point involved in a decision is not taken notice of and is not argued by a counsel, the Court may decide in favour of one party, whereas if all the points had been put forth, the decision may have been in favour of the other party. Such a rule is not an authority on the point which had not been argued.
K. Balkrishna Rao Vs. Haji Abdullah Sait:
“It was observed that the binding force of the precedents dose not depend on whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided by the supreme Court.”
(vii) Decisions of equally divided Courts:
Where an appellate Court is equally divided, the practice is to dismiss the appeal and holds that decision appealed form is the correct one.
(viii) Erroneous decisions:
Decisions which are founded on wrong principles loses its binding force may be over-ruled by higher Courts;
(ix) Decisions not followed for a long time:
If a precedent is not following for a long time, its authority starts deteriorating.
(x) Ex-parte decision:
Decisions made in the absence of other party is an ex-parts decisions and such decisions weakens its binding force.
(xi) Decisions criticized by lawyers etc.:
Decisions which are criticized by the lawyers, judges etc., they tends to be weaken.
8. Conclusion:
To conclude, I can say, that the precedents are an important source of law. The operation of precedents are an important is based on the presumption that judicial decisions are correct. Only that precedent is binding on the Court which is on all fours with the case before it. If the facts in both the cases are the same, the decision is said to be on authority. If the facts of the case are different and the judges merely acts on the analogy pervious rule, he expounds a new principle of law and his decision is said to be on principle.