ROLE OF PRECEDENTS IN THE DEVELOPMENT OF LAW

INTRODUCTION

Precedents are the prominent source of law. They enjoy a usually high authority in all the countries. Precedents help the judges to refer to the cases that have been already decided and rely on the interpretation of the question of law. A precedent is usually a judgement of the apex court which the inferior courts must follow and take guidance from the judgement already pronounced by the apex court regarding a case of similar nature. Precedents usually are of binding nature that means inferior courts or tribunals are obliged to follow the rule or principle that has been already pronounced by the superior authority when the same case with similar facts arises. In day-to-day life, the Judiciary deals with a lot of cases and therefore there can be a possibility of the cases with similar nature being presented before the court and hence, the precedents come into the role at the time when the cases of similar facts are presented before the court of law. According to Gray, “Precedent covers everything said or done, which furnishes a rule for subsequent practice”. If a case with similar facts arises before the court, then the court has the privilege to refer back to the precedent or the cases previously decided with the same facts or circumstances. In other words, it can be said that ‘Precedents’ means a judgement of the court cited by the other court as an authority while deciding the cases with similar facts, which serves as an authority for the legal principle embodied in its decision. 

Nature and Authority of Precedents

A precedent is in no degree abrogative, which means that a law can be made by a judicial decision, but the law cannot be altered or changed by the precedents. A judge is obliged to follow the already settled rule of law and hence cannot substitute their opinions for the established rule of law. If there is a precedent of the same facts, then the judge must follow it without any alteration. The authority of the precedents lies on the Judiciary that which is delivered in the judgements must be established as the truth and is presumed to be correct. Also, following what has been already decided in the precedents creates consistency in the justice delivery system of the country.

Kinds of Precedents

There are broadly four types of precedents based on their nature[1].

  1. Authoritative Precedents: This type of precedent creates an obligation on the judge that the precedent must be followed by the judge whether they approve it or not. They are the legal source of law and must be strictly followed by the judge. Authoritative Precedents are further divided into two parts: Absolute and Conditional precedents. Absolute Precedents have to be followed by the judges and are entitled to implicit obedience. Conditional Precedents can be disregarded by the courts in certain circumstances. Usually, they are binding too but in special situations, they can be disregarded by the courts.
  2. Persuasive Precedents: Judges are under no legal obligation to follow such types of precedents. However, this type of precedents must be taken into consideration by the judge and the rest is all upon the judge whether to follow them or not. It has a persuasive impact on the Judge.
  3. Original Precedents: Original precedents are the ones that help in the development of the new rules as these creates and applies new rules. The laws or principles created by the original precedents are used in future cases when a case with similar facts arises. The number of original precedents is comparatively low, but they are the most prominent judgements that help in the development of law in the country.
  4. Declaratory Precedents: These precedents are just the opposite of the original precedents. They don’t help in the development of the new rule but the mere application of the already existing rule of law.
Role of Precedents in the Development of Law

The law of the country has to change with the changing circumstances and with the help of precedents, judges try to alter the existing laws or principles and apply them in their way as per the circumstances. The Judiciary shapes the scattered and different legal rules into broad principles and by the collection of previous laws and restatement, they help in the making of the new law and hence better application of the law in the ever-changing circumstances. According to Gray,Judges alone are the makers of Law”. The judges have to deal with a plethora of cases in their day-to-day course and hence they face different circumstances, which was not dealt with earlier and hence the judge has to interpret the law in their term and establish a rule that shall be followed in the further cases dealing with the same circumstances and that’s how with the judgements of the court helps in the development of the law of a country. If we take the example of American law, it is also called Judge made law as the judicial decisions and the judgements played a major role in the development of the law.

The original precedents are of utmost importance in the development of new laws and principles as they deal with the new circumstances and hence the statute interpreted by them leads to the development of new law that must be followed by other courts. Declaratory precedents further help in the strengthening of the already developed laws and their better application which brings consistency and originality in the law. Following are some other merits of precedents and the role they play in the development of the law:

  • The precedents save a lot of time for the judges as it becomes very hectic to revisit the statutes or laws even when the case has been adjudicated before. Once the question relating to a case is resolved then it need not be argued again and again.
  • Precedents bring consistency in the application of the law as the judges follow the rules that have been already made in some other case and hence it gives Junior judges a great opportunity to refer back to the already decided cases and hence ensure the correct and consistent application of the law.
  • Precedents lower downs the chance of any mistake while the interpretation of the statute can be there without the help of the precedents. The chance of the mistake is minimized as the interpretation of all remains the same and thereby the confidence of the people in the judiciary system of the country increases.
Landmark Judgements that helped in the Development of Law

There have been a plethora of judgements of the Supreme court that helped in the development of law and making the new rules that have not been discussed before in any statute or law. The changing circumstances bring with it some new questions regarding the already established law and hence some alteration in the interpretation is required for the better application and the development of the law. In the famous case, Vishakha v. the State of Rajasthan[2], the Supreme Court of India laid down some guidelines relating to the sexual harassment of women at the workplace. In this case, the victim was gang-raped at her workplace for refusing child marriage. Hence Public interest litigation was filed regarding the safety of women at their workplace and the enforcement of their rights under Articles 14,19 and 21 of the Indian Constitution and as a result, the Supreme Court pronounced guidelines called Vishakha Guidelines for the safety of women at their workplace. These guidelines were used in various cases and in various cases this judicial decision was used as a precedent when dealing with the same circumstances. Later in 2013, these guidelines were converted into an official act called the Sexual Harassment of Women at Workplace Act, 2013. This is an apt example of how precedents or judicial decisions help in the development of law.

In another landmark case law, Kesavananda Bharti v. the State of Kerala[3], the doctrine of basic structure was developed and hence a principle was made at the time of this judgement that the basic structure of the Constitution cannot be amender. It was through various judicial decisions that this principle was developed and followed by every court and referred to as a precedent. This doctrine was not mentioned anywhere in the constitution but was developed through the precedents of the court.

In Donoghue v. Stevenson[4], the law relating to the liability of the manufacturer towards the customer was developed and is still being followed by various courts. Various landmark judgements are used as precedents by the courts and the laws are being developed through the same. Precedents as a source of law are very pertinent for the development and overall implication of the law.

CONCLUSION

Therefore, it can be concluded that the Precedents help in the development of law, and it enhances the meaning and application of existing laws or rules. There have been many cases that have been used by the judges and referred to for the better implication and development of law. As per the declaratory theory as well the judges are the discoverer of law and original precedents help them discover and declare the law.

Author(s) Name: Garv (Hidayatullah National Law University, Raipur)

References:

[1] V.D Mahajan, Jurisprudence and Legal Theory 206-210 (5th ed. 1987).

[2] AIR 1997 SC 3011.

[3] AIR 1973 SC 1461.

[4] (1932) UKHL 100.

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