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The Doctrine of Judicial Precedent - PDF

   

Added on  2019-09-30

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The doctrine of judicial legal precedentIn the Pre-Independence era, under section 212 of the Government of India Act, 1935[ CITATION Gov35 \l 1033 ], the law if any as was held by the Federal Court and any judgment of the Privy Council had the binding effect on all the courts of British India and the Privy Council was considered to be the supreme judicial authority [ CITATION Mat25 \l 1033 ]. But, in the Post-Independence period, the Supreme Court is the highest judicial authority and pronounce the decisions to have a binding effect on all the lower courts, but not bound by its own decisions or that of the privy Council and nevertheless the Federal Courts [ CITATION Del91 \l 1033 ]. On the other hand, the High Courts have the binding effect and the supremacy on all courts within its own jurisdiction, but have persuasive effect for courts which is not under its own jurisdiction. But, unlike the Supreme Court, the decisions of Privy Council and that of the Federal court have the binding effect subject to satisfaction that they are not in conflict and indetriment to the decisions as stated by the Supreme Court. Lower courts are bound not only to follow decisions of higher courts within its own state, but also the decisions of the High courts inother states.Stare decisis is a principle which seeks to treat similar cases through similar approaches, so that the consistency can be maintained and there will be a continuity of the application of law. This principle of stare decisis is underlying definition of the doctrine of judicial precedent. Precedent is the previous cited case laws, which is have the authority to have force upon the future cases onsame or similar or identifiably equal matters. Precedent can either be binding and can also be persuasive. Binding precedence are those which have a binding effect on the future decision, but subject to conditions that the latter case is in some way or the other similar to the original decision and that binding decision is made by the higher court than the court who will be hearingthe case and citing that as binding on a later date. The binding precedents can be located in the reasoning of the judgement, i.e. ratio decidendi of the case, where the judge states the reasons behind coming to the decisions. On the other hand, a persuasive precedent is not binding but is atthe discretion of the judge who is listening the case before him. Case law in the common law jurisdictions, serves as a source of law. The Constitution of India under Article 141 [ CITATIONCon50 \l 1033 ], expressly stated that the decision of the Supreme Court is to be made binding onall the courts and that must be applicable throughout the territory in India. But, for the decision of the High Courts to have the binding effect on the lower courts, there is no expressed provision, but the usage and the convention, made the decision of the High Court binding on the lower courts. Conviction and consistency are critical properties of law, and without a doubt, it is the very basis for its prosperity. On the off chance that law treats a man in such a way, that, it is just barely that different people in comparative position are dealt with in likewise manner and exactly that this point the noteworthy consistence with law will be visibly exhibited. In order to guarantee consistency in the interpretation of different laws, doctrine of precedent evolved to maintain consistency along with the uniformity in law, combined with the equality, and also efficiency and thereby avoiding arbitrariness. Judicial methods are the techniques adopted by the

judges in deciding cases, whereby judges follow previously decided cases where the facts are of sufficient similarity. Judicial method plays an important role involves an application of the principle of stare decisis, in the development of law, to provide consistency and predictability in the law, irrespective of the fact whether case laws to decide are based on common law cases or codified laws. Thus, a precedence is one which is the instance and cites an example for subsequent conduct, and sets out a pattern upon which on the conduct. Operation of it in different ways in civil and common law legal traditionsIn United Kingdom, which is also based on the common law like India, is also bound by the precedence or the judge- made laws in the same way or the other. Court of Appeal in United Kingdom, in [ CITATION You \l 1033 ], held that the previous decisions have a binding effect on it, but if there is a conflict with the current decisions along with the previous decisions then it would be the discretion, as of which to follow and which to reject. Again, in United Kingdom, if the House of Lords have expressly not overruled any decision of the Court of Appeal, still the Court of Appeal have and can use its discretion for the applicability of the precedence and also can deny and refuse to follow the precedence if it was given per incuriam. The Supreme Court judgements for litigants are decisions, are treated as In Rem, and are declaratory of the law[ CITATION Gan \l 1033 ]. But, Art. 141[ CITATION Con50 \l 1033 ] do not state that decisions pronounced Supreme Court cannot be changed or modified by the legislature was held in [ CITATION Jam51 \l 1033 ]In [ CITATION Nan95 \l 1033 ], the Supreme Court declared, itself to be the source of law for doing complete justice was held in [ CITATION ICG67 \l 1033 ], however, minority judgment so pronounced by the Supreme court is not treated as a binding precedent, but have great persuasive value was held in [ CITATION Shr68 \l 1033 ]. But, not all decisions are precedents, and so a precedent is only made, when there is an answer as to the law and nothing else was held in [ CITATION Sta92 \l 1033 ], thus it is quite clear that the decisions so made by the Supreme Court on the facts cannot be considered a precedents was held in [ CITATION Sat60 \l 1033 ]. Similarly, the High Court when interpreting the judgement so pronounced by the Supreme court cannot hear appeals against it and can neither modify it was held in [ CITATION GKD86 \l 1033]Accommodation of the doctrine in new situation of legal disputeThe famous landmark decision on Vishaka case [ CITATION Vis97 \l 1033 ], Supreme Court provided guideline as to the sexual harassment of women at the workplace are considered to have the force of legislation. Bhopal Gas Leak Case – [ CITATION MCM86 \l 1033 ], the rule on strict and absolute liability in for dangerous activities was implemented and incorporated from the English case of Rylands v. Fletcher [ CITATION Ryl68 \l 1033 ]. For intellectual property related matter, Supreme Court laid down the principles about Copyright in derivative works and publications and is considered as the guiding force was held in [ CITATION PUC97 \l1033 ].

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