7
CHAPTER
Judicial Precedent as a Source of Law
SYNOPSIS
7.1 Introduction
7.2 Definition of Judicial Precedent
7.3 Nature of Precedent
7.4 Do Judges Make Law?
7.4.1 The Declaratory Theory (Blackstone’s View)
7.4.2 The Constitutive/Original Theory (John Austin)
7.5 Historical Development of Case-Law Method
7.5.1 The Medieval Origins and Judicial Custom (Post-1066 To 16th Century)
7.5.2 The Formative Period and Theoretical Justification (17th & 18th Centuries)
7.5.3 The Modern, Rigid Doctrine (19th Century Onwards)
7.6 The Doctrine of Stare Decisis
7.7 Kinds of Precedent
7.7.1 Authoritative and Persuasive Precedents
7.7.2 Absolute and Conditional precedents
7.7.3 Declaratory and Original precedents
7.8 Ratio Decidendi and Obiter Dicta
7.8.1 Ratio Decidendi
7.8.2 Obiter Dicta
7.9 Circumstances Weakening the Authority of Precedents
7.10 Merits and Demirits of Precedent as Source of Law
7.10.1 Merits
7.10.2 Demerits
7.11 Conclusion
7.1 INTRODUCTION
Judicial Precedents, often referred to as case law or judge-made law, are an important source of law. It is also the most distinguishing feature of English common law as most of it has been developed through judge made laws1. Unlike Civil Law systems, where the judge’s role is primarily to apply the statutory text; in Common Law, judges not only interpret the law but also create it, particularly in areas where legislation is silent.2 This judge-made law is the essence of precedent.
“Precedent is the law laid down by judges in earlier cases, which becomes a rule for the deciding of subsequent similar cases.” 3
This hierarchical obedience ensures uniformity and certainty in the application of law.4 It can be used either for its instructive value, like any text book of law often used in Germany, France & Italy. It can also have an authoritative nature where the lower courts are bound to abide by the decision of the higher court, due to their binding nature. This is prevailing in common law countries, like India.
In India, Article 141 of the Constitution of India gives the constitutional validity to the doctrine of stare decisis (judicial precedent)5 with respect to the law declared by the Supreme Court being valid and binding on all courts within the territory of India.6 This article formally establishes vertical stare decisis, meaning every court in the country, including High Courts, District Courts, and tribunals, must follow the rulings of the Supreme Court.7
Similarly, the decisions of the High Court are binding on all courts within its territory, while it carries persuasive value in the territories of other high courts. Therefore, it is an established rule that the decisions of the higher courts act as an established rule to be followed insofar as other matters of similar nature are concerned.8 However, the court also cautioned that not every observation in a judgment constitutes precedent; only the ratio deci-
1. P.J Feitzgerald (ed.): Salmond on Jurisprudence, (12th ed.) p. 141.
2. John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 36-38 (Stanford University Press, 3rd ed., 2007).
3. Salmond, Jurisprudence 141(P.J. Fitzgerald ed., Sweet & Maxwell, 12th ed., 1966).
4. E.W. Thomas, The Judicial Process 34-36(Cambridge University Press, 1988).
5. M. P. Jain, Indian Constitutional Law 183 (7th ed., LexisNexis 2014).
6. Art. 141, The Constitution of India, 1950.
7. Tribhuvandas Purshottamdas Thakur v. Ratilal Motilal Patel AIR 1968 SC 372.
8. All India Reporter Karamchari Sangh v. All India Reporter Ltd. 1988 Supp SCC 472.
dendi, the underlying legal reasoning essential to the decision has binding force under Article 141.9
7.2 DEFINITION OF JUDICIAL PRECEDENT
In the Oxford dictionary, the word precedent has been cited as ‘a previous instance or case which is or may be taken as an example of rule for subsequent cases, or by which some similar acts or circumstances may be supported or justified.’ It is essentially a legal rule or principle created by a judicial decision, serving as an authoritative guide for subsequent cases involving similar facts or legal issues.10 The very foundation of this doctrine rests on the Latin principle stare decisis (stare decisis et non quieta movere), meaning “to stand by things decided.” According to Black’s Law Dictionary, precedent itself is defined as “An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.” 11 This doctrine mandates that courts must generally adhere to the rules laid down by superior courts in previous decisions, thereby ensuring the law maintains essential qualities of consistency, predictability, and stability.12 Blackstone also pointed out that it is an established rule to follow the decision where the same points come in litigation, it also ensures reliability of justice which cannot be waved away with every decision of the court. Justice Cardozo also agrees with this premise however with a word of caution that the rule of precedent should be abandoned if it is against social welfare or in disagreement to the notions of justice.13
Professor Allen stressed upon the institutional duty, highlighting that the court has a duty to stand by its previous decision, as the development of law has been marked by this constant process of analogical application of accepted principles.14
7.3 NATURE OF PRECEDENT
A precedent is always constitutive and never abrogative. It Means that irrespective of its binding nature, a precedent can only make laws, not abrogate it. As the responsibility of the judge is to fill the gaps in an existing imperfect law, in doing so, they cannot substitute the existing law with their own views. The process of judge made law can either be deductive or inductive. However, either of the methods can only be used in the absence of a settled law.
9. M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das &Ors. (2020) 1 SCC 1.
10. R. W. M. Dias, Jurisprudence 152 (5th ed., Butterworths, London 1985).
11. Black’s Law Dictionary (11th ed., Thomson Reuters 2019).
12. V. D. Mahajan, Jurisprudence and Legal Theory (5th ed., Eastern Book Company, Lucknow 2012) 238.
13. Cardozo: The nature of Judicial Process, (149-151).
14. C. K. Allen, Law in the Making 225 (7th ed., Oxford University Press 1964).
The former is applied when a judge makes his deduction from an established principle of codified law. The judge extrapolates an interpretation of the law with no consideration to his personal opinion over the matter. His decision is reckoned from general to particular based upon the circumstances presented by the case. Inductive method, on the other hand has been a characteristic of the English common law. In here the judge’s reasoning moves from particular to general approach wherein he observes previously decided similar cases in the same or higher court before concluding the matter in hand. As deductive method relies more on the already established law, it often presupposes law as static, when in reality there is always the possibility of a precedent being overruled by either a bigger bench or by establishment of a new law. Like in the instance of Muslim women not being entitled to maintenance beyond the Iddat period under their personal law, the SC directed maintenance to be granted under section 125 CrPC.15 It was subsequently diluted by the central legislature stating that Muslim women shall be governed by the Act which provides maintenance till Iddat period only.16 The Constitutionality of the said Act was challenged in the apex court, which although upheld the Act, but interpreted it to mean that the husband must provide a reasonable and fair maintenance for his divorced wife, which includes support beyond the Iddat period.17
7.4 DO JUDGES MAKE LAW?
There are conflicting views on this point wherein one vie holds that judges only declare the existing law, however the other view hold that they actually make the law. This creative function of courts becomes particularly significant in situations where legislation is silent, ambiguous, or outdated. In such cases, judicial precedent fills the gaps and provides workable solutions until the legislature intervenes. The utilitarian philosopher, Jeremy Bentham criticised judge-made law as “dog-law,” because a person is punished for an act that was not illegal until the court decided against it, highlighting the retrospective and unlegislated nature of precedent.18 Bentham argued that this process is unjust and unpredictable, as citizens are punished for following rules that were declared ex post facto (after the fact), just like a dog that is punished after it performs the undesirable act.19 He advocated for codified law to ensure certainty and prevent this judicial usurpation of legislative power.
15. Mohd. Ahmed Khan v. Shah Bano Begum and Others AIR 1985 SC 945.
16. Muslim Women (Protection of Rights on Divorce) Act, 1986.
17. Danial Latifi v. Union of India [2001] 7 SCC 740.
18. Jeremy Bentham, The Limits of Jurisprudence Defined 304–305 (Charles Warren Everett ed., Cambridge University Press 1945).
19. H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 124–125 (Clarendon Press 1982).
Lord Diplock in the landmark case of Qualcast (Wolverhampton) Ltd. v. Haynes20 affirmed that the ratio decidendi is the actual, essential principle of law upon which the case was decided. This principle alone is the binding element of precedent that subsequent courts must follow under the doctrine of stare decisis. This definition emphasises that the binding force of a judicial decision rests only on the core legal rule necessary for the judgment, excluding all incidental legal comments or observations.
However, the authority of precedent remains subordinate to legislative supremacy, and any judicial precedent can be overruled by a valid statutory provision.21 Moreover, erroneous or unjust precedents may sometimes perpetuate rigidity in the legal system until corrected by judicial reconsideration or legislative reform.
The debate over whether judges merely find or actively make law through precedent is central to jurisprudence, leading to two main theories:
7.4.1 The Declaratory Theory (Blackstone’s View)
The declaratory theory, championed by Sir William Blackstone, holds that judges do not create new law but merely discover and declare the existing, unwritten Common Law.22 According to this view, the law exists independently of judicial decisions and is rooted in long-standing customs, traditions, and reason. The role of the judge is confined to identifying the correct legal principle that has always been inherent in the legal system and applying it to the facts of the case. Precedent is thus viewed as the evidence of the law, not the source. Chief Justice Sir Edward Coke stated that judicial decisions are “not the original cause of the law, but only declare what the law is.”23 Consequently, when a precedent is overruled, it is not because the law has changed, but because the earlier decision is deemed to have incorrectly stated the true law.24 This theory thus emphasises continuity, stability, and the non-legislative role of the judiciary.
A similar view was expressed by Sir Matthew Hale, who regarded common law as an organic body of principles developed through time and collective judicial wisdom. Hale cautioned against viewing individual judges as lawmakers and argued that the law is refined gradually through successive
20. [1959] AC 743, 760 (HL) (UK).
21. W. Friedmann, Legal Theory 277–279(Stevens & Sons, 5th ed., 1967).
22. William Blackstone, Commentaries on the Laws of England 70 (Vol. 1, 1st ed., Oxford University Press 1765).
23. Sir Edward Coke, The First Part of the Institutes of the Laws of England 97 (1628).
24. Ibid.
decisions rather than created at will by judges.25 According to him, “judges contribute to the clarification of law, not its invention.”
Blackstone maintained that judges are “not delegated to pronounce a new law, but to maintain and expound the old one.”26
Lord Esher in Willis v. Baddeley27 categorically rejected the idea of judicial legislation, observing that “there is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down.”
In Rajeshwar Prasad v. State of West Bengal,28 Justice M. Hidayatullah observed the declaratory nature of judicial decisions, that “a judicial decision is ordinarily declaratory and not creative of law.”29
The seven-judge bench decision of the Supreme Court overruled a 26-yearold precedent of the P.V. Narasimha Rao30 verdict in Sita Soren v. Union of India. 31 It held that the doctrine of stare decisis is not an inflexible rule of law and does not require that an incorrect precedent must be maintained forever simply because it was laid down earlier. The Court explained that while stare decisis promotes certainty and consistency, it must yield where a precedent is clearly wrong or inconsistent with constitutional norms, and therefore, a larger bench may reconsider and overrule earlier decisions when justified.
7.4.2 The Constitutive/Original Theory (John Austin)
The Constitutive or Original Theory, primarily associated with John Austin, posits that judges do not merely declare the law, but in certain circumstances, actively create new legal rules through their decisions. Unlike the declaratory theory, Austin maintained that in a legal system, the sovereign or law-making authority determines law, and in the absence of specific legislation, the judiciary effectively acts as a subordinate legislator. When a judge establishes the ratio decidendi (binding principle), they are viewed as a law-maker (a form of subordinate legislator), effectively filling gaps where no written or customary law previously existed. This approach recognises the legal system’s reliance on the creative function of the judiciary to evolve, treating judicial decisions as a direct and authoritative source of law. Under
25. Sir Matthew Hale, The History of the Common Law of England (1713 ed., University of Chicago Press reprint, 1971) pp. 45–47.
26. Sir Willian Blakstone, Commentaries on the Laws of England, Vo.I (Oxford: Clarendon Press, 1765), p. 69.
27. [1892] 2 Q.B. 324 (CA) at 326 (Esher M.R.).
28. AIR 1965 SC 1887.
29. Ibid.
30. P.V. Narasimha Rao v. State (Cbi/Spe) (1998) 4 SCC 626.
31. (2024) 3 S.C.R. 462 (SC).
this theory, judicial decisions are not merely interpretative but constitutive. Thus, the Constitutive Theory highlights the dual role of courts:
u They interpret existing law, and
u Contribute directly to law-making, when necessary.
Dicey emphasised the importance of judicial decisions in shaping law within common law systems as “The law of the Constitution is largely to be found in the decisions of the courts rather than in the text of statutes.” Pollock described the dual role of judges as both declaratory and law-making. His view “Judges do not merely apply the law; they develop it in its application to new cases.”
In the case of NBCC (India) Ltd. v. The State of West Bengal,32 The Supreme Court has underscored the importance of clearly stating the intent behind its judgments. The Court explained that
“It is also important to note that, as an institution, our Supreme Court performs the twin functions of decision-making and precedent-making. Every judgment or order made by this Court in disposing of these appeals is not intended to be a binding precedent under Article 141. We are aware of the difficulties that High Courts and the subordinate courts face in determining whether the judgment is in the process of decision-making or precedent-making, particularly when we have also declared that even an obiter of this Court must be treated as a binding precedent for the High Courts and the courts below. It is therefore necessary to be cautious in our dispensation and state whether a particular decision is to resolve the dispute between the parties and provide finality, or whether the judgment is intended to and, in fact, declares the law under Article 141.” 33
In Rohan Vijay Nahar v. The State of Maharashtra, 34 a Bench of the Supreme Court reaffirmed the constitutional duty of all courts to faithfully apply binding precedents, warning that inferior courts cannot sidestep precedential authority by superficially distinguishing cases while ignoring substantive holdings.
Dr. S.N. Dhyani provides a balanced Indian perspective on judicial law-making, the common law judge cannot escape a creative role, particularly when dealing with novel cases, and judicial precedent thus becomes a direct source of law.35
7.5 HISTORICAL DEVELOPMENT OF CASE-LAW METHOD
The doctrine of judicial precedent is the historical foundation of the English legal system. Its genesis is not found in a single legislative Act but is a result of the gradual, centuries-long development of the Common Law following
32. 2025 SCC OnLine SC 928.
33. Ibid.
34. 2025 INSC 1296.
35. S.N. Dhyani, Jurisprudence and Legal Theory 312 (Central Law Publications, 4th ed., 2016).
the Norman Conquest in 1066, an event that spurred the development of a unified legal system known as the Common Law.36 The evolution from judicial discretion to the rigid rule of stare decisis can be understood through three key phases:
7.5.1 The Medieval Origins and Judicial Custom (Post-1066 To 16th Century)
The early phase saw the establishment of the King’s Courts (such as the Court of Common Pleas and the Court of King’s Bench), whose jurisdiction and authority spread across England, leading to the creation of law “common” to the entire realm, gradually displacing disparate local customs and feudal courts. 37 During this phase, judges relied heavily on casuistry (the resolution of new cases by drawing analogies from previous ones), a necessity born from the lack of codified rules.
The first recorded evidence of this reliance is found in the Year Books (c. 1272 to 1535), which recorded legal proceedings and arguments. A classic example of this early casuistry is Beaulieu v. Finglam38, which established an early principle of negligence or “duty of care” concerning fire, where the court ruled the defendant was liable for fire damage caused to a neighbour’s property due to his negligence, setting a model for future tort claims While these served as valuable sources of practice and were respected by the legal profession, they provided only persuasive authority. 39 Precedent functioned as a strong professional habit, representing the collected wisdom of the courts, rather than a rigid rule, as the necessary institutional mechanisms for binding precedent were absent.
7.5.2 The Formative Period and Theoretical Justification (17th & 18th Centuries)
The transition from informal custom to formal doctrine was catalysed by significant structural improvements. The most crucial development was the advent of systematic law reporting in the 17th century, notably through the work of figures like Sir Edward Coke. These reports were more accurate than the Year Books, focusing on the legal principles derived from the case rather than the procedural arguments, thus making the ratio decidendi (the binding principle) more discernible. 40 A key example from this era, though predating the official reports, is R v. Saunders. 41 Documented in Plowden’s
36. Sir John Baker, An Introduction to English Legal History 211 (5th ed., Oxford University Press 2014).
37. R. M. Jackson, The Machinery of Justice in England 146 (7th ed., Cambridge University Press 1977).
38. (1401) Y. B. Hil. 2 Hen. 4, fol. 18, pl. 5 (UK).
39. S. F. C. Milsom, Historical Foundations of the Common Law 7 (2nd ed., Butterworths 1981).
40. Rupert Cross & J.W. Harris, Precedent in English Law 4 (4th ed., Clarendon Press 1991).
41. (1557) 75 ER 735 (Plowden’s Reports) (UK).
Reports, which is foundational to the concept of “transferred malice” in criminal law.
Simultaneously, the theory of precedent was formally enshrined by influential jurists. Sir William Blackstone, writing in his Commentaries on the Laws of England (1765), provided the theoretical justification, arguing that maintaining certainty and public reliance required judges to “abide by former precedents,” unless they were “flatly absurd or unjust.” 42 This formal articulation established the principle that judicial rulings were pronouncements of the law, laying the necessary intellectual foundation for mandatory adherence.
7.5.3 The Modern, Rigid Doctrine (19th Century Onwards)
The definitive and mandatory doctrine of stare decisis, as known today, was fully cemented in the 19th Century. This development was driven by two institutional factors:
(a) The Judicature Acts of 1873 and 1875
They were a crucial set of legislative measures in England that fundamentally reformed the structure and procedure of the superior courts. Their primary effect on the growth of case law was to create the essential structural foundation for the modern, doctrine of stare decisis to operate effectively. 43 These legislative measures achieved two major reforms:
u first, they fused the administration of Common Law and Equity into a single system, allowing judges to apply both sets of principles within the same court, resolving the historical inefficiencies of split jurisdiction (with equity prevailing in cases of conflict). 44
u Second, and most critical to the development of precedent, the Acts consolidated the various superior courts into a single Supreme Court of Judicature, divided into the High Court of Justice and the Court of Appeal. 45
This reform definitively established a clear, vertical hierarchy of courts leading up to the House of Lords (as it then was). This clear structure eliminated ambiguity regarding appellate authority, making the rulings of superior courts immediately and absolutely binding on those below them, thereby solidifying vertical precedent as a strict rule of law necessary for the rigid stare decisis doctrine to flourish.
42. William Blackstone, Commentaries on the Laws of England 69 (Vol. 1, 1st ed., Oxford University Press 1765).
43. R. M. Jackson, The Machinery of Justice in England 146 (7th ed., Cambridge University Press 1977).
44. R. W. M. Dias, Jurisprudence 150 (5th ed., Butterworths, London 1985).
45. A. V. Dicey, Introduction to the Study of the Law of the Constitution 390 (10th ed., Macmillan 1959).
(b) Incorporated Council of Law Reporting for England and Wales (1865) Before 1865, the system of reporting by private individuals (Nominate Reporters) was disorganised, often suffered from delays and inaccuracies, and lacked official sanction, fundamentally undermining the authority of precedent. 46 A strict rule requiring courts to be absolutely bound by the ratio decidendi of a prior case is impossible to enforce if that ratio cannot be reliably and accurately identified. The Incorporated Council of Law Reporting (ICLR), formed by representatives of the legal profession in 1865, resolved this issue by providing authoritative documentation: reports were prepared by barristers and submitted to the judges for approval before publication, ensuring they precisely captured the essential findings of fact and the judge’s ratio decidendi (the binding principle). 47 This established the ICLR reports as the official and standard source for precedent, thereby furnishing the accurate knowledge base for the structural hierarchy created by the Judicature Acts, allowing the rigid vertical stare decisis to become an effective rule of law for the first time.
In India, the doctrine of stare decisis is not merely an inherited institutional custom from English Common Law, but a rule granted constitutional force in the post-independence era, defining the modern application of the case-law method. This rigidity is established primarily by Article 141 of the Constitution, which elevated precedent to a supreme constitutional mandate. 48 This provision dictates a strict form of vertical stare decisis, ensuring mandatory adherence by every court and tribunal to the Supreme Court’s legal pronouncements, thereby making its rulings a direct and authoritative source of law throughout the country. While vertical adherence is absolute, the Supreme Court retains essential horizontal flexibility regarding its own past decisions.
7.6 THE DOCTRINE OF STARE DECISIS
There was no stare decisis as there was no reporting of decisions of the court in the common law until the decisions of the Exchequer Courts came to be reported in England and were given binding force in the 17th centaury. Infact, in the case of Mirehouse v. Rennell, 49 Chief Justice Park reiterated the need to report and recognise the binding nature of the historic decision. Subsequently with the judicature Acts of 1873 & 1875, the doctrine of stare decisis was concretised in legal systems of England and India. 50
46. Ibid 19.
47. Supra note 16.
48. India Const. art. 141.
49. (1833) 1 Cl & Fin 527.
50. R. M. Jackson, The Machinery of Justice in England 146 (7th ed., Cambridge University Press 1977).
The doctrine encapsulates the duty of courts to adhere to previously settled legal principles when deciding similar cases51. It ensure certainty, consistency, and institutional continuity in judicial decision-making making law predictable for individuals to regulate their conduct in compliance with established legal norms. Although, precedent refers to a judicial decision making, stare decisis represents the methodological discipline that compels courts to follow those decisions.52 Goodhart explains, the doctrine restrains judicial arbitrariness by subjecting judicial discretion to the discipline of prior authority, thereby reinforcing the rule of law. 53
In India, the binding nature of stare decisis is expounded through institutionalising the doctrine under Article 141 by mandating law declared by the Supreme Court to be binding on all courts. 54 This constitutional recognition elevates stare decisis from a common law convention to a constitutional norm, ensuring uniformity in the interpretation and application of law throughout the country.
In Bengal Immunity Co. v. State of Bihar, 55 the Court affirmed that the term “all courts” in Article 141 refers to courts other than the Supreme Court itself, thus preserving the Court’s power to overrule its own precedents when necessary to correct manifest errors or achieve constitutional rectitude. Furthermore, the modern doctrine is buttressed by internal procedural rigidity, where constitutional interpretations, such as those establishing the Basic Structure doctrine in Kesavananda Bharati v. State of Kerala, 56 can generally only be reviewed by a Bench of equal or greater strength, ensuring stability in fundamental constitutional law. In Minerva Mills Ltd. v. Union of India, 57 the apex court observed that the laws declared must be certain and consistent, which shall be eroded if the views expressed by the court would be readily overridden. To substantiate this notion, in the subsequent decision of State of Punjab v. Devans Modern Breweries Ltd., 58 the Court observed that certainty and continuity are indispensable features of constitutional adjudication and that departure from settled law must be approached with great caution.
The court also cautioned that despite its binding character, stare decisis is not an absolute rule. The apex court retains the power to reconsider and overrule its earlier decisions when compelling reasons exist.
51. Julius Stone, Legal System and Lawyers’ Reasonings 268 (Stanford University Press, 1964).
52. E.W. Thomas, The Judicial Process 118 (Cambridge University Press, 2005).
53. A.L. Goodhart, Essays in Jurisprudence and the Common Law 63 (Cambridge University Press, 1931).
54. Constitution of India, Art. 141.
55. AIR 1955 SC 661.
56. (1973) 4 SCC 225.
57. (1980) 3 SCC 625.
58. (2004) 11 SCC 26.
