Article 141 of the Indian Constitution & Role of Precedent

Project submitted toDr. Azim Pathan

Project submitted byAyushi Dwivedi(Roll no.-47)(Section-A, sem-I) Submitted on- 26-10-2013

HIDAYATULLAH NATIONAL LAW UNIVERSITYRAIPUR, C.G.

Declaration

I hereby declare that the project work entitled ARTICLE 141 OF THE INDIAN CONSTITUTION AND ROLE OF PRECEDENT submitted in HNLU, Raipur, is record of an original work done by me under the able guidance of the faculty of legal method, HNLU, Raipur.

AYUSHI DWIVEDIROLL NO:47Ba.LL.b. 1st sem; batch: XiiiDate: - 26/10/2013

ACKNOWLEDGEMENTS

The successful completion of any task would be, but incomplete, without the mention of people who made it possible and whose constant guidance and encouragement crowned my effort with success.I would like to thank my course teacher Dr. Azim Pathan Sir for providing me the topic of my interest.Secondly, I would like to thank our Vice Chancellor for providing the best possible facilities of I.T. and library in the university. I would also like to extend my warm and sincere thanks to all my colleagues, who contributed in innumerable ways in the accomplishment of this project.

Ayushi DwivediSemester I

Table of Contents

1. Declaration__________________________________________22. Acknowledgements___________________________________33. List of Abbreviations__________________________________54. Table of Cases_______________________________________65. Objectives of Study___________________________________76. Research Methodology________________________________77. Introduction_________________________________________98. Article 141 of Indian Constitution_______________________10-179. Precedent and other sources of law______________________18-2010. Nature and Scope of Precedent_________________________21-2411. History of Precedent__________________________________2512. Doctrine of Precedent in India___________________________26-2713. Role of Precedent_____________________________________28-3014. References___________________________________________31

List of Abbreviation

1. &-And.2. e.g.-For Example.3. etc.-Etcetera.4. i.e.-That is.5. Edn. - Edition.6. SC - Supreme Court.7. AIR - All India Reporter

Table of Cases

A-One Granites Vs. State of U.P________________________________14 Bachan Singh v State of Punjab_________________________________8 Bengal Iron Corporation v Commercial Tax Officer_________________13 Dalbir Singh Vs. State of Punjab________________________________13 Dasharatha Rama Rao v State of Andhra Pradesh__________________10 Gerard Vs. Worth of Paris Ltd_________________________________14 Govinda Naik Vs. West Patent Press_____________________________17 Pandurang Kalu v State of Maharashtra__________________________13 Premnath Sharma Vs. State of U.P______________________________14 Rudrayya Vs. Gangawwa_____________________________________16 Sajjan Singh v State of Rajasthan_______________________________17 Scruttons Ltd. V.Midland Silicones Ltd__________________________15 State of U.P. Vs. Synthesis & Chemicals Ltd______________________14

Objectives

To have an idea about Article 141 of the Indian Constitution and define its ambit. To study the concept of Precedent as a source of law. To understand the historical significance of Precedent. To explain the role of precedent in providing justice.

Research Methodology

This research paper is descriptive and doctrinal in approach. It is largely based on secondary and electronic sources. Other reference as guided by faculty of LEGAL METHOD is primarily helpful for the completion of this project.

Chapter-IIntroduction It is very difficult, if not impossible, to give a precise definition of Law. Often quoted, although not widely believed, definition of Law is of that given by Austin according to which Law is the command of the Sovereign. And law comes from its different sources like legal, historical, formal and non formal sources, legislation, custom, precedents, etc. As a matter of degree, the Courtstend to attach greater weight to their own previous decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is greatbecause of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. Sources of law may be classified into Legal and Historical sources. Legal sources are those which are recognized as such by law itself. Historical sources are those sources lacking formal recognition by law. The legal sources of law are authoritative and are allowed by the law courts as of right. The historical sources of law are unauthoritative. They influence more or less extensively the course of legal development, but they speak with no authority. All rules of law have historical sources but not all of them have legal sources. Here, in this project I will specifically deal with Article 141 of the Indian Constitution and role of precedent as a source of law. It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority, which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of law. It is the reason or legal principle of the case, which is known as the ratio decidendi applied by the Doctrine of stare decisis, which forms the law for the future. A decision is not binding because of its conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case Bachan Singh v State of Punjab[footnoteRef:2]. [2: AIR(1980) 2 SCJ 475]

CHAPTER IIARICLE 141 OF THE INDIAN CONSTITUTIONLaw declared by Supreme Court to be binding on all courts. The law declared by the Supreme Court shall be binding on all courts within the territory of India.1.Conceptual aspects :At the outset, important conceptual aspects may be critically re-viewed.1.1Supreme Court makes law :In terms of Article 141 of the Constitution, the Supreme Court is enjoined to declare law. The term declared is wider than the term found or made. To declare means to announce opinion. Indeed, the term made involves a process, while the term declared expresses result. The law declared by the Supreme Court is the law of the land. It is a precedent for itself and for all the Courts/Tribunals and authorities in India. To deny this power to the Supreme Court on the footing that it only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary.While the position of the Supreme Court is subordinate to the Legislature, it must be recognised that in the Supreme Courts efforts to achieve its purpose of declaring the law, creativity is involved. A statute is binding; but it is the statute, as interpreted by the Supreme Court that is binding on all the other Courts. The Supreme Court is not a mere interpreter of the existing law. As a wing of the State, it is a source of the law.1.2Purposive interpretation preferred to literal interpretation :In the aforesaid background, rising above the doctrine of literal interpretation, judicial activism has been pleaded in the matter of interpretation of statutes. Having consistently followed such approach, the doctrines of purposive and progressive interpretation have come to prevail in the matter of statutory as well as constitutional interpretation. This, however, is subject to the limitation that the Court cannot rewrite the law in the guise of interpretation.1.2.1While interpreting law, the Supreme Court may alter it :Article 141 empowers the Supreme Court to declare the law and not enact it. Hence, observations of the Supreme Court should not be read as statutory enactments. At the same time, this Article recognises the role of the Supreme Court to alter the law in the course of its function to interpret a legislation so as to bring the law in harmony with social changes.1.3Constitutionality :1.3.1Where a High Court allows several writ petitions declaring a Statute as unconstitutional :In such a case, if the State appeals to the Supreme Court only in one of the petitions and in that appeal, the Supreme Court upholds the validity of the Act (setting aside the judgement of the High Court), the law declared by the Supreme Court would, in terms of Article 141, be binding on all the petitioners before the High Court and not merely the particular petitioner against whom the State had preferred appeal.1.3.2Where a State Government is a party duly represented before the Supreme Court :In such a case, the decision of the Court declaring a State Act asultra viresshall be binding on that State Government, even where no notice, as required by the Code of Civil Procedure, was served upon the Advocate-General.1.4Retrospectivity :Where the Supreme Court has expressly made its ratio prospective, the High Court cannot give it retrospective effect. By implication, all contrary actions taken prior to such declaration stand validated.The doctrine of prospective over-ruling is applicable to matters arising under the Constitution as well as the statute. Applicability of the doctrine is left to the discretion of the court to be moulded in accordance with justice of the cause and matter before it. If the Supreme Court does not exercise its discretion to hold that the law declared by it would operate only pros-pectively, the High Court cannot of its own hold so. When the Supreme Court interprets an existing law overruling the interpretation given to it earlier and does not lay down any new law, declaration of law by it relates back to the law itself.2.What is binding under Article 141 ? :What is binding is the ratio of the decision and not any finding on facts, or the opinion of the Court on any question which was not required to be decided in a particular case.The law that will be binding under Article 141 would extend only to the observations on the points raised and decided by the Court in a case. Therefore, as a matter of practice, the Court does not make any pronouncement, particularly in Constitutional matters, on the points not directly raised for its decision.General principle of law laid down by the Supreme Court is applicable to every person including those who are not a party to that order.In other words, it is the principle underlying a decision that is binding. While applying the decision in a later case, therefore, the later Court should try to ascertain the true principle laid down by the previous decision, in the context of the questions involved in that case from which the decision takes its colour.2.1Decisions of the House of Lords and Privy Council :All Courts in India are bound to follow the decisions of the Supreme Court even though the same are contrary to the decisions of the House of Lords or of the Privy Council.2.2To ascertain its binding nature Judgement to be read as a whole :A judgement must be read as a whole and the observations from the judgement have to be considered in the light of the question before the Court. It is the principle found upon reading the judgement as a whole in the light of the questions before the Court that is relevant and not particular words or sentences.2.3Precedent value of the decision only on question of law :A decision is available as a precedent only if it decides a question of law.2.4Majority view binding Not minority view :When the Court is divided, it is the judgement of the majority which constitutes the law declared by the Supreme Court and not the view or observations of the judges in minority.It is immaterial that the conclusion of the majority was arrived at by several judges on different grounds or different processes of reasoning.2.5Ex-parte decision, too, binding :To determine whether a decision is declared law, it is im-material whether the Supreme Court gave the decision ex-parte or after a hearing.2.6Procedural irregularity Immaterial :The binding force of a judgement as a precedent is not affected by any procedural irregularity in hearing the case.2.7Special leave petition :In a Special Leave Petition, there is a law declared if the Court gives reasons for dismissing the Petition. However, there is no law declared where the Court gives no reasons for dismissal.3.What is not binding ?3.1Certain decisions Not binding :The following kinds of decisions cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 : The decision that is not express The decision not founded on reasons The decision that does not proceed on consideration of the issue.The later Court would not be bound by those reasons or propositions which were not necessary for deciding the previous case. Conversely, the later Court cannot unnecessarily expand the scope and authority of the precedent. In other words, a judgement cannot be construed as an Act of Parliament. It must be read in the context of the questions that arose for consideration in the case and not as embracing all aspects of every question relating to the subject or laying down principles of universal application. In the absence of parity of situation or circum-stances, the reasoning of one decision cannot be applied in another case.3.2Obiter dictaNot binding :Onlyratio decidendiis binding;obiter dicta, that is, the general observations have no binding force. Since an obiter is not binding as the law declared under Article 141, it cannot be relied upon solely to hold certain statutory rules as invalid.Anobiter dictumis an observation made by a Court on a legal question suggested by a case before it, but not arising in such manner as to require the Courts decision. It is not binding as a precedent, because the observation was unnecessary for the decision given by the Court.An obiter of the Supreme Court though not binding as precedent, is worthy of respect and consider-able weight.While the decision of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court, the position is different as regards obiter.3.3Decisions per incuriam and sub-silentio Not binding :These two doctrines constitute exceptions to the rule of pre-cedents. The expressionper incuriammeans resulting from ignorance of. If a decision is renderedper incuriama statute or binding authority, the same may be ignored.Another exception to the rule of precedents is the rule ofsub-silentio. A decision issub-silentiowhen the point of law involved in the decision is not perceived by the Court or not present to its mind. A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgement is not theratio decidendi. This is the rule ofsub-silentio, in the technical sense when a particular point of law was not consciously deter-mined.3.4Later decision Not binding if the earlier decision is by a larger bench :If the later decision is that of a larger Bench, the previous decision will be deemed to have been overruled1. Thus, the judgement of a 3-Judge Bench is binding on a Bench of 2 Judges. However, where there is a conflict between two decisions of the Supreme Court, it is the later decision that will be bind-ing on the lower Courts, unless the earlier decision was by a larger Bench.3.5Supreme Courts observations on facts Not binding :Statements on matters other than law,e.g., facts, have no binding force, for the facts of two cases are generally not similar. On this principle, decision on a question of sentence cannot be regarded as law declared. A reference may, however, be made to the under-noted Bombay High Court decision51 in which it was held that if the facts were the same, the Supreme Court decision was a binding precedent.3.6Decision based on concession Not binding :No law is laid down when a point is disposed of on concession. If the Court proceeds on the basis of concession made by a party, the decision cannot, by any stretch of imagination, be termed a binding precedent and cannot have the sanctity and solemnity of a binding precedent.4.High Court and lower Courts Bound by Supreme Court decisions :4.1Lower Courts duty-bound to follow :When some principle has been laid down by the Supreme Court or some practice is deprecated, it is the duty of the High Court or lower Court to follow the decision of the Supreme Court, even though it may not have the approval of the Judge of the High Court or lower Court where the Supreme Court decision is cited. The Central Admini-strative Tribunal, too, is bound to follow the Supreme Court decisions.4.2Not to follow is contempt :A judgement of the High Court that refuses to follow the directions of the Supreme Court or seeks to revive a decision of the High Court which was set aside by the Supreme Court, is a nullity. The Supreme Court may treat it as contempt even where its order was couched in the language of a request.4.3Remand by the Supreme Court :Where, however, in a subsequent petition under Article 32, the Supreme Court directs the petitioner to go before the High Court and directs the High Court to reconsider the matter, the High Court would not be fettered by its own previous judgement.4.4Lower Courts Not to seek clarification :If a direction of the Supreme Court is clear, a party cannot approach the Court for clarification for assisting the High Court, since the same would tantamount to nullifying the Supreme Court order or notification.4.5Non-consideration of a particular argument No ground to assail the decision :The binding force of a Supreme Court decision cannot be as-sailed on the ground that it did not consider a particular argument provided the point to which the argument relates was actually decided therein.5.Supreme Court How far bound by its own decisions ?The words all courts in Article 141 do not include the Supreme Court. In overruling its earlier decision, the Supreme Court should remember that while the decisions of other Courts are binding only upon the litigants, a decision of the Supreme Court is something more : it is declaratory for the nation. Accordingly, the Supreme Court is free to depart from its earlier decision in certain cases.

Chapter-IIIPrecedent And other Sources Of Law In the ordinary sense Source of law means the origin, beginning or the spring rise to the stream of the rule of law. Generally, the Sources of Law can be understood only after going through the writings and theories of various theorists and jurists. The laws derive its force, spirit and validity from the sources of law. Law comes into existence only when it is constructed on the valid sources. Without valid sources, any set of rules, governing human conduct cannot be treated as laws. Thus, sources will occupy the most important place in the study of law. Once we know what the sources of law are; then it is very easy to know what law is[footnoteRef:3]. Actually the term source of law is used in different senses According to Austin . The source of law is the authority from which the law derives its force or validity. In this sense, the source of law is the Sovereign or State. [3: Hijam NK. Singh, jurisprudence explained, 1999, p.132 ]

There are many sources of law one of them is precedent but before moving further we should understand what the term source of law means. It generally means the sources from where the law has been obtained. Sources of law can be classified as either legal or historical. The former are those sources which are recognized as such by the law itself. The latter are those sources lacking formal recognition by the law. The legal sources of law are authoritative, the historical are unauthoritative. The former are allowed by the law courts as of right; the latter have no such claim; they influence more or less extensively the course of legal development, but they speak with no authority. No rule of law demands their recognition.[footnoteRef:4] The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only mediately and indirectly.[footnoteRef:5] All rules of law have historical sources. As a matter of fact and history they have their origin somewhere. [4: P.J. Fitzgerald, Salmond On Jurisprudence, 2008 p. 109-110] [5: Id p. 110]

3.1 LegislationLegislation has become the commonest source of new laws or of law reforms today. It is the source of law which consists in the declaration of acts legal rules enforceable by a competent authority. To legislate is to make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature does not confine its action to the making of rules, yet all its functions are included in the term legislation.3.2 CustomCustom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.[footnoteRef:6] Custom has an important place as a source of law. It is the most important non-formal source of law. Custom exists as law in every country, though it everywhere tends to lose its importance relatively to other kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of existence and general acceptance of which is proved by their customary observance, is no doubt the oldest form of law making. It marks the transition between morality and law. [6: Salmond On Jurisprudence, 12th edition, by P.J. Fitzgerald, Universal Law Publishing Ltd., Delhi, 2008 p. 190]

The term law includes custom and usages having the force of law. In Dasharatha Rama Rao v State of Andhra Pradesh[footnoteRef:7], Das, J., said Even if there was a custom which has been recognized by law.that custom must yield to a fundamental right. But personal laws, such as Hindu Law, Mohammedan Law, are not included within the expression which has been expounded by the courts. [7: AIR 1961 SC 564]

3.3 PrecedentA Precedent is a statement of law found in the decision of a superior court, which decision has to be followed by that court and courts inferior to it. A decision is cited as a precedent to be followed in other cases if it is based on some principle of law. Decisions on questions of fact may not be cited as precedents. The line between law and fact may be difficult to draw. An issue is one of fact where it turns on the reliability or credibility of direct evidence, or on inferences from circumstantial evidence.[footnoteRef:8] [8: S.H. Bailey, Jane Ching, M.J.Gunn, Bailey and Gunn on The Modern English Legal System P. 479, Smith, by, (sweet & Maxwell) London 2002]

The value of the doctrine of precedent has been much debated. Judges have been criticised on the grounds that precedents give them the power to transform from law-implementors to law-makers. However, it has also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law. At a time of commercial development and constitutional jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents keeping in mind future developments. 3.3A Characteristics of Precedent:- Precedents has its source in judicial decisions. Precedents are created by the courts themselves. Precedents are recognition and application of new principles of law by courts in the administration of justice. A precedent comes into existence only after the case has arisen and taken for decision of the court. The scope of judicial precedent is limited to similar cases only. Precedent is retrospective in nature. Precedent carries judicial authority, as if any other law does.

Chapter-IVNature and Scope of Precedent4.1 Overview As a matter of degree, the Courtstend to attach greater weight to their own previous decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is greatbecause of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity Precedents carries judicial authority, as if any other law does. Many decisions have been brought out by the courts in deciding cases on various subjects matters. These decisions will stand as the precedents for the courts to decide future litigations.[footnoteRef:9] [9: jurisprudence explained by Hijam NK. Singh, capital law house, 1999, p.149, Delhi]

Different jurists have defined precedent in different ways According to Salmond Precedents are judicial decisions followed in subsequent cases. According to Gray A precedent covers everything said or done, which furnishes a rule for subsequent practice. According to Keeton A judicial precedent is a judicial decision to which authority has in some measure been attached.4.2 Kinds of Precedents Original and Declaratory1. Original Precedents are those which creates or establish original or new rules of law.2. Declaratory Precedents are those which merely reiterates and apply already existing rule of law. Authoritative and Persuasive Authoritative precedent - The decisions of the Superior Courts of Justice in England are authoritative precedents recognized by English Law. In our country, Article 141 of the Constitution says that the law declared by the Supreme Court shall be binding on all courts within the territory of India. By this, it is made clear that all courts in India are bound to follow the decisions of the Supreme Court even though the said decisions are contrary to decisions of the House of Lords or of the Privy Council. Privy Council decisions are binding on the High Court so long as the Supreme Court does not overrule them. [PANDURANG KALU Vs. STATE OF MAHARASHTRA[footnoteRef:10] The Supreme Court under Article 141 of the Constitution is enjoined to declare law. The law declared by the Supreme Court is the law of the land. It has been held in the case reported in BENGAL IRON CORPORATION Vs. COMMERCIAL TAX OFFICER[footnoteRef:11] that no doubt a statute is binding, but it is the satute as interpreted by the highest court which is binding on all other courts. [10: AIR (2003) SC 733] [11: 1994 (1) Supp. SCC 310]

Persuasive precedent a persuasive precedent is one which a judge is under no obligation to follow, but which they will take into consideration and to which they attach such weight as it seems to them to deserve. Decisions of court of co-ordinate jurisdiction are only persuasive.

4.3 Elements of Judgement Ratio Decidendi - It means reasons for the decision. The Supreme Court has held in Dalbir Singh Vs. State of Punjab[footnoteRef:12] that every decision has three basic ingredients. 1) the findings of material facts direct and inferential; 2) the principles of law applicable to the legal problems disclosed by the facts, and 3) the judgment based on the combined effect of 1 and 2. For the doctrine of precedents, ingredient 2 is the vital element. Only the Ratio of a decision has binding force. Ratio means the principle found out on reading of judgment in the light of the question before the Court [12: AIR (1979) SC 1384]

Obiter DictaThe judge may go on to speculate what his decision would or might have been if the facts of the case might have been different. This is an obiter dictum.The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive authority in later cases.

4.4 Exceptions to the authority of Precedents

SUB-SILENTIO A decision passes sub-silentio, in the technical sense when the particular point of law involved in it was not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically that the Court should not have decided in favour of the particular party unless its also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub-silentio. In Gerard Vs. Worth of Paris Ltd.[footnoteRef:13], It was held that the point raised did not deliberately passed sub-silentio by counsel in order that the point of substance might be decided. Thus we see that the rule that precedent sub-silentio is not authoritative has got a long history behind it. In M/s. A-One Granites Vs. State of U.P.[footnoteRef:14], question arose regarding applicability of R. 72 in case of re-grant of a mining lease which had not been referred to nor considered by the Supreme Court in the earlier decision rendered in Premnath Sharma Vs. State of U.P.[footnoteRef:15] Precedent sub-silentio was held to be not binding. [13: (1936) 2 AII.E.R. 905] [14: AIR 2001 SCW 848] [15: AIR 1997 SC 2252.]

Per-IncuriamIncuria literally means carelessness. In practice per incuriam appears to mean per ignoratium. English Courts have developed its principle in relaxation of the rule of stare decisis. The Supreme Court has held, in the case reported in the State of U.P. Vs. Synthesis & Chemicals Ltd.[footnoteRef:16], that the quotable in law is avoided and ignored if it is rendered in ingoratium of a statute or other binding authority. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in London Street Tramways Vs. London County Council (1898 AC 375). A judgment which has not failed to notice either statutory provision in substance and effect or binding precedent cannot be said to be per incuriam. [M/s. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd. (2001 AIR SCW 2087)] [16: (1994) 4 SCC 139]

Chapter-V History of Precedent Initially began in England, because medieval judges considered themselves charged with the duty of ascertaining and declaring and enforcing contemporary customs and usages. By the 18th century, it became an integral part of the common law system. Lord Mansfield had consolidated and reaffirmed the doctrine of judicial consistency, and declared Law does not consist of particular cases, but of general principles. By the 19th century, Lord Tenterden C.J.said Decisions of our predecessors, the judges of former times, ought to be followed and adopted unless we can see very clearly that they are erroneous, for otherwise there will be no certainty in the administration of law. Prof. Holdsworth in the 20th century, A certain element of conservation is needed, and the reservations with which the English system of case law is received, enable the judges within fairly wide limits to apply to old precedents, a process of selection and rejection which brings the law into conformity with modern conditions. This is often expressed as the golden mean between too much flexibility and too much rigidity. Hierarchy of authority of precedents in England; House of Lords it was bound by its own decisions. Its decisions bind all courts below it. Decision not bound when decision is made in ignorance of statute, or where the principle is obscure, or where it is out of line with established principles and other authorities. Decided in Scruttons Ltd. V.Midland Silicones Ltd.[footnoteRef:17] [17: (1962) AC 446 (HL)]]

Privy Council it was not bound by its own decisions, but great respect is paid. Court of Civil Appeal It binds all inferior civil courts. It was bound by its own decisions. High Court - Creates a binding precedent for all lower courts. In case of an earlier decision of the same. Present High Courts not bound by decisions of old courts of co-ordinate jurisdiction, although they have persuasive value.

CHAPTER-VIDoctrine of Precedent in India In the Indian context the expression sources of law is generally used in two senses. The first sense, according to Hindu scriptures Duty is the foundation head of all law, while according to modern jurisprudence, it is the sovereign from where the law emanates. In the second sense, the expression means where one must resort to get at law. Thus the sources of hindu law can be said to be the Sruti and Smriti. But here in India Precedent also have a important place when we talk about sources of law. Pre-Independence According to S.212 of the Govt of India Act, 1935 - Law laid down by Federal Court and any judgment of the Privy Council is binding on all courts of British India Privy Council was supreme judicial authority AIR 1925 PC 272. Post-IndependenceSC became the supreme judicial authority streamlined system of courts established. Supreme Court - Binding on all courts in India. Not bound by its own decisions, or decisions of PC or Federal Court AIR 1991 SC 2176 High Courts - Binding on all courts within its own jurisdiction. Only persuasive value for courts outside its own jurisdiction. Lower courts - Bound to follow decisions of higher courts in its own state, in preference to high courts of other states.5.1 Conflicting viewsIt has been held by Karnataka High Court in Rudrayya Vs. Gangawwa[footnoteRef:18] that even in cases where a High Court finds conflict between the views of the larger and smaller Supreme Court Benches, it may not disregard the views of the larger Bench. The proper course for the High Court would be to try to find out and follow the opinion of the larger Benches in preference to the opinion of the smaller benches.

A Full Bench of Karnataka High Court in the case reported in Govinda Naik Vs. West Patent Press[footnoteRef:19] has held if there is inconsistency between two Supreme Court decisions one by a Bench of three Judges and the other of four Judges, the latter has to be followed. [18: (AIR 1976 Kar. 153)] [19: AIR 1980 KAR. 92 (FB)]

When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority, and becomes null and void and a new principle is authoritatively substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan[footnoteRef:20]. Where a precedent is merely not followed, the result is the two stand side by side conflicting with each other. Such a situation can be solved only when a higher authority formally overrules one of the laws and sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous decisions. It may overrule them either by expressly saying so, or impliedly by not following them in a subsequent case. Judgments are not scriptural absolutes but relative reasoning. [20: AIR 1965 SC 845]

CHAPTER - VIIROLE OF PRECEDENTThe use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person's rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome. It also means that lawyers can give legal advice to clients based on settled rules of law.The use of precedent also stabilizes the law. Society can expect the law, which organizes social relationships in terms of rights and obligations, to remain relatively stable and coherent through the use of precedent. The need is great in society to rely on legal rules, even if persons disagree with particular ones. Justice louis d. brandeis emphasized the importance of this when he wrote, "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right" (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]).Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other. Thus, persons in similar situations should not be treated differently except for legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge's ability to determine the outcome of a case in a way that he or she might choose if there were no precedent. This function of precedent gives it its moral force.Precedent also enhances efficiency. Reliance on the accumulation of legal rules helps guide judges in their resolution of legal disputes. If judges had to begin the law anew in each case, they would add more time to the adjudicative process and would duplicate their efforts.The use of precedent has resulted in the publication of law reports that contain case decisions. Lawyers and judges conduct legal research in these reports seeking precedents. They try to determine whether the facts of the present case precisely match previous cases. If so, the application of legal precedent may be clear. If, however, the facts are not exact, prior cases may be distinguished and their precedents discounted.Though the application of precedent may appear to be mechanical, a simple means of matching facts and rules, it is a more subjective process. Legal rules, embodied in precedents, are generalizations that accentuate the importance of certain facts and discount or ignore others. The application of precedent relies on reasoning by analogy. Analogies can be neither correct nor incorrect but only more or less persuasive. Reasonable persons may come to different yet defensible conclusions about what rule should prevail.The judicial system maintains great fidelity to the application of precedents. There are times, however, when a court has no precedents to rely on. In these "cases of first impression," a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential.Appellate courts typically create precedent. The U.S. Supreme Court's main function is to settle conflicts over legal rules and to issue decisions that either reaffirm or create precedent. Despite the Supreme Court's reliance on precedent, it will depart from its prior decisions when either historical conditions change or the philosophy of the court undergoes a major shift

CHAPTER-VIII CONCLUSION It is difficult to define law, but it is easy to define about law. Sources of law are an important facet to law as it helps in giving a definition to law. If a study is made of the legal systems in the world in modern times, it would be found that most of the law is made by legislation. In some countries, especially in Common Law countries, the decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a very important parting the framing of laws, and the rights and liabilities of individuals are determined on the basis of customs, especially upon matters on which there are no pre-existent legislation, and no precedent to cover the matter. Sometimes customs are abrogated by the legislation, and at other times are confirmed by their decisions. The judges, in passing their judgment, take help from numerous other sources of law to, juristic or authoritative writings, foreign decisions, moral considerations and public opinion. The law generally comes from these sources. Sources of law are the tools, methods an techniques that are availed by the legal system in order to carry out its social goals and objectives, which is to provide justice to the people, most effectively and adequately. Sources of law concerns itself with the methodology, modes of reasoning and the interpretation of law, and not with the problems, principles and rules of specified law The sources of Indian law are many and varied. Many are a legacy of India being a former British colony. Nevertheless, the past is only one aspect. Laws need constant modifications to suit changing economic, social and political situations. At the end of the day, what counts is that the rule of law reigns and remains supreme. In the ultimate analysis it must be said that the advantages of precedent far outweigh its disadvantages and it has been accepted as one of the most important sources of law in most legal systems, particularly in U.K., U.S.A., India and Afro-Asian countries. Professor Dias and Hughes while accepting the importance of precedents as a source of law however, warned that it should not be stretched too far.

ReferencesBibliography: Hijam NK. Singh,jurisprudence explained, capital law house, 1999, p.132, Delhi P.J. Fitzgerald, Salmond On Jurisprudence, 12th edition, , Universal Law Publishing Ltd., Delhi, 2008 S.H. Bailey, Jane Ching, M.J.Gunn, Bailey and Gunn on The Modern English Legal System, (sweet & Maxwell) London 2002 V.D. Mahajan, Jurisprudence & Legal Theory, Eastern Book Company, 2011, Lucknow

Webliography: jurisonline.in/2010/03/sources-of-law visited on 3/9/2011 at 4:00 pm www.aseanlawassociation.org/papers/Brunei_chp2.pd f visited on 11/9/2011 at 11:30 am nuweb.northumbria.ac.uk/bedemo/Sources_of...Law/page_10.htm visited on 15/9/2011 at 5:00 pmLEGAL METHODPage 18