Second-year Law Notes & Flashcards

1. The Doctrine of Judicial Precedent

In legal theory, a precedent is not merely a past event; it is a pattern of conduct that serves as a guide for the future. In the judicial context, it represents the authority of past court decisions that must be followed in subsequent similar cases.

The Principle of Stare Decisis

The bedrock of the precedent system is the Latin maxim "Stare decisis et non quieta movere," which means "to stand by things decided and not to disturb settled points." This doctrine ensures that law is certain and predictable.

• Mechanism: When a court of high authority (like the Supreme Court) lays down a new rule of law, that rule becomes a binding precedent for all lower courts.
• Purpose: It prevents arbitrary decisions by judges and builds confidence in the minds of litigants, ensuring that justice is equitable and fair.

2. The Hierarchy of Binding Authority in India

The binding force of a precedent depends entirely on the hierarchy of the court that delivered the judgment.

A. The Supreme Court (Article 141)

Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all courts within the territory of India.

• The "All Courts" Rule: The Supreme Court is not bound by its own previous decisions. It can depart from a prior ruling if it is found to be erroneous or detrimental to public welfare.
• Example: In the landmark Kesavananda Bharati case, a 13-judge bench re-examined and modified principles established in earlier cases regarding the power of Parliament to amend the Constitution.

B. The High Courts

The High Courts act as the highest judicial authority within a state.

• Jurisdictional Binding: A High Court decision binds all subordinate courts (District Courts, Tribunals) within its specific state.
• Persuasive Value: A decision of the Bombay High Court does not bind the Madras High Court; it only has "persuasive value."

The Bench System:

• * Single Bench: One judge.
• Division Bench: Two judges.
• Full Bench: Three or more judges.

Rule: A larger bench always overrides a smaller bench. If a Division Bench finds a previous Division Bench's ruling wrong, it must refer the matter to a Full Bench.

3. Anatomy of a Judgment: Ratio vs. Obiter

Not every word in a 100-page judgment is law. Jurists distinguish between two types of statements:

Ratio Decidendi (The Binding Part)

Literally "the reason for the decision." It is the legal principle or the core logic upon which the case's outcome depends. It is the only part of the judgment that carries the force of law for the world at large.

Example: If a court decides that a contract is void because it was signed under duress, the Ratio is: "Consent obtained through duress invalidates a contract."

Obiter Dicta (The Persuasive Part)

Literally "said by the way." These are observations made by a judge that are not strictly necessary for deciding the specific issue. While not binding, they are highly respected, especially if they come from the Supreme Court.

Example: In a case about a car accident, a judge might comment on the future need for flying-car regulations. This is Obiter because it isn't necessary to solve the current car accident case.

4. Classification of Precedents

Precedents are classified based on their legal weight and the circumstances of their creation:

Type	Description	Example
Declaratory	Merely applies an existing rule of law.	A court applying the established definition of "theft" to a new case.
Original	Creates a brand new rule of law for the first time.	The Vishaka and Ors. vs. State of Rajasthan and Ors. (13.08.1997 - SC): MANU/SC/0786/1997 which created the first legal framework for sexual harassment at the workplace in India.
Absolutely Authoritative	A judge must follow it, even if they think it is wrong.	A District Court following a Supreme Court ruling.
Persuasive	A judge is not obliged to follow it but will give it great weight.	Using an English Court or American Court decision to interpret a similar Indian law.
Conditionally Authoritative	Ordinarily binding, but can be disregarded if it is clearly contrary to reason.	A Division Bench re-evaluating the decision of a Single Judge.

5. Legislation: The Written Law (Jus Scriptum)

Legislation is the formal declaration of legal rules by a constitutionally empowered body (Parliament or State Legislature).

Supreme vs. Subordinate Legislation

• Supreme Legislation: Proceeds directly from the sovereign power (Parliament). It cannot be repealed by any other authority.
• Subordinate (Delegated) Legislation: Parliament often lacks the time or technical expertise to write every detail of a law. They delegate this power to the Executive (Ministries) or local bodies.

Examples:

Municipal bye-laws, University regulations, or Rules made by the Ministry of Finance.

Judicial Review: Subordinate legislation can be struck down by courts if it exceeds the power granted by the "Parent Act."

6. Personal Laws and Secondary Sources

In matters of marriage, divorce, and inheritance, Indian courts apply Personal Laws based on the religion of the parties.

• Hindu Law: Derived from ancient Shrutis, Smritis (Manu/Narada), and modern Acts like the Hindu Marriage Act, 1955.
• Muslim Law: Sourced from the Quran, the Hadis (sayings of the Prophet), Ijma (consensus), and Kiyas (analogical reasoning).
• Justice, Equity, and Good Conscience: If there is no specific statute, custom, or personal law, judges use their sense of "fair play." This is often based on English Common Law principles adapted to Indian conditions.

7. Indian Mercantile Law

Mercantile Law governs the commercial world—contracts, partnerships, and trade.

The Foundation

Historically, Indian merchants used local customs like the Hundi (an indigenous bill of exchange). The British codified these into the Indian Contract Act, 1872.

Sources of Commercial Law in India:

• Statute Law: Major Acts like the Sale of Goods Act (1930) and the Negotiable Instruments Act (1881).
• English Mercantile Law: Much of Indian trade law is adapted from English statutes.
• Trade Usages: Even today, Section 1 of the Indian Contract Act protects valid trade customs, provided they are not inconsistent with the written law.

Conclusion

A deep dive into these sources reveals that the Indian legal system is a sophisticated blend of Ancient Tradition (Personal Laws), Colonial Heritage (English Common Law), and Modern Constitutionalism (Supreme Court Precedents). By understanding the hierarchy of precedents and the distinction between Ratio and Obiter, legal professionals can predict judicial outcomes and ensure the stable administration of justice.

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