Authoritative and persuasive precedent
Precedents are an important source of law. They enjoy high authority at all times in all countries. Precedents are basically the decisions of the courts to which the authority has in some measure been attached. It is worth noting that it is partly because of the high status which judges occupy in political and social organization and partly because of the importance of the issues they decide, judicial decision have at all times enjoyed high authority. It is mainly because, the legal system of many countries is inspired by English legal system including Indian legal system and jurists in britain are looked as fount of law and they ensures that this fount never run dry.
Nature of precedents.
Precedent is purely constitutive and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same. They cannot substitute their opinions for the established rule of law. Their unction is limited to supplying the vacancies of the legal system, filing of the new law the gaps that exist in the old and supplementing the imperfect Li develop body of legal doctrine.
Authority of precedent
The reason why a precedent is a recognized is that a judicial decision is presumed to be correct. That which is delivered in judgment must be taken for established truth. In all probability, it is true in fact and even if it is not, it is expedient that it should be held to be true. The practice of the following precedent creates confidence in the minds of litigants. Law become certain and known and that in itself is a great advantage. It is conducive to social development, administration of justice becomes even handed and fair. Decisions are given by judges who are expert in the study of law.
Historical Position in India
Art. 141 of Constitution of India declare that law declare by Supreme court shall be the law of land. Prior to Independence, the Doctrine of judicial precedents was first recognized under section 212 of the Government of India Act, 1935. The section provided that the law declared by the Federal Court and by the Judgment of the Privy council shall be binding on all the courts in British India. The High Courts in India were bound by the decisions of the Federal Court and Privy Council.
There are certain kinds of precedents like
• Authoritative and persuasive precedent
• Absolute and conditional precedent
• Declaratory and original precedent
According to Salmond, an authoritative Precedent is one which Judges must follow whether they approve it or not. Authoritative Precedents are the legal sources of law. Authoritative Precedents establish law in pursuance of definite rule of law which confers upon them that effect. The authoritative Precedents must be followed by the Judges whether they approve of them or not. The authoritative precedent in England and also in India are accounts as the decisions of superior courts and they are binding on all inferior court.
After the Constitution of India came into force, the Supreme Court became the highest court in the hierarchy of courts in India which is why, the decisions of supreme court is binding on all courts within the territory of Indian state. The decisions of high courts are binding on all the inferior courts of that respective district. Authoritative precedents puts up a boundation on inferior courts by drawing a parallel and gives a way to proceed and draw conclusions similar to that of precedent provided they are of similar nature and subject matter. It is a pre-requisite of authoritative precedent that the precedent should of court of higher standing or a court superior to that.
A persuasive Precedent is one which the Judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. Persuasive precedents are merely historical. If persuasive precedents succeed in establishing law at all, they do indirectly by serving as the Historical ground of some later authoritative Precedent. They do not have any legal force or effect in themselves. The Persuasive Precedents can merely persuade the Judge but it is up to the judge to follow them or not. The decisions of the English Court have merely persuasive value and not obligatory for the Supreme Court to follow them. The judgments of Privy council are not binding on the Supreme Court. Examples of persuasive precedent .
I. Foreign Judgments.
II. Judgments of Privy council.
III. Judgment of the equivalent courts.
It is worth noting that article 51 of Indian constitution provides force to persuasive precedent in consideration to foreign judgements, treaty and conventions. It reads as
The State shall endeavour to—
1) Promote international peace and security;
2) Maintain just and honourable relations between nations;
3) Foster respect for international law and treaty
4) Obligations in the dealings of organised peoples with one another; and
5) Encourage settlement of international disputes by arbitration.
Decisions of high court are also comes under persuasive precedent. The decision of one high court has mere persuasive power on another high court. The decision of one session court has persuasive power on other session court. It is a pre- requisite for a persuasive precedent that it should be the decision of court of equal standing.
Author: Ajay Singh Tomar,
Amity University Madhya Pradesh