Precedent: stare decisis, ratio and obiter, Article 141, when a precedent loses force, and whether judges make law

LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit III: Modern: precedent and legislation. · LLB · 60 min

Precedent is the first of the two modern sources. This lecture defines judicial precedent and the doctrine of stare decisis, sets out the kinds of precedent, the tests for finding the ratio decidendi and separating it from obiter dicta, the hierarchy of courts in India under Article 141 and the Supreme Court's freedom with its own decisions (Bengal Immunity, Keshav Mills, Raghubir Singh), the circumstances that destroy or weaken a precedent (overruling, reversal, statute, per incuriam, sub silentio, distinguishing), prospective overruling after Golaknath, the declaratory-creative debate on whether judges make law (Vishaka, Article 142), and the advantages and limitations of case law. Every paper since 2018 has carried at least one question from this lecture.

Objectives

Define judicial precedent and stare decisis and state the leading definitions (Gray, Salmond, Keeton, Bentham)
Distinguish the kinds of precedent - original and declaratory, authoritative (absolute and conditional) and persuasive
Differentiate ratio decidendi from obiter dicta and apply Wambaugh's and Goodhart's tests, with Krishena Kumar
Explain the hierarchy of courts and the working of Article 141, including the Supreme Court's power to overrule itself
Analyse the circumstances that diminish the binding force of a precedent, prospective overruling, and the declaratory and creative theories of the judicial function

Slides

What is a precedent? The doctrine of stare decisis
Do judges declare or make law? The two theories
Kinds of precedent
Ratio decidendi and obiter dicta
The hierarchy of courts in India and Article 141
The Supreme Court and its own decisions
When a precedent loses its binding force
Prospective overruling
Advantages of precedent
Limitations of precedent

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