sem6 nirvikalp shukla jurisprudence 2 roll no105

8/18/2019 Sem6 Nirvikalp Shukla Jurisprudence 2 Roll No105

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Original and declaratory theory of precedent

PROJECT ON


SUBMITTED TO: M!"n#$riti Mihra

%&"CU'T( O& J#ripr#dence)

SUBMITTED B(: Nir*i$alp Sh#$la

RO'' NO!: +,-SEMESTER: .I

SECTION: C

D"TE O& SUBMISSION: ,/0,/01,+2

3ID"("TU''"3 N"TION"' '"4 UNI.ERSIT(5 R"IPUR

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Acknowledgements

First & foremost, I take this opportunity to thank Ms.Anukriti Mishra, Faculty

Jurisprudence, !"#, for allotting me this challenging topic to $ork on. %he has een

'ery kind in pro'iding inputs for this $ork, y $ay of suggestions.

I $ould also like to thank my dear colleagues and friends in the #ni'ersity, $ho ha'e

helped me $ith ideas aout this $ork. "ast, ut not the least I thank the #ni'ersity

Administration for e(uipping the #ni'ersity $ith such good lirary and I.). facilities,

$ithout $hich, no dout this $ork $ould not ha'e taken this shape in correct time.

Nir*i$alp Sh#$la

Se6eter0.I5 Batch07I

Roll no0+,-

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ABBREVIATIONS USED

+.g..+ampli ratia+d...+dition

/rs.../thers

pPage !umer

$$$..0orld 0ide 0e

CONTENTS

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+! Introd#ction88!!888888!!!8888888888888888!!,2

1! 4hat i precedent9!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!,

;! I6portance of precedent8888!!!888!88888888!!88!8!!!!,<

/! Type of precedent!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!,=

-! E>tent of ?inding88888888!!!888888888888888+1

2! 4hat i ?inding:The ratio decidendi 888888888888888!!+/

! Original and declaratory precedent8888888888888888!+

=! Reference8888888888!8888888888888888!!1,

RESEARCH METHODOLOGY



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)his pro3ect $ork is descripti'e & analytical in approach. It is largely ased on secondary

& electronic sources of data. 4ooks & other references as guided y faculty of

Jurisprudence , are primarily helpful for the completion of this pro3ect.

OBECTIVES O! THIS "ROECT

5arious o3ecti'es are to e achie'ed y this pro3ect6 $hich are mentioned elo$.

)o understand and analy7e the 8eclaratory and /riginal theories of precedent

)o understand the role played y Precedent as a source of la$.

Int#od$ct%on



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In common la$ legal systems, a precedent or a#thority is a principle or rule estalished

in a pre'ious legal case that is either inding on or persuasi'e for a court or other triunal

$hen deciding suse(uent cases $ith similar issues or facts. )he general principle

in common la$ legal systems is that similar cases should e decided so as to gi'e similar

and predictale outcomes, and the principle of precedent is the mechanism y $hich that

goal is attained. 4lack:s "a$ 8ictionary defines ;precedent; as a ;rule of la$ estalished

for the first time y a court for a particular type of case and thereafter referred to in

deciding similar cases.;1 .

Stare decisis is a legal principle y $hich 3udges are oliged to respect the precedent

estalished y prior decisions. )he $ords originate from the phrasing of the principle in

the "atin maim Stare decisis et non quieta movere? ;to stand y decisions and not

distur the undistured.; In a legal contet, this is understood to mean that courts should

generally aide y precedent and not distur settled matters.

Cae la@ is the set of eisting rulings $hich ha'e made ne$ interpretations of la$ and,

therefore, can e cited as precedent. In most countries, including most +uropean

countries, the term is applied to any set of rulings on la$ $hich is guided y pre'ious

rulings, for eample, pre'ious decisions of a go'ernment agency - that is, precedentialcase la$ can arise from either a 3udicial ruling or a ruling of an ad3udication $ithin an

eecuti'e ranch agency. )rials and hearings that do not result in $ritten decisions of

a court of record do not create precedent for future court decisions.

&'(t %s ( )#ecedent*A precedent is a statement of la$ found in a 3udicial decision of a igh


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)hus, a precedent is the ratio of a decision $hich should e 3udicially applied in a gi'en

case.

It has almost ecome fashion-ale to (uote precedent after precedent in order to make a

point. A personDs erudition is measured y the numer of cases that he can (uote. And the

contrary is also e(ually true. If a person cannot (uote enough numer of decisions ut can

other$ise interpret a la$ correctly6 then his point, though eing correct in la$, may face

re3ection. )he undue importance attached to precedents almost creates a monopoly in

fa'our of some $ho alone can make a statement on la$ and if the same statement of la$

is made y others $ho ingeniously interpret la$, the statement $ill e diselie'ed. )he

$hole state of affairs places an enormous responsiility on the )riunal and higher


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)he la$ laid do$n y %upreme


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'alue to $hich %


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their o$n 3urisprudence. M.C. Mehta and another v. *nion o' +ndia and others , AIG

1B %< 1@C? 1B=1> %


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E-TENT O! BINDING


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It is for the higher court $hich $ill in due time decide et$een the competing precedents,

formally o'erruling one of them and sanctioning the other as good la$. In the mean time

matters remains at large ad the la$ uncertain.



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&HAT IS BINDING . THE RATIODECIDENDI

)he decision or 3udgement of a 3udge may fall into t$o parts? the ratio decidendi =reason

for the decision> and obiter dictum =something said y the $ay>.

)he principles of 4inding Precedent apply only $hen the facts must e sufficiently

similar and the court must e more senior or on the same le'el.

It is only the ratio decidendi =the legal reasoning or ground for the 3udicial decision>

$hich is inding on later courts under the system of 3udicial precedent.

RATIO DECIDENDI –)he ratio decidendi of a case is the principle of la$ on $hich a decision is ased. 0hen a

3udge deli'ers 3udgement in a case he outlines the facts $hich he finds ha'e een pro'edon the e'idence. )hen he applies the la$ to those facts and arri'es at a decision, for

$hich he gi'es the reason =ratio decidendi>.

OBITER DICTUM –)he 3udge may go on to speculate aout $hat his decision $ould or might ha'e een if

the facts of the case had een different. )his is an oiter dictum.

)he inding part of a 3udicial decision is the ratio decidendi. An oiter dictum is

not inding in later cases ecause it $as not strictly rele'ant to the matter in issue in the

original case. o$e'er, an oiter dictum may e of persuasi'e =as opposed to inding>

authority in later cases.



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A difficulty arises in that, although the 3udge $ill gi'e reasons for his decision, he $ill

not al$ays say $hat the ratio decidendi is, and it is then up to a later 3udge to ;elicit; the

ratio of the case. )here may, ho$e'er, e disagreement o'er $hat the ratio is and there

may e more than one ratio.

In a 3udgement deli'ered y a court, $hat part is a inding precedent is rele'ant so as to

e precise as to $hat is ultimately iding proposition to other courts. 0hat the court

decides generally is ratio decidendi or rule of la$ $hich it is authority. As against persons

not parties to suit or proceeding general rule of la$ i,e ratio decidendi is inding . )he

rule of la$ or ratio decidendi is that $hat is applied and acted upon y the


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correctly understood. It is the rule deducile from the application of la$ to the facts and

circumstances of a case $hich constitutes its ratio decidendi and not some conclusion

ased upon facts $hich may appear to e similar. /ne additional or different fact can

make a $orld of difference et$een conclusions in t$o cases e'en $hen the same

principles are applied in each case to similar facts.

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O#%g%n(l (nd Decl(#(to#,

)#ecedentsOriginal Precedent

1. Meaning? an original precedent is one $hich creates and applies a ne$ rule.

*. +amples? =a> 4himsingh 's. JH o'ernment1* AIG 1C %< 22 in this haeas

corpus case 4himsingh, an M.".A. $as detained y JH police. )he %upreme

* +G 1*C case is an eample of original precedent for injuria sine

damnum.

. It creates a ne$ rule.

2. )he numer of original precedents is small.

9. /riginal precedents de'elop in la$ in the country.

C. /riginal precedent is a ne$ la$ created and follo$ed in the future.

B. /riginal precedent is greater than declaratory precedents.

. )here is a hea'y urden and task mental tension on the 3udge $ho pronounces

original precedents to interpret the ne$ situations.

Declarator Precedents

1. M+A!I!? A declaratory precedent is one $hich is merely the application of an

already eisting rule of la$.

*. +ample? 4ha'asagar 's. %tate of A.P. 1.

)he igh


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8isposing the 5abeas Cor6us petition, the igh


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ade(uately recognised. Much of the reluctance on the part of the administrator to interpret

the la$ on his o$n arises from the lack of trust placed in him y the o'ernment.

RE!ERENCES

BOOS RE&ERRED

%P %athe, Administrati'e la$=*@1*>,Bth +dition, "eis-!eis 4utter$orths

0adh$a,!agpur

I.P Massey, dministrative la, =*@@B>, +ighth +dition, +astern 4ook company

/ur Contit#tion? An Introduction to IndiaDs .

4EBSITES RE&ERRED

1. http?EElegal-dictionary.thefreedictionary.com*. http?EE$$$.casonline.orgE

. http?EE$$$.legalser'iceindia.comE

2. http?EEen.$ikipedia.orgE

Stat#te

)he


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• M.C. Mehta and another v. *nion o' +ndia and others, AIG 1B %< 1@C?

1B=1> % * +G 1*C

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sem6 nirvikalp shukla jurisprudence 2 roll no105

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