top of page


"The policy of the courts and the principal upon which rests the authority of the judicial decisions as precedents in subsequent litigations, is embodied in the maxim ‘Stare Decisis et non quieta movere’ - to abide by the precedents and not to disturb the settled points.”

This feature of the Common Law was aimed at giving stability that is needed at at the same time not restricting the necessary growth. Lord Dillon defined it as: "That a decision by a court of competent jurisdiction of a point of law lying so squarely in the pathway of judicial judgment that the case could not be adjudged without deciding it, is not only binding upon the parties to the cause in judgment, but the point so decided becomes, until it is reversed and overruled, evidence of what the law is in like cases, which the courts are bound to follow not only in the cases precisely like the one which was first determined but also in those, which however different in origin, or special circumstances, stand, or are considered to stand, upon the same principle.”

By this definition we can say that a judicial decision constitutes a rule of conduct that is repealed only after the court’s will for a valid reason or by the positive enactment of the legislation. Many also referred to the principle of stare decisis as the law made by the judges.

Both horizontally and vertically, the ideology works. A court's horizontal stare decisis applies to it following its own precedent. When a court follows precedent set by a higher court, it is known as vertical stare decisis.

Origin of the Maxim:

The origins of the stare decisis doctrine are unknown in antiquity. Some believe that it originated in the Witenagemonte, where all men with made laws and adjusted them, and the power of judging was afterwards assumed by the advisors who became the earliest judges. Others, like Spence, contend that the rule of precedent had its origin in the jus praetorium of the Roman Law, where the praetor issued irrevocable edicts having the effect of laws. In England, this concept started in the middle 19th century. Till then the court is not bound by its previous decision unless it was confident that the judgement in the previous case is accurate.

Lord Halsbury, once stated, in London Tramways Co. Ltd. v. London County Council, [1898] A.C. 375 at page 379, that, “A decision of this House once given upon a point of law is conclusive, upon this House afterwards, and it is impossible to raise that question again as if it were res integra and could be reargued, and so the House be asked to reverse its own decision. “

After abiding that inflexible rule for some decades Lord Gardiner, on July 26, 1966 read out statements on behalf of the Law Lords:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely inthe conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice ina particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treat- ing former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

Of all the statements, the last statement plays a pivotal role. It states that the power of the highest court to reverse its decisions does not extend to permit lower courts to ignore binding precedent.

After all, the rule is the foundation of common law. Underneath the rule's apparent simplicity, however, there is an inherent conflict between the need to keep the law consistent and the desire to avoid perpetuating error. Subtle nuances in the rule's implementation and the waxing and waning of the rule's strictness over time are manifestations of this uncertainty.

Initially, the rule is believed to have got some binding force from the notion that judges don’t make the law, but rather discover it. The judge's province is jus dicere, and not jus dare. By this view, law exists independent of any individual judge’s perception of it. It may be argued that, since prior case law is simply the expression of what previous judges have found, a subsequent judge could not change the common law any further than a physicist could change the law of gravity. Two major reasons for the existence of the rule are :

  • Judicial comity

  • The desirability of uniformity in the application of the law so that B shall not on Tuesday lose a lawsuit based on the same facts and principles that have enabled A to win a lawsuit on Monday.

Law of Precedents in Indian Context:

"The law proclaimed by the Supreme Court shall be binding on all courts within the jurisdiction of India," says Article 141 of the Indian Constitution. The term "all courts" is used in Article 141, which raises the question of whether the Supreme Court is included in the domain of all courts. That is, whether or not the Supreme Court is bound by its own rulings. The case of Kesavananda Bharti vs State of Kerala provides the most relevant example of the rule that the Supreme Court is not bound by its own decisions. In a number of other cases, the Supreme Court has clarified the issue.

Under the Article 141 of the Constitution of India, certain judgements do not have binding effect.

“ Judgments which include the following are not considered as a precedent:

  • The judgment that is not expressed.

  • The judgment not founded on reasons.

  • An Obiter Dicta of a case is not binding as it has a persuasive value.

  • Judgments made on Per Incuriam cannot be used as precedent. Literal meaning of per incuriam is resulting from ignorance.

  • Judgments where point of law or particular question of law was not consciously determined are also not binding.

  • Court's observations on the facts of the case are not binding.”

Supreme Court On Judicial Precedents:

It was held in Union of India vs. Raghubir Singh that,"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.” The Hon'ble Apex Court held in the case of Commissioner of Income Tax Vs. M/s Sun Engineering Works Private Limited that, “While applying the decision to a latter cases, the court must carefully try to ascertain the true principle laid down by the decision of Supreme Court and not to pick out words or sentences from the judgments divorced from the context of question under consideration by the court to support their reasoning.” Even if the Supreme Court issues an interim order, it is limited to that case and should not be used as precedent in other cases, particularly if the Supreme Court has already authoritatively decided the question at hand in the latter case. In Megh Singh Vs. State of Punjab, the Supreme Court held that, “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect.” The Supreme Court stated in Suganthi Suresh Kumar, “It is impermissible for a High Court to over rule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point. High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court.”

Having a legal system that follows and depends upon its past decisions is very beneficial in many ways. There exists a consistency and predictability that helps lawyers to provide better solutions to their clients regarding specific subject matter. This also creates a way of checks and balances and therefore makes sure that same law is followed through out the country. Confidence of public on the judiciary increases and there is lesser scope for mistakes.

Many critics of this principle opined that the long existent nature of the doctrine has led to the collection of numerous judgements and if this continues for another 50 years then the libraries of the attorneys would be filled and thereby overstraining their resources. Bentham, that great constructive critic of the Common Law, unlike Blackstone, saw no virtue in it. Austin says that judicial law "compels the judge to take the narrowest possible view of every subject, and consequently the law he makes is necessarily restricted to the particular case which gives occasion for its promulgation.” Since there are so many case rules, there is a lot of confusion. Every judge expresses his or her own opinion on the subject in order to set further precedents. Since judgments are so lengthy, it becomes difficult for lawyers and judges working on similar cases to decide what is relevant and what is not. Finding applicable case law on a specific topic can be a time-consuming process.

Another criticism is that judicial establishment of principles is often contrary to reason or justice. There were chances that the case might not be well argued or may be the expediency has some over powering influence on the judges or some other reasons were existing. Moreover, as lower courts are bound by the judgments of higher courts, precedents provide rigidity in the structure. The culture is not static, and social, economic, and other conditions change over time. Changes in circumstances can necessitate a new interpretation of the law. In reality, binding precedents can stymie legal progress.

“When the present contemporary situation is analysed then we can understand that only facts are examined in detail and moreover modern briefs have too often become mere complications of authorities rather than a series of legal deductions of reason. Many cases, one hundred, two hundred, even more, are cited in a single brief. The progress of justice is cluttered by citations. The rule among lawyers seems to be that the more the citations, the. stronger the authority. They search for precedents, not for reasons. Now, broad principles of law are stretched to cover cases scarcely analogous; and those misapplied principles are stretched to cover still additional merely analogous cases. It is contended that the body of the law is now sufficiently mature in development to be codified in imitation of the Civil Law codes. Codification appears to be the present tendency. But codification means inelasticity, though absolute certainty. However, a code is not inflexible. There is always recourse to the legislature, which Bentham insisted, was the only body empowered to prescribe the law. So it is very important for the courts to maintain a balance between the consistency and the growth or development of law.”


Rajasri Reddy Dwarampudi

Damodaram Sanjivayya National Law University

Vishakhpatnam, (2020-2025)

87 views0 comments

Recent Posts

See All

I. BACKGROUND The advancement of internet trend has caused a shift in the business sector. Many business organisations have migrated to the internet realm of marketing and commerce, inc

Introduction Black’s law dictionary defines Double Jeopardy as: – A second prosecution after a first trial for the same offense. In India, protection against double jeopardy could be an elementary rig

INTRODUCTION Indian Parliament, in the preceding year passed three bills related to agriculture and farming, together known as the Farmers Bill. The Bills include The Farmer’s Produce Trade and Commer

bottom of page