JURISPRUDENCE AND LEGAL THEORY

NAME – PRIYARANJAN BHARADWAJROLL. NO – 66

PRECEDENT AS A SOURCE OF LAW

IT IS AN IMPORTANT SOURCE OF LAW, AND IT IS A LEGAL SOURCE OF LAW ON WHICH COURT IS BOUND TO FOLLOW, IN ENGLISH LEGAL SYSTEM IT HAS AUTHORITATIVE IMPORTANCE.

PRECEDENT INCLUDES MERELY REPORTED CASE LAW WHICH MAY BE CITED AND FOLLOWED BY COURTS AND OTHER SIDE CASE LAW WHICH HAS GREAT BINDING AUTHORITY AND MUST BE FOLLOWED.

A STATEMENT OF LAW MADE BY JUDGE IN A CASE BECOME BINDING ON OTHER JUDGE AFTER HIM AND SUBORDINATE COURTS WHICH SUPPOSE TO FOLLOWED BY EVERY ONE. 2 FACTORS ON PRECEDENT BECOME BINDING:-

A. PRONOUNCED BY SUFFICIENTLY SENIOR COURT.B. ONLY THE RATIO DECIDEND.

SOMWATI V. STATE OF PUNJAB

JEREMY BENTHAM – PRECEDENT IS JUDGE MADE LAW.AUSTIN – JUDICERY’S LAW.KEETON – JUDICIAL PRONOUNCEMENT OF COURT.

NATURE OF JUDICIAL PRECEDENT

JUDGES CAN MAKE LAW BUT CANNOT ABOLISH IT. JUDGES HAS THE POWER TO REMOVE THE IMPERFECTION IN EXISTING LAWS.

JUDICIAL DECISION MAKING EITHER BY DEDUCTIVE OR INDUCTIVE.

1) IN DEDUCTIVE METHOD, LEGAL RULE IS APPLICABLE TO ANY PARTICULAR CASE

2) WHERE AS IN INDUCTIVE METHOD, FINDING THE GENERAL PRINCIPLE APPLICABLE TO PARTICULAR CASE AND APPLICATION OF RULE DIRECTLY DOESN'T CONCEIVE.

POSITION IN INDIAA. BEFORE THE INDEPENDENCE, IT WAS

RECOGNIZED UNDER SEC 212 OF GOVERNMENT OF INDIA ACT. 1935.

B. AFTER THE CONSTITUTION CAME INTO FORCE ARTICLE 141 GIVES A CONSTITUTIONAL STATUS TO DOCTRINE OF PRECEDENT AND SUPREME BECAME HIGHEST COURT AND ITS DECISION ARE BINDING ON ALL SUBORDINATE COURTS.

IN CASES BENGAL IMMUNITY LTD. V. STATE OF BIHAR

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