We derive what we refer to as law from a variety of sources whether it be legislations, customs or precedents. Because of increased globalization, international treaties and agreements are now also being used to make legislation. Despite these new innovations in lawmaking, one cannot forget the significance of judicial decisions in this process. As law and judgments have always had to be based on justice, fairness, and good faith, these decisions can be considered a credible basis to form regulations upon. This paper analyses the role of precedents and judicial decisions as a modern approach to Indian lawmaking. It ranges from the explanation of stare decisis to the cases where judiciary has legislated based on previous judgements as well as to the merits and demerits of using these decisions as a framework for laws.
Keywords: customs, precedents, globalization, justice, lawmaking.
Law is a collection of rules and regulations that we as a nation agree to obey in order to protect our own rights by not infringing on the rights of others. When one’s right to exercise is infringed upon by another, that right comes to an end. There are three established organs: the legislature to make laws, the executive to carry them out, and the judiciary to adjudicate on them in our democracy. These organs work in tandem and must avoid interfering with the fields that have been carved out for them. Although interference is often necessary to maintain checks and balances, it must never be done with malice. Therefore, it can be said that a judicial organ exists in every established legal system which has a key role, that is, to decide on citizens’ rights and obligations.
The judges were initially driven by customs and their own sense of fairness. However, when society progressed, legislation became the primary source of law, and judges began to base their rulings on it thereby making it one of the most important legal sources now. But the importance of customs cannot be overlooked as they have been passed down over the generations and have been in use since the dawn of time.
A custom is described as a type of inheritance or passing down from generation to generation. These customs serve as the foundation for laws. Since laws represent society, it is important to incorporate the different traditions of the various parts in order to protect the interests of a diverse community. Even at this point, the judges have a creative role to play. In cases of first experience, interpretation, or filling in any gaps in the law created by legislation, judges rely on their sense of right and wrong to some degree, and in doing so, they adapt the law to the changed circumstances. This highlights the importance of judicial decisions and formation of precedents.
Courts have a duty to interpret laws. They have to fill the voids and cover the gaps that may have been overlooked by the legislators at the time of forming the legislation. They further have an immense duty on their shoulders, that of, developing rules for the subsequent cases as the cases decided today will set the standards for interpretation of cases that may come in the future. In common-law systems, such decisions are regarded as precedents, and they are rules and regulations that have the same authority as a law passed by a legislature. As a result, not just legislatures but also courts make law. Judicial precedents are based on the principle of stare decisis, and they often serve as a source of law since they serve as a backbone or help in cases containing similar facts. The researcher in this paper aims to study the concept of Judicial Decisions in the Indian Context. From the ideas received, the paper contains descriptive and analytical study of the scenario of how the judicial decisions made on previous cases take place. The researcher also aims to give an idea of the major judicial developments and cases decided by Supreme Court related to this concept along with a discussion on the merits and demerits related to Judicial lawmaking as an approach to law.
Doctrine of Stare Decisis
This legal principle of stare decisis requires judges to follow precedents developed by previous decisions. The phrase comes from the Latin maxim Stare decisis et non quieta movere, which means ‘to stand by decisions and not disturb the undisturbed.’ In a legal sense, this means that courts should usually follow precedents and not disturb settled matters. In layman language, we can simply say that a court must follow the rules established by a higher court because if different judges gave different opinions in different courts about the same fact, there would be utter confusion and chaos while many parties may even feel violated and helpless, as if justice had not been done to them.
The idea of a legally binding precedent is well-known. Higher court rulings bind not only lower courts in the hierarchy, but even benches of lower strength of judges within the same court, even though there are an equal number of judges of co-ordinate jurisdiction. As a result, any subsequent Division Bench in co-ordinate jurisdiction is bound by a Division Bench’s decision (equal number of Judges). It can’t make a different decision, but it can refer the case to the Larger Bench with judicial approval. The Supreme Court’s decision would be binding on all courts within India’s borders, according to the text.
This concept was created to cope with the pressures of work and the assignment of cases to benches, especially in Courts with a sizable number of Judges, in order to maintain judicial decorum, propriety, and discipline, as well as to avoid offending the settled law from each individual view. In Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel & Ors.,it was held by the Supreme Court that the Single Judge of the High Court is bound to accept as correct judgments of Courts of Co-ordinate Jurisdiction, Division Benches, Full Benches, and the Supreme Court. The need for uniformity and certainty in the law is the driving force behind the rule that makes a precedent binding. Further strengthening this principle in the case of Krishena Kumar v. Union of India, the court stated that “When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it.” Therefore, a judicial decision acting as a law for the cases with similar facts reinforces the idea of judicial lawmaking.
Process of decision
“The first of three steps is the process of finding or selection, and asking what it involves. It may involve nothing more than a selection from among fixed precepts of determined content calling only for a mechanical ascertainment of whether the facts fit the rule. Or it may involve selection from competing analogies, urged by the respective parties as the ground of decision. Here, as it were, there is to be an inductive selection. Or it may involve selection by logical development of conceptions or principles. Here, as it were, there is a deductive selection. If these fail, it calls for selection from outside of the legal system in whole or in part – from custom, from comparative law, from morals, or from economics.”
The inductive approach places a great deal of reliance on the judges’ decisions. Judges examine previously determined cases of a similar type by their own court or the superior court before making a decision. They derive general rules from specific cases, adapt them to the cases in front of them, and make decisions accordingly. This is referred to as the inductive form whereas in the deductive method, the legislatures and the enacted statutes are heavily relied upon. It may seem to be a positivist approach, but most judges are now free to interpret the law as they see fit in order to promote justice, fairness, and good conscience. Cases are determined in this scheme based on existing laws and regulations that have been codified, and judges decide cases based on these statutes. The judges in this case should not make decisions based on prior decisions. “There is no standard method of determining between them, although some judges habitually proceed in the one way and others as habitually proceed in the other. The mental bent of the particular judge or the availability of the result with reference to the particular case seem to be the decisive factors. Likewise there is no standard practice determining when to invoke custom, when comparative law, when current morals and when economics, in case selection must be made from outside of the legal system.”
“In the second step in decision, namely, development of the grounds of decision from the material selected, the usual process is one of traditional legal reasoning”,while other is the rationalist approach. Along with these, we must convey the magistrate’s perspective as a lawyer and as a judge, as well as an understanding about what will produce justice in motion and what will not. Traditional legal reasoning is based on the experience of previous generations of judges. It is, in certain ways, a judicial insight based on experience that has been passed down over the generations. Rationalism excels as a method for constructing judicial decision-making grounds from materials culled from previously published decisions. Except in simple cases, it is normally at its worst when establishing judicial decision-making grounds based on legislative materials.
“The third step is the application of previously decided cases to the facts of case at hand. Application of the abstract grounds of decision to the facts of the particular case may be purely mechanical. But there is a more important form of application which is of a wholly distinct type. Frequently application of the legal precept, as found and interpreted, is intuitive.”
Cases where Indian Judiciary legislated.
In India, a review of judicial action that has taken place over the last few decades, reveals the dramatic change in the Supreme Court’s approach. Several articles of the Indian Constitution, such as Articles 13, 32, 131-136, 143, 226 and 246 expressly grant the right of judicial review. Furthermore, under Art. 141, the Supreme Court has the authority to declare any statute binding on all other courts as an authoritative precedent. “Under Art. 142, the Supreme Court is entitled to pass any decree, or make any order, as it necessary for doing complete justice. A cumulative effect of all these provisions makes it abundantly clear that the judiciary in India has vast powers under the Constitutional scheme which they use to justify judicial law-making.” The full change in interpretation of Article 21 of the Constitution from Gopalan to Maneka is the best example of judicial lawmaking in the Indian sense. “The significant aspect of this case is that the Court gave a new dimension to the principle of constitutional interpretation that there cannot be a mere textual construction of the words of the Constitution. Those words are pregnant with meanings that unfold when different situation arise. The Court started interpreting the Constitution in a liberal manner, so as to anticipate and take account of changing conditions.” It should also be remembered that the Court has given guidance and directives in cases where no law applies or where there are flaws in the law on many occasions. In the decision in Vishaka v. State of Rajasthan, The Court issued a number of directions to prevent sexual harassment of women in the workplace. In Laxmi Kant Pandey v. Union of India, the court established instructions on the procedure to be followed and the suitable precautions to be followed when adopting Indian children by international adoptive parents. Further, to ensure police transparency, the Court issued time-bound directions in Prakash Singh v. Union of India, including the establishment of a State Security Commission, the selection and minimum periods for the DGP and the IG, division of investigations, and the formation of a National Security Commission. In re Destruction of Public & Private Properties v. State of A.P., the Court gave extensive directions for the implementation of preventive measures and for investigation, taking meticulous note of incidents in which large-scale destruction of public and private assets occurred in the name of bandhs and hartals. There are various examples of the law-making by judges in India, even if such law-making falls short of the legislature’s ability to pass legislation.
Judicial Decisions and Precedents comprise a lot of merits. They guarantee that each matter will be dealt with and resolved in a manner comparable to past rulings. There is a level of predictability and continuity. Precedents aid the legal system to be more flexible. As judges do not originate the laws, it is up to the them to interpret the laws as accurately as possible. This allows them to adapt the law to new conditions, making it more flexible. Further, Judges and attorneys benefit from precedents because they reduce the amount of work they have to undertake. It is not necessary to argue the same issue again in subsequent related cases until the question about a particular matter has been resolved. As a result, judges can spend less time deliberating because they already have insight to how others make decisions. This benefit can also help to minimize crime rates by shedding light on the repercussions of wrongdoing against the state. Judges are guided by precedents, and as a result, they are prohibited from making mistakes that they would have made otherwise. When everybody is on the same page, there are less chances of making errors. People’s confidence in the courts is bolstered when cases are decided based on well-established principles. It demonstrates appreciation for one’s ancestors’ viewpoint. On this basis, eminent jurists such as Coke and Blackstone have backed the doctrine. They say there are always explanations behind people’s views, which we may or may not understand and courts adhere to them because judicial rulings are the most reliable and conclusive proof of the presence of a tradition that is to become part of the common law. Therefore, as precedents are judge- made legislation based on real-life examples unlike like statute law, which is founded on an a priori assumption, they help the law evolve and introduce technological advancement to the legal system.
Despite its merits, using judicial decisions as an approach to law making is not an infallible method. 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 because of the huge number of lawsuits, resulting in the risk of valuable suggestions being overlooked. Finding a wide variety of experts on the subject becomes challenging. Superior court decisions that clash will place lower court judges in a difficult position. Since 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. The theory of precedent has the major flaw of relying on the outcomes of court cases to develop the rule. Since no action was taken against them, some of the most relevant points could go unresolved. Another serious flaw, or perhaps an anomaly, is that it may often result in an exceedingly flawed decision being defined as law because it was not brought before a higher court.
We may deduce from the above discussion of the legal importance of precedents that they play a critical role in filling in the gaps in the law and various statutes. These often aid in the upholding of regional customs, resulting in morally appropriate decisions for the citizens. As a result, citizens have more faith in the judiciary, which aids legal development because it is simple to demonstrate that the legal order has always been and continues to be a system of compromises between contending and overlapping human claims, wishes, or desires, in which the constant strain of these claims, as well as the claims involved in civilized social life, has compelled legislators, judges, and other decision-makers to reach compromises. When it comes to the social interest and free assertion claims of individuals which are supported thereby, free judicial determination of the grounds for the case at hand is the best way to achieve a viable compromise; and it has been the case always, regardless of how rigidly bound the courts in theory by the texts of the codification are. “But one of the chiefest of human claims in civilized society is the general security, and this paramount interest requires a dis- tinction between judicial lawmaking through decisions in their capacity of precedents and legislative lawmaking. For legislative lawmaking, at least in its ideal form, prescribes a rule for the future to apply to the situations and transactions of the future. Judicial declaration of law, on the other hand, prescribes a rule with reference to and as a measure for a situation
or transaction of the past and, as a precedent, is to be applied to past and future alike.” “The process of adjudication is complex and vague, but necessarily so, for it reflects the complex and vague beliefs and attitudes of those officials, litigants, and members of the public who shape it and are ruled by it. Perhaps greater care in framing arguments and analysing precedent will not only aid the achievement of clarity in adjudication, but the alleviation of injustice.”
- Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel & Ors., AIR 1968 SC 372.
- Krishena Kumar v. Union of India, (1990) 4 SCC 207.
- A.K Gopalan v. State of Madras, AIR 1950 SC 27.
- Maneka Gandhi v. Union of India, AIR 1978 SC 597.
- Vishaka v. State of Rajasthan, (1997) 6 SCC 241
- Laxmi Kant Pandey v. Union of India, (1987) 1 SCC 66.
- Prakash Singh v. Union of India, (2006) 8 SCC 1.
- Re Destruction of Public & Private Properties v. State of A.P, AIR 2009 SC 2266.
- Pound Roscoe, ‘The Theory of Judicial Decision. III. A Theory of Judicial Decision for Today’,  36 (8) Harvard Law Review 940
- Wadhwa Isha, JUDICIAL LAWMAKING IN INDIA, Available at: https://amity.edu/UserFiles/aibs/8818Dr.%20Isha%20Wadhwa.pdf (Visited on 8 June, 2021).
- Levin Joel, The Concept of the Judicial Decision,  33 Case W Res L Rev 208. Available at: https://scholarlycommons.law.case.edu/caselrev/vol33/iss2/4
- Drobak John and North Douglass, ‘Understanding Judicial Decision-Making: The Importance of Constraints on Non-Rational Deliberations’,  26 WASH U J L & POL’Y 131.
- Kaur Kiranpreet, India: Judicial Precedents in India, https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-precedents-in-india (Visited on 8 June, 2021).