According to the doctrine of stare decisis, when a point of law has been once settled by a judicial decision, it forms a precedent which is binding and must be followed. The common law doctrine of stare decisis requires that the decisions of superior jurisdiction must have, apart from their intrinsic merit, a binding force for subsequent cases of like nature. It is this binding nature of certain judicial decisions that makes precedent an independent as well as an important source of law in common law jurisdictions (British Commonwealth including India, U.S.A.).
But in civil law countries (Russia, France, Germany, Italy, Japan and Latin American countries), no single decision even of the highest court is absolutely binding. Article 5 of French Civil Code provides that judges are forbidden… to decide a case by holding it was governed by a previous decision. The rational being that if an erroneous decision has been given, it ought not to be allowed to spread and so as to corrupt the judgment of other judges. Decisions should be based on laws, not on precedents.
It may be noted that full and strict operation of stare decisis cannot be ensured unless there is in existence – precise and reliable reports of cases decided by courts of superior jurisdiction, and a settled hierarchy of courts.
In India, precedents constitutes a very important source of law. The Supreme Court in a case observed that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary circumstances or special reasons to do so. The Supreme Court may depart from a previous decision if it is convinced of its error and its beneficial effect on the general interests of the public (Bengal Immunity Co. v State of Bihar AIR 1955 SC 661).
Also Read Austinian concept of Law/Austin’s concept of Positive Law
Also Read Sources of Law
Also Read Law and Morality
Also Read Concept of Law
Evaluation of the doctrine
In recent years there has been a good deal of criticism of the doctrine of stare decisis. The doctrine is supported on the following grounds :-
(i) Eliminates arbitrary decisions – If the litigants are to have faith in even-handed administration of justice, a similar rule should govern a similar case arising later eliminating thereby arbitrary and conflicting decisions on identical issues.
(ii) Speedy disposal of cases – Precedents help in saving valuable time and effort of the courts. The device provides ready answer to the judges faced with analogous problems promoting thereby speedy disposal of cases.
(iii) Predictability and practicability Precedents make the law predictable, thus introduces calculability in the planning of citizen’s activities. Predictability of a decision is more important than approximation to an ideal. Further, precedent law is created by its application to a specific situation, thus, it is more practical.
(iv) Law in action Law laid down in precedents is not only made by expert professionals but is the extreme manifestation of law in action – application of certain principles to specific fact
situation.
The doctrine is attacked on the following grounds :-
(i) Injustice may result – identical facts occurring at different places and times may not call, necessarily, for identical decision if justice is to be done.
(ii) Difficulties attending ratio – Application of the doctrine is not smooth by reason of the difficulties of extracting the ratio from the decided cases in which it lies embedded.
(iii) Perpetuation of wrong decision – Sometimes an erroneous decision is established as law, which spreads and corrupt the judgement of other judges.
(iv) Wilderness of single instance – The most serious charge against stare decisis is that it tends to make the law a ‘wilderness of single instance’, since legal issues are infinite in number and are infinitely various. Austin comments: “It is to the bulk of the community absolutely unknown and unknowable… even to the mass of lawyers it is imperfectly known and liable to be misconceived”.
The enormous bulk of judiciary law poses a serious danger to the very future of stare decisis. The physical labour of discovering all the existing relevant authorities on a given point and of keeping up with the annually fresh case law is becoming increasingly intolerable with each passing day. Thus there is a growing frequency of the overlooking of relevant, sometimes vital, authorities by the courts in coming to decisions.
Some suggestions to improve the situation are as follows – One is to limit the number of cases to be considered as binding (only the decisions of the highest court or cases published under the authority of court), other cases to be treated as mere evidence of law. Second suggestion favours codification of judiciary law. This may be accomplished through formal legislation depriving all decisions before the code of any binding effect; or through informal restatement of the law (having no binding authority but accepted as evidence of general line of legal development).
On the question of suitability of stare decisis to Indian conditions, the Law Commission of India opined: “The system was so bound up with the growth of law and judicial development in India that it was not practicable to go back upon it at the present stage even if the taking of such a step was desirable”.
The Law Commission in its 14th report observed that if decisions of superior courts or even of the same courts are not to be regarded as binding on the judges, it will be impossible for individuals to regulate their future conduct relying on any particular view of law. The man will cease to be certain and men will not know where they stand as regards their legal rights or obligations.