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Judicial Precedent as a Source of Law

8 min readUpdated Nov 2, 2026

Judicial precedent is one of the most important sources of law in modern legal systems, especially in countries that follow the common law tradition, such as England and India. It means that courts follow earlier judicial decisions when they decide similar cases. This gives certainty, consistency and stability to the administration of justice.

Where there is no legislation, or where a statute is unclear, courts rely heavily on precedent. Over time, judicial decisions have not only interpreted the law but also developed it.

Meaning and Definitions of Judicial Precedent

Judicial precedent

In the legal sense, a previous judicial decision that contains a principle of law and binds courts in later similar cases.

e.g.A High Court follows a Supreme Court judgment when it decides a similar case.
  1. Judicial precedent is judge-made law. It develops through judicial reasoning and interpretation.
  2. Gray: A precedent is a decision that furnishes a rule for later cases.
  3. Osborn: A precedent is a judicial decision that can be cited as an authority in deciding a similar case.
Jeremy BenthamCalled precedent

Judge-made law.

Bentham disliked it, and he preferred written codes.

  1. These definitions show that a precedent gets its authority from judicial recognition and acceptance.

Nature of Judicial Precedent

  1. A precedent rests on actual disputes, and not on abstract principles.
  2. It develops law gradually and practically.
  3. It binds courts through the doctrine of stare decisis.
  4. It supplements legislation by filling gaps and resolving ambiguities.
  5. Judicial precedent therefore represents law in action.

Theories of Judicial Precedent

01Declaratory theoryBlackstone, Coke, Story and Mansfield
Judges do not make law, but only declare the law that already exists.Law already exists, and judges only find and apply it. Blackstone said that judges are not delegated to pronounce a new law, but to maintain and expound the old one.Weakness: It ignores the creative role of judges, which is clear where the law is silent or unclear. Lord Reid, an English judge, said in 1972 that this view belongs to a fairy tale, and that we no longer believe in it.
02Creative theoryAustin, Holland, Gray, Bentham and Holmes
Judges not only interpret the law, but also create new law when they decide cases.Their decisions add new principles to the law. This is the more widely accepted view today.
  1. Two Indian examples show judges creating law.
    • In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court developed the basic structure doctrine, which the text of the Constitution does not state.
    • In Vishaka v. State of Rajasthan (1997), the Court made guidelines against sexual harassment at work, because no law existed.

Classification of Judicial Precedents (Salmond)

Salmond classifies precedents into authoritative and persuasive precedents.

Authoritative Precedents

Authoritative precedents are binding on courts. They are of two types.

  1. Absolute authoritative precedents must be followed whether or not the judge agrees with them. Under Article 141 of the Constitution, "the law declared by the Supreme Court shall be binding on all courts within the territory of India".
  2. Conditional authoritative precedents are binding, but a judge has some discretion. A court may depart from them in special circumstances.

Persuasive Precedents

  1. Persuasive precedents are not binding, but courts may follow them for guidance. Decisions of foreign courts, decisions of one High Court before another High Court, and obiter dicta are examples.
Kinds of precedent compared
KindBinding?Examples
Absolute authoritativeYes, alwaysDecisions of the Supreme Court, for all courts in India
Conditional authoritativeYes, but a court may depart in special casesA decision that a court may depart from for good reason
PersuasiveNoForeign decisions, decisions of other High Courts, obiter dicta

Doctrine of Stare Decisis

Stare decisis

To stand by decided cases. Courts are bound to follow their own earlier decisions.

e.g.A court decides a new dispute in the same way as an earlier dispute on the same point.
  1. The doctrine promotes certainty, uniformity and predictability in law.
  2. In England, the House of Lords was long bound by its own decisions. In 1966, by a Practice Statement, it said that it could depart from them when it appeared right to do so.
  3. In India, the doctrine applies strictly to subordinate courts, but the Supreme Court may depart from its earlier decisions when necessary. In Bengal Immunity Co. v. State of Bihar (1955), the Supreme Court held that it is not bound by its own earlier decisions. In Keshav Mills Co. v. CIT (1965), it said that it will do so only for compelling reasons.
  4. A bench of equal strength cannot overrule an earlier bench. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005), the Supreme Court held that if a bench disagrees with an earlier decision of equal strength, it must refer the matter to a larger bench.

Ratio Decidendi and Obiter Dicta

Ratio decidendi

The reason or principle of law on which a decision is based. It is the binding part of a judicial decision.

e.g.The rule that the judge selects and treats as binding authority for later cases.
Obiter dicta

Statements that a judge makes in passing, which are not essential to the decision.

e.g.A remark about a situation that the case did not actually involve.
  1. According to Dias, the ratio decidendi is the reason for the decision, the rule of law that the judge selects, and the principle treated as binding authority.
  2. Only the ratio decidendi binds. In Quinn v. Leathem (House of Lords, 1901), Lord Halsbury said that a case is an authority only for what it actually decides. In State of Orissa v. Sudhansu Sekhar Misra (1968), the Supreme Court said the same, and added that a case is not an authority for what may logically follow from it.
  3. According to Salmond, obiter dicta do not bind, but they have persuasive value and often guide later decisions.

When a Precedent Loses Its Force

  1. A precedent may be overruled by a higher or larger bench. In K.S. Puttaswamy v. Union of India (2017), a nine-judge bench overruled earlier decisions to the extent that they denied a right to privacy.
  2. A precedent may be distinguished. A court may say that the facts of the new case differ, so the earlier decision does not apply.
  3. A decision given per incuriam does not bind. This means a decision that was given without noticing a statute or a binding authority. In Young v. Bristol Aeroplane Co. (Court of Appeal, 1944), the court listed this as an exception to the rule that it must follow its own earlier decisions. In A.R. Antulay v. R.S. Nayak (1988), the Supreme Court applied the idea to correct its own earlier order.

Position of Judicial Precedent in India

  1. The Supreme Court is not bound by its own decisions. Its decisions bind all other courts under Article 141.
  2. High Courts are bound by Supreme Court decisions. Subordinate courts are bound by the decisions of their High Court. A High Court is not bound by another High Court, but it gives such decisions respect.
  3. Where Supreme Court decisions conflict, the decision of the larger bench must be followed. In Pyare Mohan Lal v. State of Jharkhand (2010), the Court applied this rule.
  4. High Courts cannot ignore Supreme Court judgments. In Mungeri Lal v. Jagdish (2002), it was held that a High Court cannot disregard a Supreme Court judgment on the ground that certain points were not considered.

Merits and Demerits of Judicial Precedent

Merits and demerits of judicial precedent
MeritsDemerits
Ensures certainty and uniformityDecisions may be complex and hard to find
Develops law scientificallyPrecedents may become rigid
Rests on real-life situationsConflicting judgments are possible
Restrains judicial arbitrarinessLaypersons find it hard to understand
Helps the efficient administration of justiceErrors may be repeated

Leading Case Laws

Kesavananda Bharati v. State of Kerala (1973)
FactsConstitutional amendments on property were challenged.
Decision and principleThe Court developed the basic structure doctrine. This shows the creative role of judges.
Vishaka v. State of Rajasthan (1997)
FactsThere was no law on sexual harassment at work.
Decision and principleThe Court made binding guidelines. Judges can fill gaps in the law.
Bengal Immunity Co. v. State of Bihar (1955)
FactsA sales tax case where an earlier decision was cited.
Decision and principleThe Supreme Court is not bound by its own earlier decisions.
Keshav Mills Co. v. CIT (1965)
FactsA request to reconsider an earlier decision.
Decision and principleThe Court will depart from an earlier decision only for compelling reasons.
Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005)
FactsA conflict between benches of equal strength.
Decision and principleA bench cannot overrule an equal bench. It must refer the matter to a larger bench.
Quinn v. Leathem (House of Lords, 1901)
FactsA question of how far an earlier decision binds.
Decision and principleA case is an authority only for what it actually decides.
K.S. Puttaswamy v. Union of India (2017)
FactsA challenge to earlier decisions that had denied a right to privacy.
Decision and principleA nine-judge bench overruled them to that extent.

Conclusion

Judicial precedent plays a major part in the growth of law. It bridges the gap between legislation and social reality by adapting legal principles to changing conditions. It has limits, but it gives consistency, stability and continuity to the legal system. It remains an indispensable source of law, especially in common law countries such as India.

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