From Vishakha Guidelines judgement to the Shah Bano case, TNM looks at how and why certain judgements go onto set a precedent.

Explainer How judgements and observations become judicial precedentsImage for representation
news Court Thursday, August 23, 2018 - 13:21

In the year 1996, the highest court of India passed a landmark verdict. Hearing a public interest litigation filed by the Vellore Citizen’s Welfare Forum against the pollution caused by the discharge of effluents by the tanneries and industries in Tamil Nadu, the Supreme Court put in place the ‘polluters pays principle’ precedent.

“An industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area,” ruled the Supreme Court. 

In simple terms, a judicial precedent is a judgement of a court of law in India which is cited as an authority to decide a similar set of facts and which can be used by the court as a source for future decision making.

The Vishakha Guidelines judgement, the Shah Bano case – these are all judgements passed by the Supreme Court which have gone on to become judicial precedents and from there, have forced the Executive to include them in the Constitution as laws. The Vishakha Guidelines became the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Shah Bano case has inspired the government of India’s anti-triple talaq Bill which was passed in the Lok Sabha last year and is currently pending in the Rajya Sabha.

So how exactly do such observations or judgements become judicial precedents?

“The best example is the Vishakha guidelines case. The Supreme Court said that there should be a new law which has to be enacted by a state, protecting women at workplaces. Having said that, the SC added that we know the state will not exact a law very soon so until such time, they gave these guidelines,” said advocate Sudha Ramalingam, speaking to The News Minute.

However, not every judgement by every court becomes a precedent. Not every judgement passed by a particular court in any particular case – especially the highly publicised ones – act as judicial precedents.

“There is no particular rule that decides whether a particular judgement becomes a judicial precedent. A judgement has to be read in toto, find out the circumstances and then only does it become a precedent,” advocate Ramalingam explains.

A ruling by a court acts as a precedent only for the lower court.  A judgement pronounced by the Supreme Court is considered a precedent for a High court and such a precedent is called a binding precedent. A judgement by a High Court can be used only as a persuasive precedent in another High Court.

The precedents are decided on the basis of ‘ratio decidendi,’ which means ‘the rule of law on which a judicial decision is based.’

As stated by the Bombay High Court while hearing the case of state of Maharashtra versus Prashram Jagannath Auti in 2007, “The ratio is variously defined to be the relation between two magnitudes of the same kind in terms of quality and quantity. Ratio decidendi is the reason for deciding as reasoning is the soul of decision-making process.”

“Anything pronounced by the Supreme Court is binding, take for example, the Madras High Court. The Madras district court is bound both by the Madras High Court as well as the Supreme Court,” advocate Ramalingam added.

Additionally, for a precedent to be considered binding, a reference has to be made keeping in mind the controversy at hand, the statutory provisions that are discussed as well as the reasoning given by the judges hearing the particular case to come to the conclusion reached. There must also be a clear statement on the law and the principles that were settled upon or answered by the judgement. 

“To be a good precedent, it has to be an adjudged case or decision of a court of competent jurisdiction considered as furnishing an example or authority for an identical or similar case or a similar question of law afterward arising,” a Bombay High Court bench had said in 2007.

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