DD: Sources of Law II

Stare Decisis

- Adhere to the decision and don’t unsettle established things.
- Intention to bring certainty and uniformity

Ratio Decidendi
- Underlying principle of a judicial decision
- Proposition of law necessary for the decision, or which can be extracted from the decision
- Decision based on material facts of the case – where issue to be answered on principles, extracting the material facts and disregarding the immaterial elements.
- Ratio decidendi or general principle has the binding effect as a precedent, not obiter dictum. Determination or separation of ratio from obiter isn’t so easy.

Obiter Dicta
- Said by the way
- Judicial utterances in the course of delivering a judgment, which taken by themselves weren’t necessary for that particular decision. 

PRINCIPAL SOURCES OF LAW
Customary Law: 
Even though this is the most ancient form of law, its importance is diminishing with the growth of legislation and precedent.

How customs are made:

In primitive society, the lives of the people were regulated by customs that developed spontaneously, and according to circumstance. It depended on what was convenient, and when the same thing was repeated, it became a custom.
Custom has a strong place in moulding Hindu law, but not so much in Muslim law.

Requisites:

1. Immemorial (antiquity): used for so long that the memory of man runs not to the contrary – if anyone can show the beginning, it isn’t good custom.
2. Certainty – definite, not vague and ambiguous
3. Reasonableness – useful and convenient to society – can’t be opposed to the principles of justice, equity and good conscience.
4. Compulsory observance – without interruption from time immemorial, regarded as obligatory or binding rule of conduct.
5. Conformity with law and public morality – or public policy; mustn’t conflict with statute law. If expressly forbidden by legislation and abrogated by statute, inapplicable.
6. Unanimity of opinion
7. Peaceable enjoyment
8. Consistency

Judicial Precedent aka Doctrine of Stare Decisis

Refers to the guidance or authority of past decisions of the courts for future cases. Only decisions that set down a new rule or principle are considered part of precedent.

General Principles:
1. Each court lower in the hierarchy is absolutely bound by the decisions of the courts above it.
2. In general, higher courts are bound by their own decisions – special feature of English courts. 

High Courts
a. The decisions of the HC are binding on all subordinate courts and tribunals, but have only persuasive value inter se – coordinate jurisdiction.
b. A single judge is the smallest Bench. A bench of two judges is called a Division Bench. Three or more judges constitute a full bench. A decision of a larger bench is binding on a smaller bench.
c. A decision by a bench of the HC should be followed by other Benches unless they have reason to differ, in which case the question should be referred for decision by a full bench.
d. Pre constitution Privy Council decisions are binding on the HC unless overruled by the Supreme Court.
e. SC is the highest court and its decisions are binding on all courts and other tribunals of the country. “Law declared” by SC includes obiter dictum provided it is on a point raised and argued. Not every statement, only that of ratio of the judgment. Not bound by its own decisions, but in practice, earlier decisions of the SC can’t be departed from unless there are extraordinary or special reasons to do so – like if the earlier decision is found erroneous and therefore detrimental to general public welfare.
f. English decisions have only persuasive value – SC not bound by Privy Council or Federal Court decisions.

Personal Law: Where an issue isn’t covered by any statutory law or custom. 

Hindu Law: 

- Shruthi – 4 vedas

- Smritis – recollections handed down by the rishis or ancient teachings and precepts; commentaries on smritis

- Hindus governed by personal law as modified by statute law and custom in all matters relating to inheritance, succession, marriage, adoption, co-parcenary, partition of joint family property, pious obligations, guardianship, maintenance and religious and charitable endowments. 

Muslim Law:

- Quran, actions, precepts and sayings of Prophet Mohd. – Hadis
- Ijmas – concurrence of opinion of the companions of the prophet and his disciples
- Kiyas – reasoning by analogy
- Digests and commentaries on muslim law
- Matters relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship and preemption. 

SECONDARY SOURCES OF LAW

Justice, Equity and Good Conscience

- Impey’s regulations, 1781
- Applicable in the absence of any rule of a statutory law or custom or personal law.
- Generally interpreted to mean English law on an analogous matter as modified to suit Indian context.