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Unit-III
The sources of law
Ramesh Arjun
Legal and Historical sources

S
ources of law can be classified as either legal or historical.

 The former are those sources which are recognized as such by the law itself.
 The latter are those sources lacking formal recognition by the law.
 The legal sources of law are authoritative, the historical are unauthoritative.
 The former are allowed by the law courts as of right the latter have no such
claim.
 They influence more or less extensively the course of legal development, but
they speak with no authority.
 No rule of law demands their recognition.
 Thus both the statute book and the work of jermy Bentham are material
sources of English law.
 The legal sources are the only gates through which new principles can find
entrance into the law.
 Historical sources operate only mediately and indirectly.
 They are merely the various precedent links in that chain of which the
ultimate link must be some legal source to which the rule of law is directly
attached.
 For every legal system contains certain rules of recognition determining the
establishment of new law and the disappearance of old.
 That is to say, it contains certain rules to this effect;
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 that all new principles which conform to such and such requirements are to
be recognized as new principles of law and applied accordingly in
substitution for or as supplementary to the old.
 Thus it is itself a principle of English law that any principle involved in a
judicial decision has the force of law.
 Similar legal recognition is extended to the law-producing effect of statutes
and immemorial customs.
 Rules such as these establish the sources of the law.
A source of law, then, is any fact which in accordance with such basic legal rules
determines the recognition and acceptance of any new rule as having the force of
law.
The nature of legislation
The term legislation is derived from two Latin words, Legis meaning law and
latum meaning to make, put or set.
 Etymologically, legislation means the making or the setting of law.
 Legislation is that source of law which consists in the declaration of legal
rules by a competent authority.
 To legislate is to make new law in any fashion.
 In this sense, any act done with the effect of adding to or altering the law is
an act of legislative authority.
As so used, legislation includes all the sources of law, and not merely one of them.
Thus when judges establish a new principle by means of a judicial decision, they
may be said to exercise legislative, and not merely judicial power. In the strict
sense, however, legislation is the laying down of legal rules by a sovereign or
subordinate legislator.
Here we must distinguish law-making by legislators from law-making by the
courts.
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 Legislators can lay down rules purely for the future and without reference to
any actual dispute;
 The courts, in so far as they create law, can do so only in application to the
cases before them and only in so far as is necessary for their solution.
 Judicial law-making is incidental to the solving of legal disputes;
 Legislative law-making is the central function of the legislator.
 Law that has its source in legislation may be most accurately termed enacted
law, all other forms being distinguished as unenacted.
Supreme and subordinate legislation
 According to salmond, legislation is either supreme or subordinate.
 Supreme legislation is that which proceeds from the sovereign power in the
state.
 It cannot be repealed, annulled or controlled by any other legislative
authority.
 On the other hand, subordinate legislation is that which proceeds from any
authority other than the sovereign power.
 It is dependent for its continued existence and validity on some superior
authority.
 The Parliament of India possesses the power of supreme legislation.
 However, there are other organs which have powers of subordinate
legislation.
Subordinate Legislation
1. Salmond refers to five kinds of subordinate legislation. As regards
subordinate legislation in the colonial field, the powers of self-government
entrusted to the colonies and other dependencies of the crown are subject to
the control of the imperial legislature which may repeal, alter or supersede
any colonial enactment.
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2. In certain cases, legislative power has also been given to the judiciary. The
superior courts are allowed to make rules for the regulation of their own
procedure. It is a true form of legislation although it cannot create new laws
by way of precedents.
3. Municipal authorities are also allowed to make bye-laws for limited
purposes within their areas. According to Allen by a series of enactments,
notably the Public Health Acts, 1875-1976, the Municipal Corporations Act,
1882 and the Local Government Acts, 1888-1933, local authorities-country,
borough, rural and urban district councils-have powers to enact bye-laws are
punishable on conviction by summary process by fines usually not
exceeding 5. The range of subjects dealt with is immense; to take the
commonest, we may note building, advertisements, care of the sick
(hospitals, vaccination, infectious diseases), cleanliness of dwelling-houses,
housing of the working classes, town-planning schemes, nuisances,
scavenging and cleansing, police, rating, education, traffic, highways,
burials, and the conduct generally of persons in public places.
4. Sometimes the state allows private persons like universities, railway
companies, etc., to make bye-laws which are recognized and enforced by
law courts. Such legislation is usually called autonomic. The railway
company may make bye-laws for the regulation of its undertaking. Likewise
a university may make statutes for the government of its members.
Delegated Legislation:
 Another kind of subordinate legislation is executive legislation or delegated
legislation.
 It is true that the main function of the executive is to enforce laws but in
certain cases, the power of making rules is delegated to the various
departments of the government.
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 This is technically called subordinate or delegated legislation.

 Delegated legislation is becoming more and more important in modern
times.
 Many factors have been responsible for the growth of delegated legislation.
 The concept of the State has changed and instead of talking of a police state,
we think in terms of a welfare state.
 This change in outlook has multiplied the functions of the government.
 This involves the passing of more laws to achieve the ideal of a welfare
state.
 Formerly, every bill used to be a small one but civilization has become so
complicated that every piece of legislation has to be detailed.
 The rise in the number and size of the bills to be passed by Parliament has
created a problem of time.
 It is realized that all this legislation cannot be enacted even if the members
of Parliament are prepared to work day and night.
 The result is that Parliament resorts to the device of passing skeleton bills.
 And leaving the work of filling in the details to the departments concerned.
 Modern legislation is becoming highly technical and it Is too much to expect
that the ordinary members of Parliament will appreciate all the implications
of modern legislation.
 Except a few experts in certain lines, the other members of Parliament are
bound to bungle if they attempt to do the impossible.
 Under the circumstances, it is considered safe to approve of general
principles of legislation and leave the details to the ministries concerned.
 It is impossible for any statesman or civil servant to foresee all contingencies
that might arise in the future and provide for them in the bill when it is being
passed by Parliament.
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 It is convenient if some power is given to the department concerned to add

to the details to meet any contingency in future.
Moreover, full knowledge of the local conditions may not be available to the
government at the time of the passing of the law and it is desirable to adjust the law
by means of orders-in-council to meet the requirements of the various localities.
Delegated legislation gives flexibility to law and there is ample scope for
adjustment in the light of experience gained during the working of any particular
legislation.
Delegated legislation is controlled in the following ways
a. Parliamentary control: Parliament has always general control. When a bill
is before it, it can modify, amend or refuse altogether the powers which the
bill purposes to confer on a minister or some other subordinate authority.
b. Parliamentary supervision: A second way of controlling delegated
legislation is that laws made under delegated legislation should be laid
before the legislature for approval and the legislature may amend or repeal
those laws if necessary.
c. Judicial control: While parliamentary control is direct, the control of courts
is indirect. Courts cannot annul subordinate enactments. The rule or order
frowned on by the courts, though not actually abrogated, becomes a dead
letter because in future no responsible authority will attempt to apply it. if it
is applied, nobody will submit to it. judicial control operates through the
doctrine of ultra vires. All delegated legislation is subject to the test whether
or not it falls within the periphery of the power thus conferred. If they do
not, they are of no effect. Courts also possess certain direct power over the
acts and procedures of public authorities. The most important of them are
called writs. The other methods are injunction and declarations.
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d. Trustworthy Body: An internal control of delegated legislation can be

ensured if the power is delegated only to a trustworthy person or body of
persons.
e. Publicity: Public opinion can be a good check on the arbitrary exercise of
delegated statutory powers. Public opinion can be enlightened by antecedent
publicity of the delegated laws.
f. Expert’s opinions: In matters of technical nature, opinions of experts
should be taken. That will minimize the danger of vague legislation and
blanket delegation.
Legislation and Precedents
It may be desirable to compare legislation with precedents and customary law. As
regards legislation and precedents, the former has its source in the law-making will
of the state. On the other hand, precedent has its source in the ratio decidendi and
obiter dicta of the judicial decision. Legislation is imposed on courts by the
legislature but precedents are created by the courts themselves. Legislation is the
formal and express declaration of new rules by the legislature, but precedents are
the creation of law by the recognition and application of new rules by courts in the
administration of justice. It is a judicial decision which provides a rule of law for
subsequent decisions. Legislation creates statute law and precedents create judge-
made law. Legislation comes before a case arises requiring its application.
Precedent comes after the cause has arisen. Legislation is expressed in a general
and comprehensive form but precedent is in a particular and limited form.
Legislation is abstract but precedent is definite. However, a precedent primarily
settles a particular dispute between definite parties. It is easy to interpret a statute
than to interpret a precedent. While legislation is ordinarily prospective, precedent
is retrospective only.
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Legislation and Custom

As regards legislation and customary law, legislation grows out of theory but
customary law grows out of practice. While the existence of legislation is
essentially de jure, the existence of customary law is essentially de facto.
Legislation is the latest development of law-making tendency, customary law is the
oldest form of law. Legislation is the mark of advanced society and a mature legal
system. Customary law is the mark of primitive society and an undeveloped legal
system. Legislation expresses a relationship between men and the State but
customary law expresses the relationship between man and man. Legislation is
complete, precise and easily accessible, but the same cannot be said about
customary law. Legislation is the result of a deliberate positive process but
customary law is the outcome of necessity, utility and imitation. According to
Keeton in early times, legislation either defined or supplemented custom, today the
relative positions of custom and legislation have been reversed. Statute law is the
principal source of modern law; custom only persists where legislation has as yet
not penetrated. Legislation, stripped of all divine associations is really a very
convenient method of making law. It is quickly made, definite, easy of access, and
easy to prove. However, since the development of representative institutions, it
may be regarded as the closest approximation to the general will that can be
secured. Custom, on the other hand, requires many years to form, is rarely
absolutely clear, and is in consequence more difficult to prove. To repeal a statute,
it is merely necessary to pass another one, avoiding it. to repeal a custom by
desuetude is a long and extremely uncertain business. It is always much more
convenient to repeal a custom by statute.
Advantages of Legislation over Precedent
Legislation as a source of law has many advantages over precedent.
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1. Legislation is both constitutive and abrogative, but precedent is merely

constitutive. Legislation is not only a source of new law but also the most
effective instrument of abolishing the existing law. Abrogative power is
necessary for legal reform and this virtue is not possessed by precedent
which can produce new law but cannot reverse that which is already law.
Legislation is a necessary instrument not only for the growth of law but also
for its reform.
2. Legislation is based on the principle of division of labour and consequently
enjoys the advantage of efficiency. The legislative and judicial functions are
separated and consequently both of them are done better by different organs.
Legislature attends to the work of legislation and judiciary attends to the
work of interpreting and applying the law. In the case of precedent, the
functions of legislation and interpretation are combined and that is hardly
desirable.
3. Legislation satisfies the requirement of natural justice that laws shall be
known before they are enforced. Law is declared in the form of legislation
and the same is later on enforced by the courts. Law is formally declared to
the people and if after that they dare to violate the same, they are punished.
However, that is not the case with precedent. It is created and declared in the
very act of applying and enforcing it. It is applied as soon as it is made. It
operates retrospectively and applies to facts which are prior in date to law
itself. However, it is pointed out that modern statutes are so numerous and so
complicated that it is doubtful whether their promulgation secures wider
knowledge of the new principles than any important decision. In any case,
until they have been construed by actual decisions, their effect is doubtful.
Moreover, there is nothing in the nature of legislation to prevent it from
having a retroactive effect so as to alter the legal consequences of acts
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already done. Any considerable alteration of principles must have some

retroactive effect as long-term arrangements will have been entered into on
the assumption that law will remain unchanged.
4. Legislation makes rules for cases that have not yet risen but precedent must
wait until the actual concrete incident comes before the courts for decision.
Precedent is dependent on the accidental course of legislation but legislation
is independent of it. a precedent must wait till such time as a case is brought
for decision before a court of law. Legislation can move at once to fill up the
vacancy or settle a doubt in the legal system.
5. Legislation is superior in form to precedent. It is brief, clear, easily
accessible and knowable. Case-law is buried from sight and knowledge in
the huge and daily growing mass of the record of litigation. Case law is gold
in the mine, a few grains in the precious metal to the tons of useless metal,
while statute law is coin of the realm ready for immediate use. However it is
pointed out that it is not true in the case of English statute law. Sometimes,
the statutes are so drafted as to simplify the law, but usually important
statutes require elaborate editing with copious references to cases as soon as
they are enacted. Reference may be made in this connection to the Local
Government Act, 1833. It is true that continental cods have facilitated the
scientific arrangement of legal topics, but even they have proved unworkable
without much comment and the guidance of successive decisions. The
constantly increasing bulk of reported cases on the existing law is proving to
be a burden everywhere.
According to Prof. Friedman it will be difficult to deny that in modern
circumstances development of law through precedent is slow, costly, cumbrous
and often reactionary. It is therefore less suitable for a time of fast changes and
restlessness such as ours. It is also dependent upon a continuity and steadiness of
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social conditions which may not last. Perhaps none but British Judges could have
worked it in such a way of preserving the system is to take a bold attitude towards
antiquated precedents, and to form the law in terms of broad principles. But others
take the view that law reform should be left to the legislator. As a result the judicial
approach to law reform, under a precedent system, is increasingly uncertain, and
more influenced by changes in the judicial approach to law reform, under a
precedent system, is increasingly uncertain, and more influenced by changes in the
judicial personnel than a code law system. Consequently the sphere left to judicial
law-making diminishes steadily, even if it tries to engraft itself upon statutory
interpretation.
Advantages of Precedent over Legislation
1. Precedent also has certain advantages over legislation. According to dicey
the morality of the courts is higher than the morality of the politicians.
Politicians are always swayed by popular passions and are liable to make
bad laws. On the other hand, judges decide cases in a calm atmosphere and
can afford to hold the scales even between the contending parties. They
perform their functions impartially and fearlessly.
2. According to salmond, case law enjoys greater flexibility than statute law.
Statute law suffers from the defect of rigidity. Courts are bound by the letter
of law and are not allowed to ignore the same. In the case of precedent,
analogical extension is allowed. It is true that legislation as an instrument of
reform is necessary but it cannot be denied that precedent has its own
importance as a constitutive element in the making of law although it cannot
abrogate law. In the case of England, the courts of common law by means of
precedents.
3. According to Amos, law does not become more uncertain when it is based
on precedents than when it is founded on enacted law. Although French law
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is codified, it is still far from being uncertain. The uncertainty of English law
is nothing when compared to that of France. A French advocate has to wade
through a set of French codes, interpretations and commentaries as an
English lawyer has to do. The enactment of a law is no cure for uncertainty
in a legal system. Neither legislation nor precedent alone can completely
meet all eventualities. The gaps have to be filed by legislation and
precedents.
4. According to Gray, case law is not only superior to statute law but all law is
judge-made law. To quote him in truth, all the law is judge made law. The
shape in which a statute is imposed on the community as a guide for conduct
is that statute as interpreted by the courts. The courts put life into the dead
words of the statute.
5. It is submitted that in the present age, both legislation and precedent are
equally important and one cannot attain its end without the other. The aim of
the law is the protection and progress of society and individual. For a
planned progress, legislation is necessary. To interpret it and to apply and to
adapt it to a particular case, case law is equally necessary. Both legislation
and precedents contribute equally to the development of law.
PRECEDENT
Precedent as Source of Law
 Judicial precedents are an important source of law.
 They have enjoyed high authority at all times and in all Countries.
 The one reason why precedent occupies so high a place in the English
system is that English judges have occupied a very high position in the
country.
 They have been experts in their line and consequently their decisions have
enjoyed high reputation.
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Nature of Precedent
 A precedent is purely constitutive and in no degree abrogative.
 This means that a judicial decision can make a law but cannot alter it.
 Where there is a settled rule of law, it is the duty of the judges to
follow the same.
 They cannot substitute their opinions for the established rule of law.
Authority of Precedent
 The reason why a precedent is recognised is that a judicial decision is
presumed to be correct.
 That which is delivered in judgment must be taken for established
truth and in all probability, it should be held to be true.
 The practice of following precedents creates confidence in the minds
of the litigants.
 Law becomes certain and known and that in itself is a great
advantage.
 Decisions are given by judges who are experts in the study of law.
 When the law is settled, it gets into the text-books which are a very
considerable guide to practitioners.”
 According to Dr. Julius Stone: “Precedent had played and will
continue to play a most important part in common law judicial
achievement.
Circumstances which destroy or weaken the binding force of precedent
 The operation of precedent is based on the legal presumption that
judicial decisions are correct.
 A matter once decided is decided once for all.
 What has been delivered in a judgment must be taken to be an
established truth.
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 In all probability, it is true in fact. Even if it is not, it is expedient that

it should be held as true.
However, there are circumstances which destroy or weaken the binding
force of a precedent.
Those are exceptions to the rule of the binding force of precedent.
(i) Abrogated Decision - A decision ceases to be binding if a statute or
statutory rule inconsistent with it is subsequently enacted, or if it is reversed or
overruled by a higher Court. Reversal occurs when the same decision is taken on
appeal and is reversed by the appellate court. Overruling occurs when the higher
court declares in another case that the precedent case was wrongly decided and so
is not to be followed. As overruling is the act of a superior authority, a case is not
overruled merely because there exists some later opposing precedent of the same
court or a court of coordinate jurisdiction. In such cases, a court is free to follow
either precedent. When a case is overruled in the full Sense of the word, the courts
become bound by the overruling case. Overruling need not be express, but may be
implied.
(ii) Affirmation or Reversal on a Different Ground.–It sometimes
happens that a decision is affirmed or reversed on appeal on a different point.
Suppose a case is decided in the Court of Appeal on ground A and then goes
on appeal to the House of Lords which decides it on ground B, nothing being said
upon A.The higher court may shift the ground of its decision because it thinks that
this is the easiest way to decide -the case. It is possible to find cases where
judgments affirmed on a different point have been regarded as authoritative for
what they decided. It is the same with cases reversed on another point.
(iii) Ignorance of Statute.–A precedent is not binding if it was rendered in
ignorance of a statute or a rule having the force of a statute, i.e., delegated
legislation. Similarly, a court may know of the existence of the statute or rule and
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yet not appreciate its relevance to the matter in hand. Such a mistake also vitiates
the decision. Even a lower court can refuse to follow a precedent
(iv) Inconsistency with Earlier Decisions of Higher Court.-A precedent
loses its binding force if the court that decided it overlooked an inconsistent
decision of a higher court. Thus, if the High Court of Delhi decides a case in
ignorance of a decision of the Supreme Court of India, the decision of the High
Court of Delhi is not a precedent and hence is not binding on any lower court. Such
a decision is said to be per incuriam.
(v) Inconsistency between Earlier Decisions of the Same Rank.–A court
is not bound by its own previous decisions that are in conflict with one another.
The court of appeal and other courts are free to choose between conflicting
decisions, even though this might amount to preferring an earlier decision to a later
decision, preferring an unreported decision to a reported decision and preferring a
decision of a court of coordinate jurisdiction to its own decision.
Where authorities of equal standing are irreconcilably in conflict, a lower
court has the same freedom to pick and choose between them. The lower court may
refuse to follow the later decision on the ground that it was arrived at per incuriam,
or it may follow such decision on the ground that it is the latest decision. Which of
these two courses the Court adopts depends upon its own view what the law ought
to be.
(vi) Precedents sub silentio or not Fully Argued.–When a particular point
involved in a decision is not taken notice of and is not argued by a counsel, the
court may decide in favour of one party, whereas if all the points had been put
forth, the decision may have been in favour of the other party. Hence such a rule is
not an authority on the point which had not been argued and this point is said to
pass sub silentio. This rule can be traced in English law to 1661 when in a famous
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English case, the counsel said, “a hundred precedents sub silentio are not material,”
and the judge agreed.
(vii) Decisions of Equally Divided Courts.–Where an appellate court is
equally divided, the practice is to dismiss the appeal. The rule adopted in the
House of Lords is that the decision appealed from becomes the decision of the
House of Lords. This problem is not a serious one today as it is the usual practice
of most appellate courts to sit with an uneven number of judges like three or five.
(viii) Erroneous Decisions.–Decisions may also eror by being founded on
wrong principles or by conflicting with fundamental principles of common law.
Logic suggests that court should be free to disregard those decisions, but practical
considerations may require that perfection may be sacrificed to certainty. Where
the decision has stood for some length of time and has been regarded as established
in the law, the people must have acted while relying on it and dealt with the
property and made contracts on the strength of it and in general made it a basis of
expectations and a ground of mutual dealings. In such circumstances, it is better
that the decision, though founded in error, should stand. However, courts may
overrule erroneous decisions of long standing which involve injustice to the citizen
or which concern an area of law such as taxation where it is important for the
citizen that the courts should establish what the correct law is.
Circumstances which increase the authority of a precedent
There are circumstances which tend to increase the authority of a precedent.
The number of judges constituting the Bench and their eminence is a very
important factor in increasing the authority of a precedent. To some extent, the
eminence of the lawyers who argued the case enhances the authority of a
precedent. A unanimous decision carries more weight. Affirmation, approval or
following by other courts, especially by a higher tribunal, adds to the strength of a
precedent. If an Act is passed embodying the law in a precedent, the precedent
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gains an added authority. To a limited extent, the lapse of time adds to the
authority of a decision. Likewise, if a precedent is not followed for a long time, its
authority starts deteriorating.
Stare Decisis
The doctrine of stare decisis has been recognised by the Constitution of
India. Article 141 provides that the law declared by the Supreme Court of India
shall be binding on all courts in India. Although the expression “all courts” is wide
enough to cover the Supreme Court of India itself, it has been held in Bengal
Immunity Co. Ltd. v. State of Bihar that the expression does not include the
Supreme Court of India. The result is that like the House of Lords, the Supreme
Court is free to depart from its previous decisions if valid reasons exist for doing
so.
In Mahadeolal v. Administrator-General of West Bengal, the Supreme Court
held that judges of coordinate jurisdiction should not set aside one another’s
judgments, for judicial decorum no less than judicial propriety, forms the basis of
judicial procedure and certainty in law is not only desirable but also essential.
When a single judge of a High Court is of the opinion that the previous decision of
another single judge of the same High Court on a point of law is erroneous, he
should refer the matter to a larger bench and should not himself hold that the
previous decision is wrong. This rule applies not only to judges sitting singly but
also to divisional benches. One division bench should not set aside the decision of
another division bench of the same High Court.
In Sheshamma v. Venkata Rao, the Madras High Court held that a division
bench is the final court of appeal in a High Court in India. If a division bench does
not accept as correct the decision, on a question of law, of another division bench
of that court, the only proper course is to refer the matter to a full bench. (1940
Mad U 400).
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A similar view was taken by the Andhra Pradesh High Court in Yedlapat
Venkateshwarlu v. state of Andhra Pradesh. It was held that if one division bench
of a High court has expressed a view and another division bench is not inclined to
agree with it, the latter cannot, by itself, express a contrary view, but must refer the
matter to a full bench.
Under the stare decisis rule, a principle of the law which has become settled
by a series of decisions is generally binding on the courts and should be followed
in similar cases. This rule is based on expediency and public policy. Although this
rule is generally followed by the courts, it is not applicable in all cases. The reason
is that previous decisions should not be allowed to perpetuate a wrong if the court
is convinced that the previous decision is wrong. The rule of stare decisis is not so
imperative or inflexible that it cannot be departed from but its application must be
determined in each case by the discretion of the court and previous decisions
should not be followed to the extent that error may be perpetuated and grievous
wrong may result.
A similar view was taken by the Supreme Court of India in Bachan Singh v.
state of Punjab. It was urged before the Supreme Court that the question of
constitutional validity of death sentence stood concluded against the petitioners by
the decision of a Constitution Bench of 5 Judges of the Supreme Court in
Jagmohan Singh v. State of UP and could not therefore be allowed to be reagitated
before a bench consisting of the same number of judges. The plea was rejected by
the Supreme Court. It was pointed out that the rule of state decisis, though a
necessary tool in what Maitland called the legal smithy is only a useful servant and
cannot be allowed to turn into a tyrannous master. Reliance was placed on the
following observation of brandies, J. in state of Washington v. Dawson and co…
“Stare decisis is ordinarily a wise rule of action. But it is not a universal and
inexorable command.” If the rule of stare decisis was followed blindly and
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mechanically, it would dwarf and stultify the growth of law and affect its capacity
to adjust itself to the changing needs of society.
The Supreme Court emphasised the necessity of ridding stare decisis of
something of its petrifying rigidity and warned with Cardozo, J. that “in many
instances the principles and rules and concepts of our own creation are merely
apercus and glimpses of reality” and “the need of reformulating them or at times
abandoning them altogether when they stand condemned as mischievous in the
social Consciousness of the hour, the social consciousness which it is our business
as judges to interpret as best as we can.”
The Supreme Court pointed out that in the present case there were
supervening circumstances which justified a reconsideration of the decision in the
case of Jagmohan Singh. One circumstance was the introduction of the new Code
of Criminal Procedure in 1973 by which Section 354(3) made life sentence the rule
in case of offences punishable with death or in the alternative imprisonment for life
and provided for imposition of sentence of death only in exceptional cases for
special reasons. Another supervening circumstance was the decision of the
Supreme Court in Maneka Gandhi v. Union of India which gave a new
interpretation to Articles 21 and 14 of the Constitution of India. The new
dimension of Articles 21 and 14 rendered death penalty provided in Section 302 of
the Indian Penal Code read with Section 354(3) of the Code of Criminal Procedure,
1973, vulnerable to an attack on a ground which was not available at the time when
the case of Jagrnohan Singh was Singh decided in 1973. (Moreover, since the case
of Jagmohan Siagh was decided, India had ratified two international instruments of
human rights and particularly the International Covenant on Civil and Political
Rights. Under those circumstances, the Supreme Court did not follow the principle
of stare decisis.
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Ratio Decidendi
According to Salmond: “A precedent is a judicial decision which contains in
itself a principle. The underlying principle which thus forms its authoritative
element is often termed the ratio decidendi. The concrete decision is binding
between the parties to it but it is the abstract ratio decidendi which alone has the
force of law as regards the world at large.”
Rupert Cross says that a ratio decidendi is a rule of law expressly or
impliedly treated by the judge as a necessary step in reaching his conclusion.
Professor Goodhart points out that the ratio decidendi is not the reason for
the decision because the reason may be bad and yet the case may come to be an
authority. The ratio decidendi is also not necessarily the proposition of law stated
in the judgment. There may be no rule of law expressly set out or there may be
several rules of law set out by different judges as in appellate decisions. The rule
may be broader than is necessary to cover the facts of the case before the court.
The view of Goodhart is that ratio decidendi is nothing more than the decision
based on the material facts of the case. There are certain rules by which the
material facts can be discovered. Certain facts may be presumed to be immaterial
unless expressly stated to be material. Such would be the facts regarding time,
place, name, amount, etc. If the judgment does not give the facts, the facts stated in
the report must he assumed to be material. If the judgment does state the facts, we
must not look beyond that. The difficulty is as to how much of these facts the judge
has treated as material. The view of Goodhart is that facts such as time, place, etc.,
are presumed to be immaterial unless expressly stated to be material. If the
judgment does not distinguish between the material and immaterial facts, all facts
mentioned in it must be considered to be material except facts regarding time,
place, etc. All facts which the judge has expressly or impliedly treated as
immaterial must be ignored. The ratio decidendi is the decision as applied to the
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material facts as ascertained according to the rules suggested by him. If in a later

case, the material facts Coincide with or are contained within the material facts of
the earlier case, then the earlier case is a precedent in the point.
Critics point out that the view of Goodhart that a ratio dccidendi of a case
consists of the decision based on the material facts is superficially true. Its
inadequacy becomes evident when it is applied in detail. It rests entirely on the
meaning of the phrase “material facts.” The theory of Goodhart implies that it is
the deciding judge who decides what are the material facts and those can be
discovered by a perusal of the judgment. The theory overlooks two points. The first
point is that it is within the function of the judges in the subsequent cases to say
what they choose to regard as the material facts of the earlier case. The second
point is that two persons may agree to a collection of individual facts and yet form
different impression of the group of them as a unit. A case in law is a collection of
facts. Whether two cases resemble each other sufficiently so that one can be
regarded as a precedent for the other rests entirely on the impression which a
particular judge forms of the facts of each case as a whole. According to M. R.
Cohen: “You cannot pass from past decisions to future ones without making
assumptions. From the statement that court has ruled so and so in certain cases
nothing follows except in so far as the new cases are assumed to be like the old
cases. But this likeness depends on our logical analysis of classes of cases.” The
result is that the ratio decidendi of a case depends a good deal on what later
tribunals have declared to be the ratio decidedi.
Obiter Dictum
All that is said by the court by the way or the statements of law which go
beyond the requirements of the particular case and which lay down a rule that is
irrelevant or unnecessary for the purpose in hand, are called obiter dicta. These
dicta have the force of persuasive precedents only. The judges are not bound to
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follow them. They can take advantage of them but they are not bound to follow
them. Obiter dicta help in the growth of law. These sometimes help the cause of
the reform of law. The judges are expected to know the law and their observations
are bound to carry weight with the government. The defects in the legal system can
be pointed out in the obiter dicta. The judges are not bound to make their
observations on a particular point unless that is strictly relevant to the point in issue
but if they feel that they must speak out their own minds on a particular point, the
public should be grateful to them for their labour of love.
According to Professor Patterson, an obiter dictum is a “statement of law in
the opinion which could not logically he a major premise of the selected facts of
the decision”. In Lickbarrow v. Mason, Ashhurst, J. observed that “wherever one
of the two innocent persons must suffer by the acts of a third, he who has enabled
such third person to occasion the loss must sustain it”. This could logically have
formed the major premise of the decision if it is ever permissible to treat such a
statement as a major premise and the decision that the defendant should have
judgment is the conclusion of any syllogism. The observation of Ashhurst, J. was
nonetheless a dictum and has been so treated ever since it was made. The ratio
decidendi was that the right of stoppage in transitu is unavailable against an
indorsee for value of a bill of lading.
Dr. Goodhart defines obiter dictum as “a conclusion based on a fact the
existence of which has not been determined by the court”.
It is a truism upon which there is no need to enlarge that dicta are of varying
degrees of persuasiveness. At the end of the scale we have the considered opinion
of all the members of the House of Lords who sat to hear a case. At the other end
of the scale we have broad observations made on the spur of the moment such as
the remark which prompted Lord Abinger to say: “It was not only an obiter dictum,
but a very wide divaricating dictum.” Dicta of the highest degree of persuasiveness
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may often, for all practical purposes, be indistinguishable from pronouncements

which must be treated as ratio decidendi and there are certain situations where this
is the case which are of sufficient importance to be separately mentioned.
According to Lord Sterndale; “Dicta are of different kinds and of varying
degrees of weight. Sometimes they may be called almost casual expressions of
opinion upon a point which has not been raised in the case, and is not really present
to the judge’s mind. Such dicta, though entitled to the respect due to the speaker,
may fairly be disregarded by judges before whom the point has been raised and
argued in a way to bring it under much fuller consideration, Some dicta, however,
are of a different kind; they are, although not necessary for the decision of the case,
deliberate expressions of opinion given after consideration upon a point clearly
brought and argued before the court. It is open, no doubt, to other judges to give
decisions contrary to such dicta, but much greater weight attaches to them than to
the former class.”
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CUSTOM
Definition
Custom is also an important source of law and it is desirable to define the
same. According to Salmond, custom is the embodiment of those principles which
have commended themselves to the national conscience as principles of justice and
public utility.
According to Keeton, customary law may be defined as those rules of human
action, established by usage and regarded as legally binding by those to whom the
rules are applicable, which are adopted by the courts and applied as sources of law
because they are generally followed by the political society as a whole or by some
part of it.
According to Carter: “The simplest definition of custom is that it is the
uniformity of conduct of all persons under like circumstances.” According to
Holland, custom is a generally observed course of conduct. According to Austin,
custom is a rule of conduct which the governed observe spontaneously and not in
pursuance of law settled by a political superior.
According to Allen, custom as a legal and social phenomenon grows up by
forces inherent in society, forces partly of reason and necessity and partly of
suggestion and limitation.
Origin of Custom
 Custom is the oldest form of law-making.
 A study of ancient law shows that in primitive society, the lives of the
people were regulated by customs which developed spontaneously
according to circumstances.
 It was felt that a particular way of doing things was more convenient
than others.
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 When the same thing was done again and again in a particular way, it
assumed the form of custom.
 Holland rightly points out that custom originated in the conscious
choice by the people of the more convenient of the two acts.
 Imitation also must have played an important part in the growth of
customs.
 a moral well-being;.
 Nature perpetuates itself by repetition and the three fundamental
forms of repetition are rhythm or undulation, generation and imitation.
 They grew up by gradual process in the households and daily relations
of the clans, and the magistrate only came in at a later stage, when the
custom was already in operation, and added to the sanction of general
recognition the express formulation of judicial and expert authority.”
 A study of ancient society shows that law-making was not the
business of the kings.
 Law of the country was to be found in the customs of the people.
 The people were accustomed to a particular way of living and doing
things and that was to be found in the customs of society.
 The King was anxious to rule the people according to the popular
notions of right and wrong and those were to be found in their
customs.
 Later on, the same custom was recognised by the sovereign by putting
his imprimatur on it.
 It was in this way that Custom was transformed into law.
 Custom was vague in the beginning but it became definite