History of Precedent

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law “common” to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today’s civil and criminal court systems.

Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king’s judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge’s interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other’s decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name “common law.”

Henry II’s creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry’s behalf. Whether Henry actually intended to bring about the assassination of Becket is debatable, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law — “legislating from the bench” is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the “judicial power” specified by Article III of the U.S. constitution. Justice Oliver Wendell Holmes, Jr. observed in 1917 that “judges do and must legislate.” There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. (Via Wikipedia)

This is a stub from wiki. It is so improper. It will be improved some time. I hope.

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Seven Sins by Honourable

New Delhi, Nov. 10: Former Supreme Court judge Ruma Pal today tore into the process of appointment of judges to the Supreme Court and the high courts and the lack of an embedded mechanism to ensure judicial accountability.

Pal, a widely respected jurist not known to mince words, chose to put a caveat to her words: she was speaking from the “safe haven of retirement”.

“The process of appointment of judges to the superior courts was possibly the best kept secret of the country,” she said. Judges’ appointments are now initiated and cleared by a collegium of the four senior-most judges and the Chief Justice of India for the Supreme Court and three senior judges and the chief justice for a high court. Since 1993, the executive’s role has been to dutifully appoint those cleared by the collegium. The executive can return the names but has to appoint the judges if the collegium clears the list again.

Seven Sins accounted by Gandhi Ji.

An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added.

Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.

Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again.

via http://telegraphindia.com/1111111/jsp/frontpage/story_14735972.jsp#

Extract of her speech is as under:

Judges are fierce in using the word [“independence”] as a sword to take action in contempt against critics. But the word is also used as a shield to cover a multitude of sins, some venial and others not so venial. Any lawyer practising before a court will, I am sure, have a rather long list of these. I have chosen seven.

The first is the sin of “brushing under the carpet”, or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned, and suppressed any public discussion on the issue, often through the great silencer — the law of contempt.

The second sin is that of “hypocrisy”. A favourite rather pompous phrase in judgments is “Be you ever so high, the law is above you”, or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations, and another regulation to which the “ordinary” citizen is subject. Some in fact get offended if their car is held up by the police at all while controlling the flow of traffic — the feeling of offence sometimes being translated into action, by issuance of a rule of contempt against the hapless police constable, all in the name of judicial independence.

The third sin is that of secrecy. The normal response of courts to any enquiry as to their functioning is to temporise, stonewall and prevaricate. As I have said elsewhere, the process by which a judge is appointed to the high court or elevated to the Supreme Court is one of the best-kept secrets in the country…

If “independence” is taken to mean “capable of thinking for oneself”, then the fourth sin is plagiarism and prolixity. I club the two together because the root cause is often the same, namely the prolific and often unnecessary use of passages from textbooks and decisions of other judges — without acknowledgement in the first case, and with acknowledgement in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue, with very little original reasoning in support of the conclusion.

Often judges misconstrue judicial independence as judicial and administrative indiscipline. Both of these in fact stem from judicial arrogance as to one’s intellectual ability and status…. Intellectual arrogance, or what some may call intellectual dishonesty, is manifest when judges decide without being bound by principles of stare decisis or precedent…

Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill will. Most importantly judges must be perceived as so deciding, or to use Lord Hewart’s classic dicta that “justice should not only be done, but should manifestly and undoubtedly be seen to be done,” because the belief of corruption is as damaging to the credibility in the independence of the judiciary as the act of corruption.

This brings me to the seventh and final sin of nepotism or what the oath of office calls “favour” and “affection”. What is required of a judge is a degree of aloofness and reclusiveness not only vis-à-vis litigants but also vis-à-vis lawyers. Litigants include the executive. Injudicious conduct includes known examples such as judges using a guesthouse of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a chief minister. I can only emphasise again that nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as “face value”.

…I will conclude with most important facet of judicial independence. Judicial independence cannot exist without accountability. At present the only disciplinary power over judges is vested in Parliament which provides for the extreme punishment of removal for acts of proven misbehaviour by or incapacity of a judge…

Deprivation of jurisdiction or the non-allocation of work to a dishonest judge was resorted to by Chief Justice Sabyasachi Mukherjee when the impeachment of Justice V. Ramaswamy failed for political reasons. Sometimes Chief Justices control a recalcitrant judge by ensuring that the judge concerned sits with the Chief Justice or with a “strong” judge until he or she retires. The situation becomes more difficult if the allegations are against the Chief Justice. Solutions evolved have proved inadequate and ad hoc. There is a need for an effective mechanism for enforcing judicial accountability…

via http://www.indianexpress.com/news/the-seven-deadly-sins-of-judges/874657/0


Precedent

As per the doctrine of Precedent a.ka. stare decisis the previous decision of the court or of superior court is binding and the law pronounced by it can not be unsettled. This was and this is the English Law of Precedent. However it creates a problem. The Privy Council is the Supreme Court of England and there is no Court higher to it. Therefore if a decision say delivered about hundred years back is found to be out of context it remains binding and can not be unsettled. To rectify this problem, in the year 1966 the Privy Council changed its practice by announcing the following Practice Statement to the House:

‘Before judgments are delivered today, I wish to make the following statement on behalf of myself and the Lords of Appeal in Ordinary:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
“Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
“This announcement is not intended to affect the use of precedent elsewhere than in this House.”‘

–Statement made by LORD CHANCELLOR (LORD GARDINER) on 26 July1966.

(For the record the Privy Council has now been substituted by Supreme Court of England by Constitutional Reforms Act of 2005)