According to Salmond, there are two conditions requisite for disregarding a conditionally authoritative precedent, which must co-exist. They are as follows: In the first place, the decision must, in the opinion of the court, in which it is cited, be a wrong decision and it is wrong in two cases, viz., (i) when it is contrary to law, and (ii) when it is contrary to reason.
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A decision is contrary to law if it contravenes any established rule of law. In the absence of any established rule of law the decision must conform to the principles of reason, morality and social utility.
ADVERTISEMENTS:
Where the reason for any particular decision ceases or if the ground of decision disappears, the judiciary decision if left without any ratio decided.
The maxim of law applicable is cessation ratione legis, cessal inhale, i.e., the reason of the law ceasing the law itself ceases. But this maxim is applicable only to judiciary law and does not apply to statute law, which remains solemn and undisturbed till repealed by the legislature.
The first condition is not enough for the disregard of an authoritative precedent. The reversal of the precedent must, at the same time, be expedient in the interests of justice. Salmond observes that where a decision is authoritative, it is not enough that the court to which it is cited should be of opinion that it is wrong.
A principle once established is not reversed simply because it is not as perfect and rational as it ought to be. “It is better”, said Lord Eldon, “law should be certain, than that every judge should speculate upon improvements in it.”
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The circumstances of the case must not be such as to make applicable the maxim communist error facet jus (common mistake sometimes makes law). In other words, the principle of stare devises must not be offended.
The rule lies down that even though a precedent might be defective or lay down a bad law, or a satisfactory reason is wanting, it is to be followed in spite of some inconvenience.
Disregard of Precedent:
The disregard of a precedent assumes two forms. The court to which it is cited may cither overrule it, or merely refuse to follow it. A precedent is overruled by a court of superior jurisdiction, while it is not followed by a court of co- ordinate jurisdiction.
In the former case, the precedent becomes null and void like a repealed statute, and a new rule is authoritatively established; in the latter case the earlier precedent docs not altogether disappear, but exists side by side with the latter authority conflicting with each other.
ADVERTISEMENTS:
The effect of overruling a previous decision is that all intermediate transactions made on the strength of the overruled decision are governed by the law established in the overruling decision. The overruling has retrospective effect unless the matter is res judicator. A repealed statute, on the other hand, has no retrospective effect unless specially provided.
Effect of Time on Precedent:
Salmond observes that other things being equal, precedent acquires added authority from the lapse of lime. A decision, which might be lawfully overruled without hesitation while yet new, may, after the lapse of a number of years, acquire such increased strength as to be practically of absolute and no longer of merely conditional authority.
After an authority has stood for long unchallenged, it should not, in the interest of public convenience and having regard to the protection of public rights, be overruled. It gains added strength because people consider it as establishing the law and act upon it.
But lapse of lime need not always add authority to a precedent. If a precedent has not been acted for a considerable time, it may be taken to have been ignored. As Salmond very pertinently remarks,
“A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced.”