Common law is based on unwritten law.

1. Introduction
Common law, also known as case
law, is a body of unwritten laws based
on legal precedents established by the
courts.
Common law draws from
institutionalized opinions and
interpretations from judicial
authorities and public juries.
Common laws sometimes prove the
inspiration for new legislation to be
enacted .
What Is Common Law?
Common law is a body of unwritten laws
based on legal precedents established by
the courts. Common law influences the

2. decision-making process in unusual cases
where the outcome cannot be determined
based on existing statutes or written
rules of law. The U.S. common-law
system evolved from a British tradition
that spread to North America during the
17th- and 18th-century colonial period.
Common law is also practiced in
Australia, Canada, Hong Kong, India,
New Zealand, and the United Kingdom.
Understanding Common Law
A precedent, known as stare decisis, is a
history of judicial decisions which form
the basis of evaluation for future cases.
Common law, also known as case law,
relies on detailed records of similar
situations and statutes because there is no

3. official legal code that can apply to
a case at hand.
The judge presiding over a case
determines which precedents apply to
that particular case. The example set by
higher courts is binding on cases tried in
lower courts. This system promotes
stability and consistency in the U.S. legal
justice system. However, lower courts
can choose to modify or deviate from
precedents if they are outdated or if the
current case is substantially different
from the precedent case. Lower courts
can also choose to overturn the
precedent, but this rarely occurs.
Stare Decisis definition
Stare decisis is a legal doctrine that
obligates courts to follow historical cases

4. when making a ruling on a similar case.
Stare decisis ensures that cases with
similar scenarios and facts are
approached in the same way. Simply put,
it binds courts to follow legal precedents
set by previous decisions.
Stare decisis is a Latin term meaning "to
stand by that which is decided."
The U.S. common law structure has a
unified system of deciding legal matters
with the principle of stare decisis at its
core, making the concept of legal
precedent extremely important. A prior
ruling or judgment on any case is known
as a precedent. Stare decisis dictates that
courts look to precedents when
overseeing an on-going case with similar
circumstances.

5. Stare decisis is a legal doctrine that
obligates courts to follow historical cases
when making a ruling on a similar case.
Stare decisis requires that cases follow
the precedents of other similar cases in
similar jurisdictions.
The U.S. Supreme Court is the nation’s
highest court; therefore, all states rely on
Supreme Court.
• Stare decisis is a legal doctrine
obligates courts to follow historical
cases when making a ruling on a
similar case.
• Stare decisis requires that cases
follow the precedents of other similar
cases in similar jurisdictions.

6. • The U.S. Supreme Court is the
nation’s highest court; therefore, all
states rely on Supreme Court.
• The doctrine of precedent works
effectively for the most part
because it provides stability and
consistency in the legal system.
Parties involved in trials and
hearings can understand that
decisions made are based on
precedent, rather than personal
views or arbitrary judgement.
Precedents tend to be developed by
senior judges in higher courts,
which lends them authority and
experience.

8. Advantages and disadvantage of
common law system:
Common law describes laws
made by judges rather than a
parliament. As judges consider
both criminal and civil matters,
they make decisions, deliver
rulings and develop precedents.
Taken together, these things
constitute common law. A good
deal of our civil law, such as
torts and negligence, began life
as common law. Like most
aspects of law, common law
has advantages and
disadvantages. Common law
takes some law-making
pressure off parliament and

9. allows for laws to respond to
real-life situations. But
common law is also slow,
reactive rather than proactive
and made by individuals who
are not elected or representative
of the people. This page
summarize some of the some
advantages of common law.
Advantages of common law :
Specificity :
Common law expands on,
clarifies and implements legislation. The
wording of acts of parliament is often
broad and generic, providing general
instruction on the law but not how it
should work in certain situations. The
role of judges and common law is to

10. examine specific facts for each case,
interpret relevant legislation and
administer the law in line with these
findings. As one jurist put it, “common
law puts meat on legislative bones”.
Unforeseen cases. Similar to the point
above about specifics, common law can
also respond to cases, situations and facts
that were not foreseen or anticipated by
legislators. It is impossible for parliament
to legislate for every possible problem,
action or condition that might arise in
society. Common law can examine and
develop responses to real-life situations.
Consistency. The doctrine of precedent
works effectively for the most part
because it provides stability and
consistency in the legal system. Parties

11. involved in trials and hearings can
understand that decisions made are based
on precedent, rather than personal views
or arbitrary judgement. Precedents tend
to be developed by senior judges in
higher courts, which lends them authority
and experience.
Flexibility. Common law provides us
with consistency but it also allows for
flexibility and change in law-making.
Precedents can be challenged, set aside
and replaced by new precedents. The
courts provide ample opportunity for
common law reform.
Speed and efficiency. Common law is
faster, more flexible and responsive than
parliamentary law. Common law often
reacts and responds more quickly to
changing social values, community

12. expectation and so on. Institutional law
reform bodies or the parliament years to
decide on the need for change; judges
and courts can do it while reviewing one
case. The courts can also achieve law
reform faster because they are not bound
by the political and procedural
constraints of the legislative process.
Political independence. Unlike their
law-making counterparts in the
parliaments, judges and courts are not
dominated or controlled by party politics
or ideology. Because of this, the courts
can implement law reforms that might be
controversial or unpopular – reforms that
might affect or even sabotage the
government’s chances for election if they
were initiated in the parliament.

13. Abortion, for example, has been
permitted under common law in three
States – but the parliaments in those
States have refused to legislate on the
matters.
Disadvantage of common law :
Reactive, not proactive :Unlike
the parliament, the courts can only
change common law ex post
facto (‘after the fact’). They cannot
change the law of their own
accord. Courts can only deal with
cases which are brought before
them. Laws and precedents may be
obviously outdated and in need of
reform – but until relevant criminal
charges are laid or relevant civil

14. action is initiated, there is not an
opportunity for these laws and
precedents to be changed.
Secondary function: creating
legislation is the main function of
parliament, however, forming
common law is not the main function
of the courts. The courts exist
primarily to administer justice and
developing common law is a
secondary outcome.
Undemocratic law:
Parliamentarians are elected by and
responsible to the people – but judges
are appointed by the court system.
This fact leads to criticism of judges
as being unaccountable to the people.
Some believe judges make decisions
that are inconsistent with community
standards and values; they believe
that common law is itself

15. undemocratic. This point of view is
often expressed in the media,
particularly during debates about
sentencing.
Lack of review: Courts lack the
personnel, time, resources and
opportunity to fully consider the
changes they make to common law.
In the parliament, draft legislation
will go through numerous stages of
review, including inquiries,
investigations, parliamentary
committees, law reform bodies and
consultation, before it is drafted and
introduced. In contrast, a judge or
panel of judges has minimal time and
resources at their disposal when
forming common law decisions.
Easily overridden: Common law
can be overridden at any time by
legislation. The parliament is the

16. supreme law-making body and
common law is considered inferior to
legislation made by the parliament.
This may be a disadvantage of
common law but it is also a response
to the argument that common law is
undemocratic. If the parliament
considers that common law is
problematic or does not reflect the
views of the people, it can legislate to
abolish or change it.
Common Law Examples
On July 27, 1934, Harry Tompkins was
walking on a narrow footpath by the Erie
Railroad tracks in Hughestown,
Pennsylvania. As a train approached,
something protruding from one of the
railcars struck Tompkins and knocked him
down, causing his arm to be crushed beneath
a train wheel. The train was operated by
a corporation registered in New York, so

17. Tompkins filed his civil lawsuit in federal
district court.
The district court judge who heard the case
followed current federal law of the time, in
applying federal common law to the case,
rather than common law of either the state of
Pennsylvania or New York. Federal
common law applied a standard of “ordinary
negligence” when determining what level of
care the railroad owed to individuals who
are not employed by the railroad. Common
law in the state of Pennsylvania, where the
accident occurred, specifies that the railroad
owes a “wanton negligence” duty of care to
trespassers, which requires proof of a greater
level of negligence. The court found in
Tompkins’ favor, and awarded him
damages.
Prior to the case of Tompkins v. Erie
Railroad, it had already been determined
that, when a case is heard in federal court

18. in diversity, meaning that the case is filed in
federal court because it crosses state
jurisdictions, the state’s statutory law must
be applied. It had also been ruled, however,
that a federal court hearing a case in
diversity was not required to apply the
state’s common law, or precedent, to the
case.
The railroad appealed the matter to the
appellate court, then to the U.S. Supreme
Court. After reviewing the case, the
Supreme Court ruled that the federal district
court did not have the authority to create
federal common law when reviewing state
law claims in diversity, but must apply state
common law.
This topic was quite important, as it was an
effort by the Supreme Court to address the
issue of “forum shopping,” where plaintiffs
in cases that cross jurisdictions take their
case to the state or jurisdiction whose laws

19. would give them the greatest advantage.
With this decision, the Court overturned
federal civil procedures, creating a mandate
that federal common law should be applied
only to strictly federal cases, and not to
diversity cases.
A famous case of M C Mehta v Union of
India, it was witnessed how a common law
principle was changed. Strict liability was
abolished and principle of absolute liability
was set as new law in similar circumstances.
Now as per the present scenario in Indian
Legal System, one can easily figure it out
that statutory laws are now made for almost
all areas of crimes and wrongs. There are
few areas even now where the law has not
been codified completely and its example is
tort law. Many of the cases in India follows
or have followed precedents of common

20. law. One of the precedents set up in Ryland
v Flethcher which dealt with principle of
strict liability was considered in India but
few parts of the judgments were overruled.
So, as of the present state of Indian Legal
System we can easily analyze from the
research that Statutory Law is prevailing
over the case law as far as India is
concerned
There are many academic traditions of
interdisciplinary enquiry and critique that
can be employed to interpret the Indian
Supreme Court's record in 2018, it is
however possible to identify some trends.
Today’s is the second of two posts
profiling ten cases of the Indian Supreme
Court that captured public imagination
deeply and shaped political-constitutional

21. discourse in substantive ways in 2018. The
discussion of the ten cases is divided into
themes and split across two posts. This
week’s post deals with themes of civil
liberty, federalism, privacy and biometrics,
and religion and gender equality – with last
week’s post, dealing with substantive
equality, reservation policies and counter-
majoritarianism.
Protector of Civil and Personal Liberty?
The menace of lynching, with
disproportionate targeting of Muslims and
Dalits, is a grim reminder of the fair
distance that Indian democracy still has to
traverse to realize the promise of
‘constitutional citizenship’ – in which one's
identity is irrelevant to the realization of
rights and equal protection of the law.
Apart from the majoritarian backlash,
another index for testing the equal

22. citizenship claim is the state of civil and
personal liberties in the nation, in particular
the freedom to dissent.
This claim was tested when the State
arrested five human rights activists and
critics of the State – calling them ‘Urban
Naxals'. These human rights activists had
substantial experience working with
marginalized and disadvantaged
communities. Further, they had often been
critical of the government in the past.
This sudden arrest by the Pune Police was
seen as an attempt to freeze dissent by the
heavy hand of state machinery. In response,
five eminent citizens filed a Public Interest
Litigation (PIL) case in the Supreme Court,
challenging the arrests and seeking a court-
monitored probe into the investigation.

23. The Court in a 2:1 judgment in Romila
Thapar v. UOI rejected the plea for a
Special Investigation Team (SIT) to probe
into the investigation, on the ground that
the State had adduced sufficient evidence
for the possibility that they are members of
a banned terrorist organization, CPI (M).
Note that the petitioners were not allowed
to scrutinize this evidence, as it was
submitted in sealed covers – only the
judges viewed it. The lone dissenting
judge, DY Chandrachud, called for a court-
monitored probe as he recounted various
procedural lapses in the arrest process,
signalling States’ selective targeting of
critics.
This case forces one to re-examine the
fragile nature of speech protection when it
collides with state power. The standards of
proof, required for successful conviction,
need not be met to justify a call for a probe

24. at initial stages. A prima facie case is
sufficient to merit investigation. Further,
should the power asymmetry between
citizens and the State not be factored in,
when such brazenness is shown in arresting
dissenters and critics? Rather than
legitimizing sealed cover jurisprudence,
shouldn’t the Court critically assess the
government's account of the facts?
In defence of Federalism
With the incumbent Union Government
having heavy numbers in the Parliament,
there seems to be a shift in the delicate
federal balance between the Centre and the
States. There’s a growing concern that the
Centre is pushing hard to control the
opposition-ruled States through the
institution of the ‘Lieutenant Governor’.
The Centre appoints a Lieutenant
Governor, or LG, as the constitutional head

25. of a State (or Union Territory), that wields
discretionary powers. The exercise of
discretionary power, exercised at the behest
of the Union Government, has the potential
to disrupt the federal balance.
The case that brought the institution of the
LG into controversy was the Government
of NCT of Delhi v UOI case. Holding
representative democracy to be an essential
feature of the office of the executive, the
Court held that the LG is not the executive
head of Delhi. Rather, it held that the Chief
Minister and the Council of Ministers lead
the executive. It clarified that the LG, who
is an administrator appointed by the Union,
is bound by the advice of the Chief
Minister, and secondly, that the LG has no
independent power under the Constitution.
The Court further observed that where two
interpretations are possible on textual
provision, primacy should be given to an

26. interpretation, which furthers representative
democracy, a basic feature of the
Constitution.
Even though the principled issue of who
the executive head of the Delhi
Government is, is now settled, the further
questions of who heads the Services and
the Anti-Corruption Bureau, and who has
the power to set up enquiries over public
functionaries are yet to be comprehensively
settled. This is because the 5-judge bench
in this case dealt with the constitutional
question of who heads the Delhi
Government and specific disputes were
referred to the smaller benches.
Nevertheless, the Court in 2018 played an
active role in strengthening the principle of
co-operative federalism by limiting the
scope of the Centre's interference and by
checking the discretionary powers of the
LG.

27. Aadhaar Challenge
In 2018, the Court faced a significant test
in its assessment regarding whether the
Government's expansive and controversial
identity program, called Aadhaar, ran afoul
of privacy. Note that in 2017, a nine-judge
bench of the Supreme Court had recognized
the right to privacy as a fundamental right
guaranteed by the Constitution.
In a 4:1 split verdict in K.S. Puttaswamy v.
UOI, the Court upheld the constitutionality
of the Aadhaar Act, but curtailed its wide
ambit by striking down provisions which
had allowed non-state parties to make
Aadhaar mandatory. However, the Court
did not strike down Section 7, which makes
Aadhaar mandatory for qualification for
State subsidies and benefits.

28. Justice AK Sikri writing the majority
opinion, spoke of balancing two notions of
the right to dignity – individual dignity,
predicated on freedom of choice, and a
communitarian approach to dignity, which
accounts for the "community good." By
upholding Section 7, Justice Sikri signalled
that the citizens dependent upon State
subsidies and benefits may have to place
limits on their right to self-identify, a part
of the right to individual dignity.
Besides bringing civil society together to
challenge the world's largest biometric
identification project, with the enrolment of
1.2 billion citizens, the case is significant
also for seeing the most extended oral
arguments in the 21st century. Oral
arguments lasted for 38 days. The longest
hearing ever, occurred in 1973 in
Kesavanand Bharti v. State of Kerala,
where arguments lasted for 68 days.

29. Reconciling Religion with Gender
Equality
In testing a religious custom, spanning
centuries, against the tenets of gender
equality, the Supreme Court in Indian
Young Lawyers Association v. State of
Kerala by a 4:1 decision, held that the
Sabarimala religious custom, which
prohibits women in their 'menstruating
years' from entering the Temple, violates
fundamental rights guaranteed to women
under the Constitution. Justice Indu
Malhotra's dissent has raised questions
about the extent to which established
religious practices can be challenged on
notions of equality.
The dispute is still unfolding as over 50
review petitions are yet to be decided. Even
four months after the judgment, there is
almost nil enforceability of the judgment

30. with only two women managing to get
entry into a temple. This chips away from
the authority of the highest Court, if it is
helpless in the face of political protests in
getting its judgment enforced. Clearly, it’s
the troika of reasoning, outcome, and
enforceability together that give legitimacy
to the Supreme Court as the final arbiter of
law.
With the analysis in these two posts we
present to the readers a 10-case series by
the Supreme Court Observer where we
have detailed the journey and the reception
of these cases. It is written with a common,
non-technical reader, who has an interest in
public affairs, in mind. However, the
detailed references and hyperlinks allow
the more informed reader to look into the
journey of these cases more intensively.
Below, find links to the #10 Cases that
Shaped India in 2018:

31. 1. Constitutionality of Aadhaar Act (K.S.
Puttaswamy v. Union of lndia)
2. Sabarimala Temple Entry (Indian
Young Lawyers Association v. State of
Kerala)
3. Constitutionality of Section 377 (Navtej
Johar v. Union of India)
4. Arrested Activists (Romila Thapar v.
Union of India)
5. Decriminalisation of Adultery (Joseph
Shine v. Union of India)
6. Reservation in Promotion (Jarnail
Singh v. Lacchmi Narain Gupta)
7. Electoral Disqualification (Public
Interest Foundation v. Union of India)
8. Hadiya Marriage (Shafin Jahan v. KM
Ashokan)
9. Cow Vigilantism (Tehseen Poonawalla
v. Union of India)

32. 10. Special Status of Delhi (Government of
NCT of Delhi v. Union of India)
Conclusion :
the common law system , the judge can
produce law and also to declare it by means
of interpretation of previous judgements or
a written law. While the English law is
being increased by written statutes and EU
regulations the role of the judge will be
limited to the new legislation.