How to ascertain ratio decidendi of a Judgment?

 It is well settled in law that the ratio of a decision has to be understood regard being had to its context and factual exposition. The ratiocination in an authority is basically founded on the interpretation of the statutory provision. If it is based on a particular fact or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. Lord Halsbury in Quinn v. Leathem10 has ruled:-

“… every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found.”{Para 28}

29. A three-Judge Bench in Union of India and others v. Dhanwanti Devi and others 11 , while adverting to the concept of precedent under Article 141 of the Constitution, has opined thus:-

“Before adverting to and considering whether solatium and interest would be payable under the 101901 AC 495 : (1900-03) ALL ER Rep 1 (HL) 11 (1996) 6 SCC 44 Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Krishan Khosla case (1993) Supp (2) 149 is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.”

Reportable

Supreme Court of India

Royal Medical Trust vs Union Of India on 12 September, 2017

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Whether findings of facts given by court or judgment on concession is binding as precedent?

 So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 SC 1002 and AIR 1973 SC 794). 

Supreme Court of India

Dir. Of Settlements, A.P. & Ors vs M.R. Apparao & Anr on 20 March, 2002

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Whether Judgment delivered by the court without hearing another side/ exparte is binding as precedent?

Also, in Municipal Corpn. of Delhi v. Gurnam Kaur,

(1989) 1 SCC 101 at 110, this Court stated:

“11. Pronouncements of law, which are not

part of the ratio decidendi are classed as

obiter dicta and are not authoritative. With all

respect to the learned Judge who passed the

order in Jamna Das case [Writ Petitions Nos.

981-82 of 1984] and to the learned Judge who

agreed with him, we cannot concede that this

Court is bound to follow it. It was delivered

without argument, without reference to the

relevant provisions of the Act conferring

express power on the Municipal Corporation

to direct removal of encroachments from any

public place like pavements or public streets,

and without any citation of authority.

Accordingly, we do not propose to uphold the

decision of the High Court because, it seems

to us that it is wrong in principle and cannot be

justified by the terms of the relevant

provisions. A decision should be treated as

given per incuriam when it is given in

ignorance of the terms of a statute or of a rule

having the force of a statute. So far as the

order shows, no argument was addressed to

the court on the question whether or not any

direction could properly be made compelling

the Municipal Corporation to construct a stall

at the pitching site of a pavement squatter.”

(Emphasis Supplied)

It is clear, therefore, that where a matter is not argued at

all by the respondent, and the judgment is one of

reversal, it would be hazardous to state that the law can

be declared on an ex parte appraisal of the facts and the

law, as demonstrated before the Court by the appellant’s

counsel alone. That apart, where there is a detailed

judgment of the High Court dealing with several

authorities, and it is reversed in a cryptic fashion without

dealing with any of them, the per incuriam doctrine kicks

in, and the judgment loses binding force, because of the

manner in which it deals with the proposition of law in

question. Also, the ratio decidendi of a judgment is the

principle of law adopted having regard to the line of

reasoning of the Judge which alone binds in future cases.

Such principle can only be laid down after a discussion of

the relevant provisions and the case law on the subject. If

only one side is heard and a judgment is reversed,

without any line of reasoning, and certain conclusions

alone are arrived at, without any reference to any case

law, it would be difficult to hold that such a judgment

would be binding upon us and that we would have to

follow it. In the circumstances, we are of the opinion that

the judgment in Yasangi Venkateswara Rao (supra)

cannot deter us in our task of laying down the law on the

subject. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 134 OF 2013

JAYANT VERMA Vs  UNION OF INDIA 

Author: R.F. NARIMAN, J.

Dated: February 16, 2018.

Citation: 2018(4) SCC 743

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When decision of one co-ordinate bench is not binding on another co-ordinate bench of court?

 The law of precedents, as we understand, need to be stated. We are bound by any direct pronouncement of a Coordinate Bench on the proposition of law having bearing on a live factual dispute involved therein, and we cannot sit in appeal over such decision. We have to respect it as a matter of propriety and judicial discipline. We cannot endeavour to find fault with the decision of a Co-ordinate Bench unless we propose to refer the matter to a larger Bench for decision after recording reasons for disagreement, if any. However, any decision rendered by a Coordinate Bench of the High Court on the abstract proposition of law having no bearing on the factual aspects involved in the matter, would assume a character of an obiter dicta, i.e. an opinion which is not necessary to reaching a decision in the matter. Such decision would not constitute a ratio which would bind us. [see paras 21, 22, 26 and 27 of the decision of the Apex Court in the case of Balwant Rai Saluja and another v. Air India Limited and others, reported in MANU/SC/0732/2014 : (2014) 9 SCC 407]. The only exception to this principle would be a decision rendered by a larger Bench on the abstract proposition of law in a reference of a live dispute, which would bind us. It is true that we are bound even by an obiter in the decision of the Apex Court in the absence of its direct pronouncement on the same question in any other matter.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 3055, 3966 and 3055 of 2000

Decided On: 27.06.2017

Vasant Ramchandra Kumbhare. Vs. Scheduled Tribes Certificate Scrutiny Committee and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande and Swapna Joshi, JJ.

Citation: 2017(6) MHLJ 530

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Whether finding of judge on hypothetical situation amounts to obiter dicta?

 There are various tests to find out whether a particular observation of the Court is part of the ratio or its obiter. The first test is whether that part of the decision results from the determination of a live issue raised between the parties. A Judge may let fall various observations not precisely relevant to the issue before him. A hypothetical situation may be taken for illustration and he may by hypothctically apply a law. Such illustration not being the issue it would not be proper to accord the observation equal weight with what is given to his actual decision. In Mahindra & Mahindra MANU/SC/0391/1979 : [1979]2SCR1038 (supra) what happened is that having decided the case on the unamended S. 100 of the Code which was the live issue, the Supreme Court felt it unnecessary to pronounce on the question of applicability of the amended S. 100 of the Code but it was nevertheless tempted academically to indicate how it would have decided if that were necessary. Such observation cannot be endowed with the authority of an actual decision. It may have importance or persuasive value but not the authoritative value.

76. But what is more important in Boobna's case than the question whether the observations of the Supreme Court in Mahindra & Mahindra (supra) could afford the tests for the amended S. 100, is the other proposition that even the obiter of the Supreme Court is binding on this Court. But this proposition is debatable. In this connection the following observation occurring in Salmond on Jurisprudence 12th Edition at page 176 is worth quoting:--

"As against persons not parties to the suit, the only part of a case which is conclusive is the general rule of law for which it is authority. This rule or proposition the ratio decidendi, may be described roughly as the rule of law applied and acted on by the Court, or the rule which the Court regarded as governing the case."

At another place the author observes:--

"These observations by the way, obiter dicta, are without binding authority, but are nonetheless important; not only do they help to rationalise the law but they serve to suggest solution to problems not yet decided by the Courts. Indeed dicta of the House of Lords or of Judges who were masters of their fields, like Lord Blackburn, may often in practice enjoy greater prestige than the rationes of lesser judges."

The observation of Paton also supports the view that the obiter cannot bind as a precedent :--

"Clearly something said by a Judge about the law in his judgment which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however persuasive it may be, and it will be described as an obiter dictum" (Paton: A Text Book of Jurisprudence, 4th Edition at page 210).

IN THE HIGH COURT OF CALCUTTA

Full Bench Reference Nos. 1 and 2 of 1992 (arising out of S.A. Nos. 354 and 355 of 1982)

Decided On: 18.12.1992

Ratanlal Bansilal and others  Vs.  Kishorilal Goenka and others

Hon'ble Judges/Coram:

A.M. Bhattacharjee, Actg. C.J., A.K. Sen Gupta, U.C. Banerjee, Shamsuddin Ahmed and N.K. Mitra, JJ.

Citation : AIR 1993 Cal 144

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Whether one judgment can have more than one ratio decidendi?

 It is clear that one judgment can have more than one ratio decidendi. This
was recognized early on by the Privy Council in an appeal from the Supreme Court
of New South Wales, in Commissioners of Taxation for the State of New South
Wales v. Palmer & Others, 1907 Appeal Cases 179 at 184. Lord Macnaghten put it
thus:
“… But it is impossible to treat a proposition which the court
declares to be a distinct and sufficient ground for its decision as a
mere dictum, simply because there is also another ground stated
upon which, standing alone, the case might have been determined.”
 In Jacobs v. London County Council, [1950] 1 All E.R. 737 at 741, the House
of Lords, after referring to some earlier decisions held, as follows:
“..However, this may be, there is, in my opinion, no justification
for regarding as obiter dictum a reason given by a judge for his
decision, because he has given another reason also. If it were a
proper test to ask whether the decision would have been the same
apart from the proposition alleged to be obiter, then a case which
ex facie decided two things would decide nothing. A good
illustration will be found in London Jewellers, Ltd., v.
Attenborough ([1934] 2 K.B. 206). In that case the determination of
one of the issues depended on how far the Court of Appeal was
bound by its previous decision in Folkes v. King ([1923] 1 K.B.
282), in which the court had given two grounds for its decision, the
second of which [as stated by Greer, L.J. ([1934] 2 K.B. 222), in
Attenborough’s case ([1934] 2 K.B. 206)] was that:
“….where a man obtains possession with authority to
sell, or to become the owner himself, and then sells, he
cannot be treated as having obtained the goods by
larceny by a trick.”
In Attenborough’s case ([1934] 2 K.B. 206) it was contended that,
since there was another reason given for the decision in Folkes’
case ([1923] 1 K.B. 282), the second reason was obiter, but Greer,
L.J., said ([1934] 2 K.B. 222) in reference to the argument of
counsel:
“I cannot help feeling that if we were unhampered by
authority there is much to be said for this proposition
which commended itself to Swift, J., and which
commended itself to me in Folkes v. King ([1923] 1 K.B.
282), but that view is not open to us in view of the
decision of the Court of Appeal in Folkes v. King ([1923]
1 K.B. 282). In that case two reasons were given by all
the members of the Court of Appeal for their decision
and we are not entitled to pick out the first reason as the
ratio decidendi and neglect the second, or to pick out the
second reason as the ratio decidendi and neglect the first;
we must take both as forming the ground of the
judgment.” 

So, also, in Cheater v. Cater ([1918] 1 K.B. 247) Pickford, L.J.,
after citing a passage from the judgment of Mellish, L.J., in Erskine
v. Adeane ((1873), 8 Ch. App. 756), said ([1918] 1 K.B. 252):
 “That is a distinct statement of the law and not a
dictum. It is the second ground given by the lord justice
for his judgment. If a judge states two grounds for his
judgment and bases his decision upon both, neither of
those grounds is a dictum.” 
Reportable
IN THE SUPREME COURT OF INDIA
Original Civil Jurisdiction
Writ Petition (C) No. 118 of 2016

Shayara Bano Vs Union of India and others.

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What is per incuriam Judgment?

It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. 

Supreme Court of India

Sundeep Kumar Bafna vs State Of Maharashtra & Anr on 27 March, 2014

Bench: K.S. Radhakrishnan, Vikramajit Sen

REPORTABLE

Citation;(2014)16 SCC623, 2014 Cri.L.J. 2245, 2014 AIR SCW 2115,2014 (2) KLT 809, AIR 2014 SC 1745,

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Leading Judgment on Doctrine of precedent and Ratio decidendi

Since heavy reliance has been placed by the State on Satendra Prasad Jain vs.
State of U.P. (1993) 4 SCC 369 and Lt. Governor of Himachal Pradesh v. Avinash
Sharma (1970) 2 SCC 149, we must sedulously determine their ratios. This would
therefore be the apposite time and place for a brief discussion on the contours and
connotations of the term ratio decidendi, which in Latin means “the reason for
deciding”. According to Glanville Williams in ‘Learning the Law’, this maxim “is
slightly ambiguous. It may mean either (1) rule that the judge who decided the case
intended to lay down and apply to the facts, or (2) the rule that a later Court concedes
him to have had the power to lay down.” In G.W. Patons’ Jurisprudence, ratio
decidendi has been conceptualised in a novel manner, in that these words are “almost
always used in contradistinction to obiter dictum. An obiter dictum, of course, is
always something said by a Judge. It is frequently easier to show that something said
in a Judgment is obiter and has no binding authority. Clearly something said by a
Judge about the law in his judgment, which is not part of the course of reasoning
leading to the decision of some question or issue presented to him for resolution, has
no binding authority however persuasive it may be, and it will be described as an
obiter dictum.” ‘Precedents in English Law’ by Rupert Cross and JW Harris states -
“First, it is necessary to determine all the facts of the case as seen by the Judge;
secondly, it is necessary to discover which of those facts were treated as material by
the Judge.” Black’s Law Dictionary, in somewhat similar vein to the aforegoing,
bisects this concept, firstly, as the principle or rule of law on which a Court’s decision
is founded and secondly, the rule of law on which a latter Court thinks that a previous
Court founded its decision; a general rule without which a case must have been
decided otherwise.
17 A Constitution Bench has also reflected on the true nature of ratio decidendi in
Krishena Kumar vs. Union of India, 1990 (4) SCC 207, as is discernable from the
following passages:
19. The doctrine of precedent, that is being bound by a previous
decision, is limited to the decision itself and as to what is necessarily
involved in it. It does not mean that this Court is bound by the various
reasons given in support of it, especially when they contain
“propositions wider than the case itself required”. This was what Lord
Selborne said in Caledonian Railway Co. v. Walker’s Trustees and
Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also
said : “Judicial authority belongs not to the exact words used in this or
that judgment, nor even to all the reasons given, but only to the
principles accepted and applied as necessary grounds of the decision.”
20. In other words, the enunciation of the reason or principle upon
which a question before a court has been decided is alone binding as a
precedent. The ratio decidendi is the underlying principle, namely, the
general reasons or the general grounds upon which the decision is
based on the test or abstract from the specific peculiarities of the
particular case which gives rise to the decision. The ratio decidendi
has to be ascertained by an analysis of the facts of the case and the
process of reasoning involving the major premise consisting of a
pre-existing rule of law, either statutory or judge-made, and a minor
premise consisting of the material facts of the case under immediate
consideration. If it is not clear, it is not the duty of the court to spell it
out with difficulty in order to be bound by it.
18 The following paragraph from the determination of the Three-Judge Bench in
Sanjay Singh vs. U.P. Public Service Commission, Allahabad, 2007 (3) SCC 720, is
instructive and is reproduced for this reason -
10. The contention of the Commission also overlooks the fundamental
difference between challenge to the final order forming part of the
judgment and challenge to the ratio decidendi of the judgment.
Broadly speaking, every judgment of superior courts has three
segments, namely, (i) the facts and the point at issue; (ii) the reasons
for the decision; and (iii) the final order containing the decision. The
reasons for the decision or the ratio decidendi is not the final order
containing the decision. In fact, in a judgment of this Court, though the
ratio decidendi may point to a particular result, the decision (final
order relating to relief) may be different and not a natural consequence
of the ratio decidendi of the judgment. This may happen either on
account of any subsequent event or the need to mould the relief to do
complete justice in the matter. It is the ratio decidendi of a judgment
and not the final order in the judgment, which forms a precedent...
19 We also commend a careful reading of the following paragraphs from the
decision of the Constitution Bench in Islamic Academy of Education vs. State of
Karnataka, 2003 (6) SCC 697, which we shall reproduce for facility:
139. A judgment, it is trite, is not to be read as a statute. The ratio
decidendi of a judgment is its reasoning which can be deciphered only
upon reading the same in its entirety. The ratio decidendi of a case or the
principles and reasons on which it is based is distinct from the relief
finally granted or the manner adopted for its disposal. (See Executive
Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj)
140. In Padma Sundara Rao v. State of T.N it is stated: (SCC p. 540,
paragraph 9)
“There is always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts of
a particular case, said Lord Morris in Herrington v. British Railways
Board(Sub nom British Railways Board v. Herrington). Circumstantial
flexibility, one additional or different fact may make a world of difference
between conclusions in two cases.”
(See also Haryana Financial Corpn. v. Jagdamba Oil Mills)
141. In General Electric Co. v. Renusagar Power Co it was held:
(SCC p. 157, paragraph 20)
“As often enough pointed out by us, words and expressions used in a
judgment are not to be construed in the same manner as statutes or as
words and expressions defined in statutes. We do not have any doubt that
when the words ‘adjudication of the merits of the controversy in the suit’
were used by this Court in State of U.P. v. Janki Saran Kailash Chandra
the words were not used to take in every adjudication which brought to an
end the proceeding before the court in whatever manner but were meant
to cover only such adjudication as touched upon the real dispute between
the parties which gave rise to the action. Objections to adjudication of the
disputes between the parties, on whatever ground, are in truth not aids to
the progress of the suit but hurdles to such progress. Adjudication of such
objections cannot be termed as adjudication of the merits of the
controversy in the suit. As we said earlier, a broad view has to be taken of
the principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided.”
142. In Rajeswar Prasad Misra v. State of W.B it was held:
“No doubt, the law declared by this Court binds courts in India but it
should always be remembered that this Court does not enact.”
(See also Amar Nath Om Prakash v. State of Punjab and Hameed
Joharan v. Abdul Salam)
143. It will not, therefore, be correct to contend, as has been contended
by Mr Nariman, that answers to the questions would be the ratio to a
judgment. The answers to the questions are merely conclusions. They
have to be interpreted, in a case of doubt or dispute with the reasons
assigned in support thereof in the body of the judgment, wherefor, it
would be essential to read the other paragraphs of the judgment also. It is
also permissible for this purpose (albeit only in certain cases and if there
exist strong and cogent reasons) to look to the pleadings of the parties.
144. In Keshav Chandra Joshi v. Union of India this Court when faced
with difficulties where specific guidelines had been laid down for
determination of seniority in Direct Recruit Class II Engg. Officers’ Assn.
v. State of Maharashtra held that the conclusions have to be read along
with the discussions and the reasons given in the body of the judgment.
145. It is further trite that a decision is an authority for what it
decides and not what can be logically deduced therefrom.”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3385 OF 2012

LAXMI DEVI  V STATE OF BIHAR 

Dated;July 03, 2015.
VIKRAMAJIT SEN,J.
Citation;(2015) 10 SCC241

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Whether judgments rendered on the basis of consent are precedent?

It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge'sdecision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das'case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which PG NO 938 was acceptable by all the parties concerned. The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Art. 38(2) of the Constitution and said:

Supreme Court of India

Municipal Corporation Of Delhi vs Gurnam Kaur on 12 September, 1988

Equivalent citations: 1989 AIR 38, 1988 SCR Supl. (2) 929

(1989) 1 SCC101

Bench: Sen, A.P. (J)

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Whether judgment sub silentio is having precedential value?

Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

Supreme Court of India

Municipal Corporation Of Delhi vs Gurnam Kaur on 12 September, 1988

Equivalent citations: 1989 AIR 38, 1988 SCR Supl. (2) 929

(1989) 1 SCC101

Bench: Sen, A.P. (J)

Read full Judgment here: Click here

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