What is the effect of SC recalling its Judgment in Review Petition?

When the Supreme Court recalls its judgment in a review petition, it has significant implications for the legal system. This action essentially renders the recalled judgment as "Non est," meaning it no longer exists unless specific provisions are made in the recall order to preserve certain aspects of it. Here's a breakdown of the effects of such a recall:

Once a judgment is recalled, any legal principles or ratios established by it lose their binding authority. This means that courts and parties can no longer rely on or cite these principles as legal precedents in future cases. The recalled judgment is effectively invalidated, and its influence on subsequent legal decisions is nullified.

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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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Bombay HC: Basic principles for ascertaining precedential value of a decision

 It is the ratio understood in its correct perspective that is made applicable to a subsequent case on strength of a binding precedent. Ratio decidendi is thus the reason for deciding as reasoning is the soul of decision making process. Every settled principle of law has to be rationally understood with reference to the facts of the case in which such principle of law is stated. In other words, facts make the law and this should always be kept in mind while applying the principles stated and reasoning in support thereof. A little difference in the facts or additional facts may make a lot of difference in the precedential value of a decision.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 315 of 2003

Decided On: 10.06.2009

Rajeshwar  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Swatanter Kumar, C.J., A.P. Lavande and V.A. Naik, JJ.

Citation: 2009 ( 4 ) MhLj 483,2009 CriLJ 3816, MANU/MH/0446/2009

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Which case law is to be followed If two or more mutually irreconcilable decisions of the Supreme Court are cited?

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 Coequal 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.{Para 15}
An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. {Para 16}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 689 of 2014 

Decided On: 27.03.2014

Sundeep Kumar Bafna  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Vikramajit Sen, JJ.

Citation: AIR 2014 SC 1745,MANU/SC/0239/2014

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Supreme Court: Unreasoned Decisions passed On Technical Grounds Without Entering Into Merits Are Not Binding Precedents

Article 141 of the Constitution of India provides that the law

declared by the Supreme Court shall be binding on all courts

within the territory of India, i.e. the pronouncement of the law on

the point shall operate as a binding precedent on all courts within

India. Law declared by the Supreme Court has to be essentially

understood as a principle laid down by the court and it is this

principle which has the effect of a precedent. A principle as

understood from the word itself is a proposition which can only be

delivered after examination of the matter on merits. It can never

be in a summary manner, much less be rendered in a decision

delivered on technical grounds, without entering into the merits at

all. A decision, unaccompanied by reasons can never be said to

be a law declared by the Supreme Court though it will bind the

parties inter-se in drawing the curtain on the litigation. It,

therefore, follows that when no reason is given, but a special leave

petition is dismissed simpliciter, it cannot be said that there has been a

declaration of law by this Court under Article 141 of the Constitution.”

[underlining added]

Raj Pal’s case having been dismissed on the ground that no

sufficient cause was shown for the delay in refiling, Raj Pal’s case

ought not to have been quoted as precedent of this Court by the

High Courts.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2016 OF 2020

UNION OF INDIA  Vs  M.V. MOHANAN NAIR

R. BANUMATHI, J.

Dated:March 05, 2020.

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Whether old case laws loses precedential value with time?

38. It needs to be stated here that the decisions relied upon by Mr. Lalit are undoubtedly binding precedents for the respective issues decided in those cases but it is not possible to stretch those decisions in support of the point canvassed by him. We must also state here that on the basis of the aforementioned decisions Mr. Lalit was able to build up a persuasive argument. But in the larger perspective and with the change in times we find the submissions quite inacceptable. Here it is important to bear in mind that all the decisions relied upon by Mr. Lalit, from Damadilal to H. Shiva Rao were rendered between 1976 to 1986 during the period when, to put it mildly, the Court used to be overly protective of the tenant and for good reasons too because that is the apparent thrust of the Rent Act. The Rent Act was the socio-legal response to certain historical developments, namely, the acute shortage of housing in the aftermath of the World War, the great influx of refugees in a number of States of the Union following the partition of the country and the massive migration inside the country from rural areas to the urban centres as a result of rapid urbanisation. All these developments that took place almost at the same time skewed the law of supply and demand totally in favour of the landlord. The need of the hour, therefore, was to protect the tenant, who would have otherwise been left completely at the mercy of the landlord. The legislature intervened and brought in the Rent Act, severely restricting the grounds for enhancement of rent and for eviction of the tenant from the rented premises, thus regulating the relationship between the landlord and the tenant beyond the general law under the Transfer of Property Act, 1882. In this regard the Court responded in equal, if not greater measures. But after about three quarters of a century and three generations later when things are no longer the same and the urban centres are faced with newer problems, some of those having their origin in the Rent Act itself, there is the need to take a re-look on the Court's attitude towards the relationship between the landlord and the tenant and to provide for a more level ground in the judicial arena.
39. The way this Court has been looking at the relationship between the Landlord and the Tenant in the past and the shift in the Court's approach in recent times have been examined in some detail in the decision in Satyawati Sharma vs. Union of India & Anr., (2008) 5 SCC 287. In that decision one of us (Singhvi, J.) speaking for the Court referred to a number of earlier decisions of the Court and (in paragraph 12 of the judgment) observed as follows:

"Before proceeding further we consider it necessary to observe that there has been definite shift in the Court's approach while interpreting the rent control legislations. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant- Mohinder Kumar vs. State of Haryana1, Prabhakaran Nair vs. State of T.N.2, D.C. Bhatia vs. Union of India3 and C.N. Rudramurthy vs. K. Barkathulla Khan4. In these and other cases, the Court consistently held that the paramount object of every rent control legislation is to provide safeguards for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments."

40. He then referred to some later decisions and (in paragraph 14 of the judgment) quoted a passage from the decision in Joginder Pal vs. Naval Kishore Behal (2002) 5 SCC 397, to the following effect:

"... The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak and feeble and feel humble."

(emphasis in original) (1985) 4 SCC 221 (1987) 4 SCC 238 (1995) 1 SCC 104(1998) 8 SCC 275

41. Commenting upon the Full Bench decision of the Delhi High Court that had upheld the Constitutional validity of section 14(1)(e) of the Delhi Rent Control Act and that came under challenge in Satyawati Sharma, Singhvi, J. (in paragraph 29 of the judgment) observed as follows:

"... It is significant to note that the Full Bench did not, at all, advert to the question whether the reason/cause which supplied rationale to the classification continued to subsist even after lapse of 44 years and whether the tenants of premises let for non-residential purposes should continue to avail the benefit of implicit exemption from eviction in the case of bona fide requirement of the landlord despite see-saw change in the housing scenario in Delhi and substantial increase in the availability of buildings and premises which could be let for non -residential or commercial purposes."

42. The decision in Satyawati Sharma then referred to the doctrine of temporal reasonableness and in paragraph 32 observed as follows:

"It is trite to say that legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent."

43. We reaffirm the views expressed in Satyawati Sharma and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court's protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-, plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)

Supreme Court of India

State Of Maharashtra & Anr vs M/S Super Max ... on 27 August, 2009

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Whether brief Judgments Of Supreme Court Passed After Grant Of Special Leave Are Binding Precedents?

 The argument of the respondent proceeds that the decision
in M/s. Innovatives Systems (supra), neither refers to any
specific provision nor has it expressly over turned the decision of
the Division Bench of the High Court in Ankamma Trading
Company (supra). Thus, it cannot be considered as a binding
precedent. We are not impressed by this submission. Indeed, the
decision of this Court in M/s. Innovatives Systems (supra), is a

brief judgment. That, however, would make no difference. For, it
is well established that once a special leave petition has been
granted, the doors for the exercise of appellate jurisdiction of this
Court have been let open. Resultantly, the order impugned before
the Supreme Court became an order appealed against and any
order passed thereafter would be an appellate order and attract
the doctrine of merger despite the fact that the order is of reversal
or of modification or of affirming the order appealed against and
including is a speaking or nonspeaking
one. This legal position
has been restated in Kunhayammed (supra). Having said this,
we must reject the argument of the respondentState
that the
decision of this Court in M/s. Innovatives Systems (supra), and
other decisions following the same, cannot be considered as
binding precedent.

(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7574 OF 2014

M/S. S.E. Graphites Private Limited Vs State of Telangana 
A.M. Khanwilkar, J.
Dated:July 10, 2019.

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What is inversion test for determining ratio decidendi?

 In order to determine this aspect, one of the well-established tests is "The Inversion Test" propounded inter alia by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called "The Study of Cases"25 in the year 1892. This text book propounded inter alia what is known as the "Wambaugh Test" or "The Inversion Test" as the means of judicial interpretation. "The Inversion Test" is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under:

In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also.26

103. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a at pg. 17 precedent", according to John Chipman Grey27, "it must be an opinion, the formation of which, is necessary for the decision of a particular case."

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 14697, 13451 of 2015, 

Decided On: 12.04.2018

State of Gujarat Vs.Utility Users' Welfare Association and Ors.

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Whether cryptic judgment will be treated as precedent?

 By a short judgment in Yasangi Venkateswara Rao (supra), this Court upset the elaborate judgment of the High Court thus:

7. We are unable to understand as to how the High Court could come to the conclusion that Parliament had no jurisdiction to enact Section 21-A. There can be no doubt that Section 21-A deals with the question of the rate of interest which can be charged by a banking company. Entry 45 of List I of the Seventh Schedule clearly empowers Parliament to legislate with regard to banking. The enactment of Section 21-A was clearly within the domain of Parliament. The said Section applies to all types of loans which are granted by a banking company, whether to an agriculturist or a non-agriculturist, and, therefore, reference by the High Court to Entry 30 of List II was of no consequence. In our opinion, the said Section 21-A had been validly enacted.

(at page 377)

At first blush, it appears that, though cryptic, the said paragraph does contain reasons for upsetting the High Court judgment. But, on a closer look, it becomes clear that there is no reasoning worth the name for so doing. Paragraph 7 is a series of conclusions put together without any clear reasoning in support. This is probably because only the learned Additional Solicitor General for the Appellant appeared before the Court and argued the case on behalf of the Appellant. The Respondent, though probably served, did not appear and consequently was not heard. It will also be noticed that, despite the fact that the judgment of the single Judge referred to a very large number of High Court, Federal Court, Privy Council and Supreme Court judgments, not a single judgment is adverted to in the cryptic paragraph 7 set out hereinabove. Can it be said that this judgment is a declaration of the law Under Article 141 of the Constitution, which as a matter of practice we cannot differ from being a bench of coordinate strength?

42. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), 'ratio decidendi' is described as follows:

The ratio decidendi of a case is any Rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.

(at page 72)

43. In Dalbir Singh v. State of Punjab MANU/SC/0099/1979 : (1979) 3 SCR 1059 at 1073-1074, a dissenting judgment of A.P. Sen, J. sets out what is the ratio decidendi of a judgment:

According to the well-settled theory of precedents every decision contains three basic ingredients:

(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 (i) and (ii) above.

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. [R.J. Walker & M.G. Walker: The English Legal System. Butterworths, 1972, 3rd Edn., pp. 123-24] It is not everything said by a judge when 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. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes [LR 1959 AC 7 43: (1959) 2 All ER 38] it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the judge is not bound to draw the same inference as drawn in the earlier case.

Similarly, this Court in Som Prakash Rekhi v. Union of India MANU/SC/0582/1980 : (1981) 2 SCR 111 at 139 referred to the "laconic discussion and limited ratio" in Subhajit Tewary v. Union of India MANU/SC/0059/1975 : (1975) 3 SCR 616, a judgment of a Constitution Bench of this Court, and was not bound by it. Krishna Iyer, J. put it thus:

We may first deal with Subhajit Tewary v. Union of India MANU/SC/0059/1975 : (1975) 3 SCR 616, where the question mooted was as to whether the C.S.I.R. (Council of Scientific and Industrial Research) was 'State' Under Article 12. The C.S.I.R. is a registered society with official and non-official members appointed by Government and subject to some measure of control by Government in the Ministry of Science and Technology. The court held it was not 'State' as defined in Article 12. It is significant that the court implicitly assented to the proposition that if the society were really an agency of the Government it would be 'State'. But on the facts and features present there the character of agency of Government was negatived. The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be 'State' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State'. With great respect, we agree that in the absence of the other features elaborated in Airport Authority case MANU/SC/0048/1979 : (1979) 3 SCC 489, the composition of the Governing Body alone may not be decisive. The laconic discussion and the limited ratio in Tewary (supra) hardly help either side here.

Also, in Municipal Corporation of Delhi v. Gurnam Kaur, MANU/SC/0323/1988 : (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.

Further, in State of M.P. v. Narmada Bachao Andolan, MANU/SC/0599/2011 : (2011) 7 SCC 639 at 679-680, it was stated:

65. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the Rule of stare decisis. Thus, the "quotable in law" is avoided and ignored if it is rendered in ignorance of a statute or other binding authority.

xxx xxx xxx

67. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

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.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 134 of 2013 (Under Article 32 of the Constitution of India)

Decided On: 16.02.2018

 Jayant Verma and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Navin Sinha, JJ.

Citation: (2018) 4 SCC 743

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Whether precedent can be distinguished due to single distinguishing feature?

 It is settled position of law that even a single distinguishing feature is sufficient to distinguish a precedent. Besides, precedents are never required to be applied without examination and evaluation of the facts in the context in which they came to be rendered.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 704 of 2014 and 6136 of 2016

Decided On: 19.01.2018

 Sayaji  Vs. Bajaj Auto Limited

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2018(3) MHLJ 296

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Whether stray sentence in a judgment without focused argument can be considered as ratio of judgment?

It is clear that a stray sentence in a judgment without a focused argument cannot be considered as the ratio of such a judgment. Also, on a careful reading of the second sentence in paragraph 19, it is clear that all that is stated by this Court is that, while exercising its power Under Section 26A of the Drugs Act, the basis of the Central Government's decision must be "expert advice". The sentence then goes on to add that the Drugs Act makes provision for obtaining such advice through the Board and the DCC. According to us, there was no focused argument on whether such advice is or is not mandatory before powers Under Section 26A of the Drugs Act can be exercised, and merely reading a stray sentence in this judgment does not lead to such a conclusion. Equally, the single Judge's reliance upon a Division Bench judgment contained in E. Merck (supra), where, in holding Section 26A to be constitutional, the Court stated:

Before the Government records its satisfaction to prohibit the manufacture, sale, distribution etc. of a particular drug, opinion of the DTAB and/or Drugs Consultative Committee is obtained.

This is an equally stray sentence and what has been stated with respect to Systopic Laboratories (supra), applies equally to this sentence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22972 of 2017 

Decided On: 15.12.2017

 Union of India (UOI) and Ors. Vs. Pfizer Limited and Ors.

Hon'ble Judges/Coram:
Rohinton Fali Nariman and Sanjay Kishan Kaul, JJ.

Citation:(2018) 2 SCC 39

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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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Whether judgment can be treated as binding precedent if it has not considered relevant statutory provision?

On a careful appreciation of the aforesaid decision, we find the factual matrix therein is explicitly the same as is in the present case. However, Mr. S. Ganesh, learned senior Counsel, would submit that in the said case, there has been no consideration of the concepts like brand name holder and trade mark holder and, therefore, the said decision should not be treated as a precedent. On the basis of the aforesaid submission, Mr. Ganesh contends that the said decision requires reconsideration and this Court should refer it to a larger Bench. Mr. Ganesh further submits that the ratio of the decision has to be understood in the background of the facts of the case and a decision is an authority for what is actually decides, not what logically follows from it. According to him, as the relevant provisions have not been construed, it cannot be regarded as a binding precedent.

9. Needless to say, the proposition canvassed by Mr. Ganesh neither invites a dispute nor calls for a debate. It is so the said proposition has been stated in Quinn v. Leathem (1901) AC 495 which has been followed in Ambica Quarry Works v. State of Gujarat and Ors. MANU/SC/0853/1988 : AIR 1987 SC 1073. But such is not the case here. First of all, in the earlier decision Section 5(2) was considered and a view has been expressed and, therefore, it cannot be said that a provision has not been referred to or not considered. Hence, it is a binding precedent.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2678-2679 and 5980-5981 of 2010

Decided On: 28.07.2016

ACC Ltd.Vs. State of Kerala

Hon'ble Judges/Coram:

Dipak Misra and Rohinton Fali Nariman, JJ.

Citation:(2016) 14 SCC 225

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Whether issue decided by larger bench is binding as precedent even though it is not referred by concerned bench?

 In this context, another submission deserves to be
noted. It is canvassed by the learned senior counsel for the
appellants that the issue of enhancement and scope of
enhancement was not referred to the Constitution Bench.
The reference order which has been quoted in V. Sriharan
(supra) has been brought to our notice to highlight the point
that in the absence of a reference by the concerned Bench,
the Constitution Bench could not have adverted to the said
aspect. The said submission is noted only to be rejected.
The larger Bench has framed the issues which deserve to be
answered and, as seen from the entire tenor of the
judgment, it felt that it is obliged to address the issue
regard being had to the controversy that arises in number
of cases. In fact, as is evincible, question Nos. (i) and (ii) of
paragraph 2.2 have been specifically posed in this manner.
We do not think that there is any impediment on the part
of the Constitution Bench to have traversed on the said
issues. In fact, in our view, the Constitution Bench has
correctly adverted to the same and clarified the legal
position and we are bound by it.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1531-1533 OF 2015

Vikas Yadav V State of U.P.

Citation: 2017 CRLJ 1111

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Whether it is permissible to distinguish ratio of case on very superficial ground?

 The Tribunal in the instant case sought to
distinguish the aforementioned case with the case in
hand, by placing reliance on another decision of the
Tribunal and holding that the Full Bench was concerned
with the cases of those candidates covered under Column
11(2)(i), whereas the case of the candidates in the
instant case was covered under Column 11(2)(ii), and
thus, the decision of the Full Bench has no bearing on
the facts of the case on hand. This reasoning of the
Tribunal cannot be sustained, as the Full Bench of the
Tribunal was clearly adjudicating the broader question of
whether the appointment of Extra Departmental Agents to
the post of Postman is by way of direct recruitment or by
way of promotion. The attempt to distinguish the ratio of
the Full Bench of the Tribunal on such a superficial
ground is akin to reading the decision of the Full Bench
like a Statute, which cannot be sustained.
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 90 OF 2015
Y. NAJITHAMOL & ORS.Vs.SOUMYA S.D. & ORS. 

Dated:August 12, 2016
Citation:(2016) 9 SCC 352

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Whether judgment can be read as statute divorced from facts of case?

 It is well settled that a judgment cannot be read like a Statute.
Construction of a judgment should be made in the light of the factual
matrix involved therein. What is more important is to see the issues
involved in a given case, and the context wherein the observations were
made by the Court while  deciding  the  case. Observation  made in a
judgment, it is trite, should not be read in isolation and out of context.
[See:  Goan  Real   Estate  and  Construction  Ltd.   v.   Union  of  India,
(2010) 5 SCC 388]: (2010 AIR SCW 2671)]. It is the  ratio of the
judgment, and not every observation made in the context of the facts of
a particular case under consideration of the court, which constitutes a
binding precedent. The Supreme Court in  P.S. Sathappan v. Andhra
Bank Ltd., AIR 2004 SC 5152 has held as follows:
"138.   While   analyzing   different   decisions   rendered   by   this   Court,   an
attempt has been made to read the judgments as should be read under the
rule of precedents. A decision, it is trite, should not be read as a statute.
139. A decision is an authority for the questions of law determined by it.
While applying the ratio, the court may not pick out a word or a sentence

from the judgment divorced from the context in which the said question
arose for consideration. A judgment as is well­known, must be read in its
entirety and the observations made therein should receive consideration in
the   light   of   the   questions   raised   before   it.   (See   Haryana   Financial
Corporation and Anr. v. Jagdamba Oil Mills and Anr., [2002] 1 SCR
621 : (AIR 2002 SC 834). Union of India and Ors. v. Dhanwanti Devi and
Ors. , (1996) 6 SCC 44 : (1996 AIR SCW 4020) Dr. Nalini Mahajan v.
Director  of  Income­tax  (Investigation)   and  Ors.,   [2002]   257   ITR  123
(Delhi) (2003 Tax LR 18 (Del) State of U.P. and Anr. v. Synthetics and
Chemicals Ltd. and Anr. , 1991 (4) SCC 139 , A­One Granites v. State of
U.P. and Ors., 2001 AIR SCW 848 and Bhavnagar University v. Palitana
Sugar Mill (P) Ltd. and Ors., (2003) 2 SCC 111 : (AIR 2003 SC 511)
140. Although, decisions are galore on this point, we may refer to a recent
one   in   State   of   Gujarat   and   Ors.   v.   Akhil   Gujarat   Pravasi   V.S.
Mahamandal and Ors., AIR 2004 SC 3894 wherein this Court held:
"...   It   is   trite   that   any   observation   made   during   the   course   of
reasoning  in a judgment  should  not  be read divorced  from the

context in which they were used."

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER)
NO. 968 of 2014

NIKHIL P GANDHI.
V
STATE OF GUJARAT & 2.
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2016

Citation: 2016 CRLJ4338 Guj

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When earlier decision will be binding in case of conflict between decisions of Co-ordinate Benches?

Question No.(V) : Whether the observation in para (13) of the judgment in Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341) that in the event of there being conflict, the decision of later Bench would bind only lays down that judgment later in point of time as explaining the earlier judgment would bind ?

 Answer : In the light of the decisions of the Hon'ble Supreme Court in the case of State of U.P. And Ors. Vs. Ajay Kumar Sharma and Anr. (supra) and New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (supra), we answer this question to the effect that, in case of conflict between the decisions of Co-ordinate Benches, it is not the later but the earlier one in point of time, which should be followed and applied by the Subordinate Courts to the facts and circumstances of a case before it, unless, of-

course, earlier decision is considered and explained in the later decision.

Bombay High Court

Shri Prakash Gobindram Ahuja vs Shri Ganesh Pandharinath Dhonde ... on 4 October, 2016

CORAM : S.C. DHARMADHIKARI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

PRONOUNCED ON : 4TH OCTOBER 2016.

Read full judgment here:click here

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WHAT IS PRECEDENTIAL VALUE OF INTERIM ORDER?

 A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides by reason of non- payment of salaries to the employees of a large number of public sector undertakings for several years, have no value as precedents. The interim directions were also clearly in exercise of extra-ordinary power under Article 142 of the Constitution. It is not possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High Court alleging human right violations and seeking a mandamus requiring the state, to provide him or them an allowance for meeting food, shelter, clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) and (II).

Supreme Court of India

State Of Assam vs Barak Upatyaka D.U. Karmachari ... on 17 March, 2009

Bench: R.V. Raveendran, Markandey Katju

Reportable

CIVIL APPEAL NO. 6492 of 2002

Citation: AIR 2009 SC 2249

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How to Understand Ratio Decidendi of Judgment?

 It further saddens us to see the manner in which
the decision in the case of Harshad Govardhan Sondagar
(supra) has been misinterpreted to create this
confusion. Random sentences have been picked up from
the judgment and used, without any attempt to
understand the true purport of the judgment in its
entirety.
27. It is a well settled position of law that a word or
sentence cannot be picked up from a judgment to
construe that it is the ratio decidendi on the relevant
aspect of the case. It is also a well settled position
of law that a judgment cannot be read as a statute and
interpreted and applied to fact situations. An eleven
Judge Bench of this Court in the case of H.H.
Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur
of Gwalior & Ors. v. Union of India7 held as under:
“It is difficult to regard a word, a clause or
a sentence occurring in a judgment of this
Court, divorced from its context, as
containing a full exposition of the law on a
question when the question did not even fall
to be answered in that judgment.”
The same view was reiterated by a Division Bench of
this Court in the case of Commissioner of Income Tax v.
Sun Engineering Works (P.) Ltd.8 Further, a three Judge
Bench of this Court in the case of Union of India v.
Dhanawanti Devi & Ors.9 held as under:
“9. 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
7 (1971) 1 SCC 85
8 (1992) 4 SCC 363
9 (1996) 6 SCC 44
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.
10. 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……”
 (emphasis laid by this Court)
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL/CIVIL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 52 OF 2016
(Arising out of SLP (Crl.) No.8060 of 2015)
VISHAL N. KALSARIA 
Vs.
BANK OF INDIA & ORS. 

Citation;(2016)3 SCC762
V. GOPALA GOWDA, J.
Dated;January 20,2016
Citation;(2016) 3 SCC762

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