Typically, there are mainly four sources of law i.e. i) Legislation, ii) Customs, iii) Conventional Law and iv) Precedents. Out of all four sources, “the Precedent” is considered as the leading source of law.
A Judicial Precedent simply refers to a prior judgement of a Court of Law that the court cites as an authority for deciding a similar set of facts in future. In the simpler words of Robert Keeton “A judicial precedent refers to a judicial decision to which authority has in some measure been attached.”
For example, in a certain case facts A, B and C exist; and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X. Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist, the conclusion must be X.
These Judicial Precedents can be mainly divided into two categories:
AUTHORITATIVE PRECEDENTS –
These precedents are usually to be followed by the courts without diverging from the previous judgements given by the superior courts. These are also referred as RATIO DECIDENDI.
These decisions just have a persuasive value and carry no binding power or obligation with them. These may be referred as OBITER DICTUM.
THE INDIAN CONTEXT
Though this doctrine of precedents is a significant mechanism going in the English Law since the medieval ages when there were no parliaments to frame legislations, this doctrine of precedents has also made a notable contribution to the evolvement and advancement of the Indian Legal System.
In the earlier times or ancient India, the doctrine was not followed but due to the long history of the colonial rule in India, the country’s legal and judicial system has also relied a lot on the English law structure and adopting the common law system through the precedents is also not an exception. The major transformation came through the Regulating Act of 1773 which led to the development a Supreme Court in the Bengal Presidency and the development of High Courts in India in the year 1861. This led to formation of a hierarchy of courts in India. Later on through the Government of India Act,1935, a federal Court was formed where section 212 of the Act clearly mentioned and ensured that the federal court decisions are absolute on all the courts situated within the territory of India.
Post-Independence, Constitution of India was adopted, where Article 141 of the Constitution promulgated that the law formed by the Supreme Court of India shall be absolute on all the courts.
ARTICLE 141 OF THE CONSTITUTION
The law enunciated by the Supreme Court of India is obligatory and absolute. If the majority of the judges of the Supreme Court express their view in a certain case on a question or proportion of law, then that view or opinion of the majority would be considered as the law declared by the Supreme Court and hence shall be binding on all the courts within India.
The correctness of the law declared by the Court cannot be doubted on the grounds that there was another view which was not considered by the court or was never urged. Under Article 141, the decisions given by the Supreme Court even in its advisory jurisdiction act as binding on all the courts within the territory of India.
The general rules of Ratio Decidendi and Obiter Dicta also come within the ambit of Article 141.
As per the hierarchy rule a judicial precedent made by the Supreme Court must be followed by every other court within the territory of India which is regulated as per Article 141. This is also known as ‘Doctrine of Stare Decisis’.
The below mentioned are some more aspects which help us to grow and evolve our law with changes and new developments.
When a decision is given in ignorance or without considering the particular aspect of law or questions relevant to matter or existing law, it is considered as sub silentio and these decisions are not binding.
DISTINGUISHING A CASE
The facts may vary and differ from case to case and when these facts are materially different from the previous case, a different principle needs to be applied to suit the circumstances. Thus, then the courts are allowed to decide the matter as per the facts of the case in hand without overturning a precedent.
OVERRULING A CASE
A higher court is well allowed to overrule a judgement of a lower court and make a new set of rules of law when it thinks that the principle of law used in a decision is not correct.
Salmond defines ratio decidendi as “A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed as the ratio decidendi.” In simpler and clearer terms, a ratio decidendi describes the principal of the case or the reason of which the judge decides the case or the rule of law upon which the decision is founded.
The Supreme Court held in Dalbir Singh v State of Punjab that every decision is supposed to have three basic ingredients i.e.
a) Both direct and inferential findings of the material facts related to the case
b) The principal of law applicable to the question of law and legal problems disclosed by the facts of the case
c) The judgement based on a) and b)
The ingredient b) is the most essential and vital for the judgement and it is indeed the ratio decidendi. And this is the only binding part of the judgement.
NEED FOR THE RATIO DECIDENDI
Salmond also stated that the concrete decision may be the binding between the parties of the matter but it is the abstract ratio which has the force of law. This is because that the court while deciding the legal principals and legal problems must follow either the already existing principle or exercise its authority to formulate some general rule and then act upon it.
EFFECT OF RATIO DECIDENDI
ON GENERAL CASES
ON THE PARTIES TO THE SUIT
AGAINST PERSONS NOT PARTIES TO THE SUIT
TYPES OF RATIO DECIDENDI
DESCRIPTIVE RATIO DECIDENDI
It may be defined as the reason or rationale which helped the court to arrive at the decision in the given case. It is prospective as in it is the original ratio which may even be used in the future cases as an aid.
PRESCRIPTIVE RATIO DECIDENDI
It is retrospective as it the rationale being used in the current case through the precedent or descriptive ratio formed previously. A descriptive ratio is altered through a certain level of generality to form the prescriptive ratio due to the fact that facts of all the cases are not similar and thus the legal principle also needs to be adjusted according to it.
DETERMINING RATIO DECIDENDI
One of the most influential commentators on the concept of ratio decidendi has been Goodhart. According to Goodhart the essence of the ratio lies in the deciding judge who decides what facts are material or immaterial. Further the data related to individual, kind, time and quantity are all not presumed until there is any right reason or necessary to believe. Instead what needs to be found out for ratio is what necessary step the judge needs to take to decide a case and what is the reason for that.
In Mohandas v A.N. Sattanathan, the S.C. defined ‘Obiter Dicta’ as the opinion expressed by the judge in the court in the judgement which does not have any relevance in the decision. In contrast with the ‘Ratio’, it is not an important constituent to arrive at a decision but is just used to describe the circumstances. They are just incidental remarks made by the court while dealing with the actual conflict between parties. A general example of obiter dicta may be a rule of law stated merely by way of analogy or illustration, or a suggested rule upon which the decision is not finally rested. Obiter Dicta can also be aid to be all that is said by the court which may go beyond the requirements of that certain case and which states or lay down a rule which is irrelevant to the case or purpose in hand.
To simplify the things the obiter dicta can also be divided into
DELIBERATE EXPRESSIONS OF OPINION
These opinions are given after due consideration upon a point raised and argued before the court. The judges can give a decision contrary to even the deliberate expressions of opinion but still they have some persuasive value on the parties or in the following cases and carry a lot of weight with them.
CASUAL EXPRESSION OF OPINION
These are just casual expressions given by the court upon a point which hasn’t been even brought before the court. Though these are expected to be respected, they do not have any major value and may even be disregarded by the judges in subsequent case before whom the point has been brought up and argued.
However, in general circumstances even the obiter dicta mentioned in the judgement is expected to be respected as per the reputation of the judge, the eminence of the court, and the circumstances in which it came to be pronounced. Moreover, the obiter dicta of the Supreme Court’s decision carry considerable weightage with them, though it also depends on the nature of obiter dictum given by the court.
ADVANTAGES OF “OBITER DICTA”
Helps to point out the defect in the legal or the judicial system.
Leads to the growth or reformation of law.
Provides suggestions to the question of law yet not discussed by the courts.
Judges are well versed with the law and their opinions or findings carry weight with government.
THE DISTINGUISHING FACTOR
In Director of Settlements, A.P. v. M.R. Apparao, the Hon'ble Apex Court has clearly defined and explained the difference between the two with respect to Article 141 of the constitution where it stated that the law stated by the Supreme Court shall be binding on all the Courts within the territory. This article empowers the Court to make and declare the law. The court also held that the observations 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 on the courts is the ratio of the decision and not any finding of facts. This is a principle found upon a reading of a judgment and in the light of the questions raised before the Court that forms the ratio and not any word or sentence. This is where the court tries to frame a general rule of law and answer the question of law for the cases to come and this also forms the binding part of the judgement.
While an 'obiter dictum' is distinguished from a ratio decidendi is in that obiter dictum is just an observation by the 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 does not have a binding precedent as the observation might be considered unnecessary for the decision pronounced. But even though an obiter may not have a bind effect as a precedent, it cannot be denied that it is still of considerable weight.
Precedents can be said to be of lot of relevance in the legal field as they not help in the present case but also prove to be useful in the upcoming cases, thus reducing the burden on the courts to much extent. It also helps to understand the rationale or crux behind the rule of law and the legal principle than just blindly applying it.
In a nutshell, it can be concluded that obiter dicta refer to the opinion or observations made by the judge regarding the case but one which not involve the point in hand and not essential for the final decision to be made. While ratio decidendi can said to be principles of law formulated answered deciding the problem or legal matter of the case which then go on to become precedent for the cases to come.
It is only the ratio decidendi which has the precedent value on the subsequent cases while the obiter dicta at best only has a persuasive effect and may be well disregarded by the judge later on seeing the facts of the case in hand.
Glanville Williams Learning The Law, 16th Edition
1st Year Law Student
Dr. Ram Manohar Lohiya National Law University, Lucknow