Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Saji Koduvath, Advocate, Kottayam

Abstract:

No Binding Precedent if relevant statutory provision was Not considered; It Must be ‘Ratio Decidendi’ also.

Ratio Decidendi Is Binding Precedent: Mere Casual Expressions – Not of Much Avail.

Ratio decidendi
               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is statements of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
           •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧ Ratio Decidendi is declaration of the law in a speaking order.
            •➧ Ratio Decidendi is the Legal Principles Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution.
              •➧ What is binding is discernable Ratio and the Principle; not, Conclusion.
              •➧ A case is only an authority for what it decides, and not from what logically follows from it.
             •➧ It is important to Read and analyse Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment) alone has the force of law.
             •➧ For, the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what were the facts.

Precedents
              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ No Binding Precedent if a decision is without taking into account the statutory provision or if it is wrong in law.
              •➧The precedential value is attached only to orders which are preceded by a detailed judgment.

Obiter Dicta
              •➧ Obiter dictum is the passing expression or opinion in a judgement.
              •➧ The obiter dicta of the Supreme Court are taken with considerable weight.
              •➧ In India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction.

Per Incuriam
              •➧ ‘Per incuriam’ is used to denote findings out of ignorance of law.

Stare decisis
              •➧ Stare decisis is a legal doctrine that requires courts to follow precedents

Common law
              •Common law is the body of unwritten law, based upon precedents, the previous decisions.
              •➧ Common law delved precedents; whereas the civil law system dwelled upon codified system of law.
              •➧ The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply.

Article 141 – Supreme Court Decisions Bind on all Courts

Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. What is binding under Article 141 is the ratio decidendi of the judgment.

Decisions of High Courts bind all courts within their respective jurisdiction. But, rulings of other High Courts have only persuasive value. These principles are based on judicial discipline.

What is binding is ‘Ratio and the Principle’; not, Conclusion

Ratio decidendi literally means “reason for deciding”.

In B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480, it was observed that a decision is binding not because of its (final) conclusion but with regard to its ratio and the principle laid down therein. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Stare Decisis

The Latin term, Stare decisis, means – “to stand by that which is decided.” It is accepted as a legal doctrine that requires courts to follow precedents, the previous decisions. The doctrine of stare decisis is based on public policy. The basis of Article 141 of the Constitution is the doctrine of stare decisis.

In Raj Narain Pandey v. Sant Prasad Tewari (1973 (2) SCR 835 , H.R. Khanna, J. observed as under:

“In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce and element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties v. Poole Corpn., there is well established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.” (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

The principles of `Stare Decisis’ is explained in Halsbury’s Laws of England as under:

“Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake”. (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

This doctrine is described in Corpus Juris Secundum as under:

“Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.” (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

In Mishri Lal v. Dhirendra Nath, after quoting Halsbury’s Laws of England and Corpus Juris Secundum it is pointed out as under:

“Be it noted however that Corpus Juris Secundum, adds a rider that “previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.”

No Binding Precedent if relevant statutory provision was Not considered; It Must be ‘Ratio Decidendi’ also

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

“It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

“54. 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.”

In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, wherein after relying on British authorities it was held:

“13….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 it. On this topic, this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495]:
“Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that 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 governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.”

The Supreme Court, in Krishena Kumar v. Union of India, 1990 (4) SCC 207, said as under::

“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 [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)]. 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.”

Decision without Argument, Crucial words, Citation of Authority: Not binding

In Gerard vs. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA), it was observed that a decision which is rendered without argument, without reference to the crucial words of the rule, and without any citation of authority is not binding and need not be followed. The Court further observed that precedents sub silentio and without argument are of no moment. (Referred to in: Bindu K.B. vs. State of Kerala, 2014 (4) KHC 772.)

‘PER INCURIAM’ and Decision of Co- equal Bench

Per Incuriam If Not Obeyed Provision In A Statute, Earlieer Judgment

“Incuria” literally means “carelessness”. Per Incuriam gives the idea – ‘out of ignorance’.

Black’s Dictionary, explains per incuriam as under:

“A judgment per incuriam is one which has been rendered inadvertently.”

A Judgment rendered in total ignorance of law or earlier decision alone constitute the principles of per incurium; erroneous appreciation or misconstruction of a binding precedent is not a per incuriam decision. Total ignorance of earlier judgments of co-equal bench also renders a decision per incuriam. Such judgments will not be treated as precedent. [See: State of State of M.P. Vs. Narmada Bachao Andolan, (2011) 7 SCC 639, Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356, Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458]

Sundeep Kumar Bafna v. State of Maharashtra [2014] 16 SCC 623, it is observed that the Latin expression “per incuriam” means through inadvertence. A decision can be said generally to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or when it has acted in ignorance of a decision of the High Court or the Supreme Court. (Punjab Land Devl., & Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court : (1990) 3 SCC 682; Commissioner of Income Tax v. B.R. Constructions, 1992 SCC OnLine AP 121).

Halsbury’s Laws of England, Fourth Edition, para 578 at page 297 states the rule of per incuriam as follows:—ignorance of the terms of a statute or rule having statutory force.”

Larger Strength Is Binding On Any Subsequent Bench Of Lesser Or Co-Equal Strength Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673), Referred in P.A.Thomas v.Authority Under the Minimum Wages Act 2008 1 KHC 800 ; 2008 1 KLT 858 (S.Siri Jagan,J.)

Subsequent Bench Would Follow Earlier Co-Ordinate Bench
Judicial Discipline-Binding Precedent-Except in compelling circumstances, such as where order of earlier Bench is per incuriam, subsequent Bench would follow earlier co-ordinate Bench. (Para 23) Jai Singh v. Municipal Corporation of Delhi 2010 9 SCC 385 (B.Sudershan Reddy and Surinder Singh Nijjar, JJ.)

Kerala High Court View: Two benches of equal strength of the APEX COURT: Later Decision will Prevail

The Full Bench of the Kerala High Court, in a reference, in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458], had to decide – how to deal with conflicting views in the decisions of two benches of equal strength of the Apex Court. It was held that in case of conflicting decisions taken in the two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one. It was pointed out that

a decision of the Apex Court on a declaration of law is binding on all High Courts and Subordinate courts under Article 141 of the Constitution of India and
it may not be proper for the High Courts or Subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam.

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.) observing as under:

“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
- “We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. After an elaborate precedential survey, following propositions have been laid down:
“The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:-
- (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
- (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
- (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
- (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
- (v) 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 Art.141 of the Constitution.
- (vi) 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 (Salmond on Jurisprudence 12th Edn. p.153).
- (vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
- (viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam”.
Hence, it is now indubitable that the decision rendered by the Apex Court later in point of time will prevail over the earlier one.”

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is also Referred to in:

Saiby v. Mary, 2025-5 KHC 482: 2025-4 KLT 933 (Easwaran S., J.);
M/s Asm Traxim Pvt Ltd v. Union Of India, 2025-11 ADJ 500 ; 2025-5 AllLJ 100
Munni Lal v. Mohd. Rafik Kidwai, 2023-7 ADJ 74 ; 2023-AHC 124434 ; 2023-160 AllLR 658 ; 2023-2 ARC 432 ; 2023-4 AWC 3629
XXXXXXXXXX – v. State of Kerala, 2022-5 KLT 636 (Kauser Edapagath, J.)

Daisy M.P. v. State of Kerala, 2020-3 KHC 115 ; 2020-2 KLT 639 (Sunil Thomas, J.)
Smitha v. V. Krishnan, 2017 AIR(Ker) 87; 2017-1 KHC 81; 2017-1 KLT 892 (K.T. Sankaran, P.D. Rajan and P. Ubaid, JJ.)
Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018-1 KHC 412 ; 2018-2 KLT 553)
Papaiah Alias S.R. Papi Reddy v. P. Nagaraja Reddy, 2019 3 AIR(Kar)(R) 274
Rosamma Joseph v. State of Kerala,2014 1 KLT(SN) 70 ; 2014 KHC 154 (K. Ramakrishnan, J.)
St. Joseph’s Hospital Trust v. The Kerala University of Health Sciences, 2012-3 KHC(SN) 26 ; 2012-4 KLT 444 (K.M. Joseph & K. Harilal, JJ.)
Saramma Paulose v. Lilly, Decided On: 03-10-2011 (Thomas P. Joseph. J)

In Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) referred Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], laid down the history of this decision as under:

“2. Ext. B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. ……The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors. v. Shamsher Singh, 2009 (3) SCC 687, in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
3. The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai, AIR 1947 PC 15, wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors., AIR 1968 SC 947. It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018 (2) KLT 553. Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another, AIR 2005 SC 752, that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
- “The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”
4. It has been further reiterated by a three Judge Bench of the Apex Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86, by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-equal Bench on a later point of time.
5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed (M. Natarajan v. State (2008) 8 SCC 413). It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another Constitution Bench of the Apex Court in Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1] had reiterated the legal position by explaining the rule of per incuriam, relevancy and binding precedent of ratio decidendi laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding obiter dicta. The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, and also the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682.”

Is the Full Bench Decision “Per Incuriam”?Does it apply to ‘Co-equal Benches’?

Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) distinguished (?) Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] observing as under:

“6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra), a Division Bench of this Court in Sampath S. Pawar v. Ibrahim, 2013 (3) KLT 722, had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB).”
In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam decis”. In order to avoid the mischief, the “ratio decidendi” settled on a particular legal issue by the earlier larger or co-equal Bench must be referred in relation to that particular “ratio decidendi”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in Central Board of Dawoodi Bohra Community’s case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “per incuriam decis”. The decision rendered by the Division Bench in Sampath’s case (supra) by following the Full Bench decision in Raman Gopi’s case (supra) without noticing the decision of the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra) also would stand per incuriam decis. So also, the decision rendered by a Single Bench of this Court in Hameed v. State of Kerala, 2008 (1) KLT 534, by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) cannot be held good law.
7. The observation made by the Apex Court in Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1] assumes importance at this juncture. The relevant portion is extracted below for reference:
- “There have been several instances of different Benches of the High Court not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.”
8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (supra), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (supra), hence cannot be held to have binding precedent.”

The View: in Co-Equal Bench, Latest Judgment should Prevail – Fallacious?

It is held in Bindu v. State of Kerala, 2014 4 KHC 772 ; 2015 1 KLT(SN) 5 (Dama Seshadri Naidu, J.) that the school of thought — in case of conflict between co-equal benches, the latest judgment should prevail — is fallacious. Still, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds. The court referred to the following decisions:

Andhra Pradesh S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi and others, 2005 (1) ALT 412 (DB)
Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81

CONFLICTING DECISIONS OF CO-ORDINATE 2 Judge BENCHES – REFER THE MATTER TO A BENCH OF THREE HON’BLE JUDGES. Hardeep Singh v. State of Punjab 2009 AIR(SC) 483 ; 2009-16 SCC 785 (C.K. Thakker and D.K. Jain, JJ.)

Co-Ordinate Bench Decisions also Should be Referred to a Larger Bench If Difference

In Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767, it is held as under:

“8. .. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. ….” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.)

In Sundarjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, AIR 1991 SC 1893, it is observed as under:

“One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.)

In State Through Central Bureau Of Investigation v. Hemendhra Reddy, 2023-16 SCC 779 (Surya Kant, J.B. Pardiwala, JJ.), it is said as under:

81. We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.”

The Apex court referred Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1

In Mahadeolal Kanodia v. Administrator General of W.B. [AIR 1960 SC 936 : (1960) 3 SCR 578] our Apex Court pointed out as unser:

“19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions.

CONTRARY TO THE LAW DECLARED BY THE APEX COURT; Pareed Pillai v. Oriental Insurance Co. Ltd., 2019 AIR Ker 9 ; 2018 4 KLT 792 (Hrishikesh Roy, P.R.Ramachandra Menon, A.K.Jayasankaran Nambiar, Anil K.Narendran, Devan Ramachandran, JJ.)

HAD NOT TAKEN NOTE OF A BINDING CONSTITUTION BENCH DECISION; BUT FOLLOWED A LATER DECISION. Kottukal Konam Hindu Nadar Mahajana Sanm v. P.Kunjukrishnan Nadar AS 615/2000 Decided On : 09-04-2010

EXCEPT IN COMPELLING CIRCUMSTANCES EARLIER BENCH CAN BE SAID TO BE PER INCURIAM

Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier oordinate bench.

SALMOND: Lower Court Can Pick And Choose: Salmond on Jurisprudence a lower court can pick and choose between two conflicting decisions of the same court on the same question of law. P.A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.). Read as under:

“10. Salmond on Jurisprudence deals with the question of choosing between conflicting decisions of the same court by a subordinate court as follows:

“(4) Inconsistency with earlier decision of higher court. it is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
(5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appeal and Divisional Court and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported-or are not reported-it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict wit the old, it is given per incuriam and is not binding on a later court.
Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of it own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.
Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

Binding Precedent- In Nutshell

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844]

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537]

A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195]

RATIO DECIDENDI is Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707).

For Binding Precedent, finding must be ‘RATIO DECIDENDI’ (necessary to the decision); and Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDI is binding on other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519]

What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC)

The doctrine of precedent mandates that an exposition of law must be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289].

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties; precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988].

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

Ratio Decidendi Is Binding Precedent: Casual Words, Not of Much Avail

In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, it is pointed out as under:

“Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
(Quoted in: State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676;
Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627;
Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707)

A Full Bench of the Allahabad HighmCourt, in Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

“A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

Allen in ‘Law in the Making’ said as under:

“Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

A deliberate decision after hearing on a question constitute a precedent

A three Judge Bench of our Apex Court, in Union of India v. Dhanawanti Devi, (1996) 6 SCC 44, 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 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……” (Quoted in: Vishal N. Kalsaria v. Bank of India, 2016-3 SCC 762)

Common Law Delves Precedents; Civil Law Dwells upon Codified Law

Common law is the body of customary law, based upon previous judicial decisions. The common-law courts in England, emerged in the Middle Ages, applied this system in the adjudication of disputes, in the King’s Court. Common law delves precedents. The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply. Civil law system dwells upon codified system of law. Judicial precedents are also looked to see the interpretation of law and legal principles.

Questions which are Essentially Questions of Fact, Cannot be Cited as Precedents

In State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489, it is laid down as under:

“A decision is available as a precedent only if it decides a question of law.”

In Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195, it is held as under:

“Learned counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts.”

A case is only an authority for what it decides, and not from what logically follows from it (Ram Krishan Ram Nath v. Janpad Sabha, AIR 1967 SC 1073)

Ratio Decidendi – Basis of Reasons and Principles Underlying a Decision

It is the discernable ratio decidendi which forms a precedent and not the final order in the judgment (Sanjay Singh v. Uttar Pradesh PSC, Allahabad, 2007-3 SCC 720).

Decision Applicable Only to Facts Cannot be a Binding Precedent

The basis of reasons and principles underlying a decision is ratio decidendi. It is distinct from the ultimate relief granted in a given case. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent.

Essence in a Decision is its Ratio and Not Every Observation

The Supreme Court (B.V. Nagarathna, J.)observed in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

“22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

Law laid down by SC – if only there is a Speaking Order; Not by Dismissal In Limine

It was added, in Secundrabad Club v. CIT – V, 17-08- 2023, as under:

“23. Another important principle to be borne in mind is that declaration of the law by the Supreme Court can be said to have been made only when it is contained in a speaking order, either expressly or by necessary implication and not by dismissal in limine.”

Law ‘Declared’, and ‘found or made’

While speaking about judicial precedents, in DTC v. DTC Mazdoor Congress Union, AIR 1991 SC 101, Mukherji, CJ., laid down that the expression ‘declared’ is wider than the words ‘found or made’. The latter expression involves the process, while the former expresses the result. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Ratio Decidendi alone is Binding Precedent; It is statements of principles of law

The Supreme Court observed further in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under

“13. It is a settled position of law that only the ratio decidendi of a judgment is binding as a precedent.”

B.V. Nagarathna, J. held (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“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 fact 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 precedent, ingredient (ii) is the vital element in the decision. This is the ratio decidendi. It is not everything said by a judge when giving a 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.”

Statement of Law Applied to the Legal Problems Raised

In the leading case of Qualcast (Wolverhampton) Ltd. vs. Haynes, 1959 AC 743, 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 elements in the decision are not precedents. A judgment is not binding (except directly on the parties to the lis themselves), nor are the findings of fact. 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. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Legal Principles Guiding the Decision Constitute ‘Ratio Decidendi’ or Binding Precedent

B.V. Nagarathna, J. added (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“The legal principles guiding the decision in a case is the basis for a binding precedent for a subsequent case, apart from being a decision which binds the parties to the case. Thus, the principle underlying the decision would be binding as a precedent for a subsequent case. Therefore, while applying a decision to a later case, the court dealing with it has to carefully ascertain the principle laid down in the previous decision. A decision in a case takes its flavour from the facts of the case and the question of law involved and decided.However, a decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141, vide State of Uttar Pradesh vs. Synthetics and Chemicals Ltd. (1991) 4 SCC.”

Binding Precedent Helps in Promoting Certainty and Consistency

The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of daily affairs.

Read Entire Judgment – to discern reasoning of a judgment

B.V. Nagarathna, J. further observed (in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter. The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter. Thus, an order made merely to dispose of the case cannot have the value or effect of a binding precedent.
19. What is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance.”

Words in a Judgment are Not to be Interpreted as a Statute

B.V. Nagarathna, J. continued (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute.

Words in a Judgment – Rendered Contextually; Not be Taken Literally

B.V. Nagarathna, J. pointed out (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally.”

No implication – a decision is an authority for what decided

“Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what is specifically decides and not what can logically be deduced therefrom.”

Salmond Bifurcates Precedents – Authoritative and persuasive precedents

Authoritative precedents are binding on courts and a judge is bound to follow it. Thus it will be a legal sources of law. Persuasive precedents have persuasive value alone. A judge need not follow it if finds reasons for the same; nevertheless, he cannot ignore it. Judgments of foreign courts, decisions of the Privy Council etc. are examples for the same.

Obiter Dicta

Obiter dictum is the passing expression or opinion, or something said by the way, in a judgement, which is not essential to the decision. As laid down in Halsbury, Vol 22, p. 797, in England obiter dicta are not binding on any court. But, in India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction. The obiter dicta of the Supreme Court are taken with considerable weight. ‘Normally, even an obiter dictum is expected to be obeyed and followed (Sarwan Singh Lamba v. Union of India, AIR 1995 SC 1729).

Obiter Dictum of the Supreme Court is binding under Article 141

B.V. Nagarathna, J. further observed (in Secundrabad Club v. CIT – V, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

“20. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.”

Per Incuriam

‘Per incuriam’ is used to denote judgments or findings that are delivered out of ignorance of some statute or rule.

It is pointed out in Govt. of Andhra Pradesh v. B. Satyanarayana Rao, AIR 2000 SC 1729: (2000) 4 SCC 262 as under:

“Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.”

In Banwari v. Haryana State Industrial and Infrastructure Development Corporation Limited (HSIIDC), Neutral Citation: 2024 INSC 951, B.R. Gavai, K.V. Viswanathan, JJ., held as under:

20. In this respect, we may gainfully refer to the observations of a Constitution Bench of this Court in the case of National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680. The relevant paragraphs of the judgment read as under:
- “27. We are compelled to state here that in Munna Lal Jain , the three-Judge Bench should have been guided by the principle stated in Reshma Kumari which has concurred with the view expressed in Sarla Verma or in case of disagreement, it should have been well advised to refer the case to a larger Bench. We say so, as we have already expressed the opinion that the dicta laid down in Reshma Kumari being earlier in point of time would be a binding precedent and not the decision in Rajesh.
- 28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down the principle that 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. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh case was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari but had been guided by Santosh Devi . We have no hesitation that it is not a binding precedent on the co-equal Bench.”
It can thus be seen that, this Court in unequivocal terms has held that an earlier decision of a Bench of particular strength would be binding on the subsequent Benches of this Court having the same or lesser number of judges.”

In Sundeep Kumar Bafna v. State of Maharashtra, AIR 2014 SC 1745, 2014 (16) SCC 623, it is held that a later judgment will not hold good if it had not taken note of an earlier judgment rendered by a Bench of co-equal strength; and the earlier judgment prevails, and it cannot be seen as per incuriam. The Apex Court said as under:

“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.”

A “collateral or incidental” finding would not ordinarily be res judicata.

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

1 Comment

srinivasanadvocate1970 says:

August 9, 2024 at 9:38 am

A fundamental principle of legal precedent!

Ratio Decidendi (Latin for “the reason for the decision”) refers to the core reasoning or principle underlying a court’s judgment. It is the essential aspect of a judicial decision that sets a precedent for future cases.

The key points to note are:

Ratio Decidendi is the binding part of a judgment, creating a precedent. 2. It is the underlying reason or principle that supports the court’s decision. 3. Only the Ratio Decidendi is binding on lower courts, not the entire judgment. 4. The final order or outcome of the case is not necessarily a precedent, but rather the reasoning behind it.

In other words, when a higher court decides a case, its Ratio Decidendi becomes a precedent that lower courts must follow in similar cases. However, the specific final order or outcome of the case may not be a precedent, as it is tied to the unique facts and circumstances of that case.

This distinction is crucial in understanding how legal precedents work and how courts apply them in subsequent cases.

LikeLike

Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Published by sajikoduvath

1 Comment

Leave a Comment Cancel reply

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Share this:

Related

Published by sajikoduvath

1 Comment

Leave a Comment Cancel reply