Bommai V. Union of India , the nine judges bench of the Supreme Court unanimously held that secularism is one of the basic structures of the constitution of India. Justice P. Sawant and Justice Kuldeep Singh observed that social pluralism is one of the basic structures. While Justice K. Ramaswamy observed that socialism, social justice and fraternity are included in the basic structure of the constitution.
The observations of the learned judges are obiter dicta as they are not directly in issue in the instant case. State of Madhya Pradesh AIR SC held that obiter dicta is a mere observation or remark made by the Court, by way of aid, while deciding the actual issue before it. At times while referring to certain hypothetical questions or some observations made on the broader aspect of law by the Judge or certain questions of facts which the judges or the other side counsel may think has not arisen may be referred discussed and stated in the Courtroom.
In such a scenario not all can form the essence or the ratio decidendi of the judgment. Thus every passing expression of a Judge, however eminent or a casual remark made while deviating from answering the actual issues pending before the Court cannot be treated, as ex cathedra statement, having the weight of an authority.
Union Of India AIR SC the Apex Court while stating about the relevancy of obiter dicta held that it is difficult to regard a word, clause or an expression occurring in a judgment as the full exposition of law even if it is not answering the direc t questions of law to the case in hand. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties.
But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues. The ratio must be derived from disputes of law, not disputes of fact. Rations will not come from cases where the parties only disagree on the facts. To constitute as the ratio, it must first be argued in court. A point of law that will become precedent should have the opportunity to be argued by both parties in court, or the law will go without the benefit of counter arguments and fine-tuning.
This rule was first proposed in the old case R v Warner 1 Keb 66 at "[T]he presidents … sub silentio without argument, are of no moment". It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions.
But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. It does not form part of the ratio decidendi of the decision.
It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so. The facts of the precedent case shape how narrow or wide the ratio should be applied to future cases.
The less facts and the less specific the facts, the broader the application of the ratio. Certainly, it could be expected that the approach adopted in Ebner [83] and Clenae would be adapted to the circumstances of this case. 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.
To constitute as the ratio, the majority of judges must agree where there are multiple judges. That decision is naturally entitled to the greatest respect. It is of its nature a most persuasive precedent, but it is not a precedent which is binding upon this Court. It was not a decision given by Owen J when sitting as a member of a court in the framework of the appellate structure of which this Court is part. A decision of a justice of the High Court sitting at first instance is of course of the greatest persuasive authority for this Court, but this Court is not bound to follow it, and since the decision is challenged, it becomes necessary to decide whether the construction placed upon the agreement by Owen J was the correct one.
Nor am I bound by a decision of the High Court constituted by a single justice cf Bone v Commissioner of Stamp Duties [] 2 NSWLR , at , , or by a decision of the House of Lords, although in either case such a decision is also entitled to great weight and respect.
In Federation Insurance Limited V. It is not strictly necessary for this Court now to resolve the controversy as to what Deaves actually did decide. If it matters, we agree with the assessment made by McHugh J. Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment … That is not to say, however, that a dissenting judgment may not deserve respectful consideration.
A dissenting judge will often see his or her judgment as an appeal to the brooding spirit of the law, waiting for judges in future cases to discover its wisdom.
Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question.
Her reasoning therefore forms no part of the ratio decidendi of that case. Detention and criminal punishment: The Commonwealth argued that the broad statements in Chu Kheng Lim v Minister for Immigration , about the exclusive judicial role in imposing involuntary detention in the context of criminal punishment, were not endorsed by a majority of the Court in that case. They were not, therefore, part of the ratio decidendi of that case. Whilst a decision of a single justice of the High Court is deserving of close and respectful consideration, I am not bound by the observations quoted above.
When judges have different reasons for their decision, find essential areas of agreement. Justice Kirby gives us this advice in his speech, Precedent — Report on Australia:. Determining the ratio decidendi of a judicial decision becomes a complex task when multiple concurring reasons are published by several judges in a single case.
In such a case, the ratio must be drawn from the essential areas of agreement found within the reasons of the judges in the majority. So if judge A decides for the plaintiff for reasons x, y, and z, and judge B decides for the plaintiff for reasons p, q, and x, and if judge C decides for the defendant, then the ratio decidendi is x, the reason and the only reason shared by a majority of judges.
As all of the Justices concurred in the order of the Court allowing the appeal in that case, the reasoning of none could be discarded. As none of the Justices expressly concurred in the reasoning of another, the analysis depends upon a comparison of the reasons which each gave. Barwick C. Authority makes plain that it is not permissible to construct a ratio decidendi by the aggregation of various elements of separate reasons, still less to extract an element from a dissenting judgment and combine it with an element from a majority judgment in an attempt to create a majority in favour of that element.
Parity of reasoning dictates that, where a majority of the Court of Criminal Appeal has decided that there has been a miscarriage of justice, it is not permissible to construct a further decision by a majority of that Court that there has been "no substantial miscarriage of justice" by aggregating the decision of one member of the Court to that effect with the decision of another member of the Court who was not persuaded, at the point of the anterior question, that there had been a miscarriage of justice.
In such circumstances, a majority of the Court has decided that there has been a miscarriage of justice, and it follows that the appeal to that Court must be allowed. Where the material facts are the same, judgments may still be binding on lower courts even if there was no ratio, providing that the facts are the similar. But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents.
Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided 59 Dickenson's Arcade Pty. Commissioner of Business Franchises Vict. But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided?
It cannot mean that a court bound by that decision is bound only by the precise facts of the case. Stare decisis and res judicata are different concepts. Midland Silicones Ltd. When the ratio cannot be determined, a court may not be bound. When any tribunal is bound by the judgment of another court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear … what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding.
At first instance, this seems as if it conflicts with the last point However, the court may not be bound by the ratio but may still be bound by the precedent. Not all cases have a ratio decidendi. Sometimes disagreements will be resolved by dialogue, one member ending up convinced by another to take a different view; sometimes not. Where disagreements are not resolved, the law supplies a decision-making rule which allows the court to produce the order that is necessary for its institutional duty to be fulfilled.
The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time.
The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi. If the case is in the High Court's appellate jurisdiction and there is an equal division of opinion, the decision appealed from is left to stand. If there is an equal division in the High Court's original jurisdiction, the opinion of the Chief Justice or Senior Justice prevails.
In each of those circumstances of equally divided opinion, the applicable decision-making rule produces a resolution of the case at hand. In neither of those circumstances does application of the rule produce a decision which necessarily constitutes a binding precedent. When the division in opinion in the High Court is not equal, the decision-making rule is that "the question shall be decided according to the decision of the majority".
That decision-making rule produces a resolution of the case at hand notwithstanding that aggregation of the reasons for decision of members of the majority can sometimes fail to yield a ratio decidendi. Unstated assumptions do not constitute the ratio. However, not all sentences in a judgment fall under either ratio decidendi or obiter dictum.
The book, Laying Down the Law writes:. Frequently during the course of a judgment a judge will restate and discuss proposition of law from previous cases. Thus, obiter dicta are statements made during the course of a judgment that do not fall under the other categories, such as the ratio, the orders,[39] the headnote, the restatements of law, etc.
Generally, obiter dictum is not binding. Therefore, all obiter that is not from the high court, is not binding. The case law starts at Bole v Horton In my view, it means that the statements made in obiter should be consciously considered, rather than immediately ignored. I do not think that a judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question; but when a judge has thought it necessary for the purpose of the case to make a deliberate examination of the practice of his Court, and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case.
I think that such a statement if cited as an authority is entitled to great weight, though of course not bind on is as a decision. Obita dicta have different degrees of weight. On the light end, there are simple passing remarks and on the heavy end, there are statements that have been fully argued, as if it were the ratio.
A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.
Also, some statements made in dicta are so influential that it in effect becomes ratio. Historically, obiter dictum has never been binding. But, contrary to the Court of Appeal's perception, the statements did not bear only "indirectly" on the matter: they were seriously considered. And, also contrary to the Court of Appeal's perception… it was shared by the entire majority… [That] is not a step which an intermediate court of appeal should take in the face of long-established authority and seriously considered dicta of a majority of this Court.
They must be rejected. The authors analysed a large amount of cases on the effect of dicta by the High Court on the lower courts.
There is a distinction between all dicta and seriously considered dicta. The principle thus elucidated is neither long-established by authority nor the result, I think, of seriously considered dicta of a majority of the High Court. Of course, these are just suggestions and can subsequently result in you misidentifying the ratio. Journal articles on the particular precedent. Law blogs, such as www.
Case summary books. For example, In the case Rogers v Whitaker , paragraph 4 has been cited times. See the screenshot below:. However, for in-text referencing, I have used medium neutral citations. Reason, medium neutral citations displays the specific court which means the reader does not have to do additional research. Cross, Rupert and J.
Trachtman, Joel P. Goodhart, A. Goodhart, Arthur L. Hawthorne, James and Edward N. Zalta ed. Montrose, J. Simpson, A. Federation Insurance Limited V.
Wasson and Others [] CLR
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