Over the years there have been many questions raised and a lot has been
written on the subject on what determines obiter dicta and ratio decidendi.
Legal academics have been arguing ever since over this and there hasn’t been a
single concrete conclusion, yet it also hasn’t given us the liberty and room to
interpret this maxim as we please. It does however clarify our doubts and
confusions and warns us of certain errors and traps we may fall into with regard
to obiter dicta and ratio decidendi. What remains to be determined is a
perpetual question - can there be a conclusive determination of what obiter
dicta and ratio decidendi is and can it be easily distinguished in the decision
of the judge? What also needs to be addressed is how the legal jurist’s, lawyers
and the judges can come halfway at least, right at the mark, for the
understanding of this decision making maxim. It can certainly be said that if
our horizons are broadened in this regard it would most definitely turn the
tables of the century and would be a tool for the future judges in the law
What is being talked about here is that it is incumbent upon a judge and a
lawyer or a legal academic to utilize his sense of reasoning not superficially
but at its root so as to understand the essence or fundamentals of any issue.
And if that has to happen it’s important for them to gain the requisite
knowledge on the subject and that our understanding on the issue be thorough and
strong. This is where the major mistake is being made while making a distinction
between Obiter Dicta and Ratio Decidendi.
It is the lack of thorough knowledge and the lack of clarity on the subject
where we fall in a trap.
When we look at Obiter dicta and Ratio decidendi as a part of stare decisis we
expect it to be a straight forward principle which ought to be used by a judge
in determining the case by referring to other case laws and hence too much
emphasis is laid on precedent as is, we forget or we simply just don’t know, or
tend to not look beyond precedent as is, and get into its broader spectrum of
how it could be moldedwithout changing its essence and we also tend to lose
sight of how it doesn’t necessarily have to be a textbook definition of what a
judge can decide on a principle given.
The Doctrine of Precedent
Courts cite to stare decisis when an issue has been previously brought to the
court and a ruling already issued. According to the Supreme Court, stare decisis “promotes
the even handed, predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” In practice, the Supreme Court
will usually defer to its previous decisions even if the soundness of the
decision is in doubt. A benefit of this rigidity is that a court need not
continuously re evaluate the legal underpinnings of past decisions and accepted
doctrines. Moreover, proponents argue that the predictability afforded by the
doctrine helps clarify constitutional rights for the public. Other commentators
point out that courts and society only realize these benefits when decisions are
published and made available. Thus, some scholars assert that stare decisis are
harder to justify in cases involving secret opinions.
The doctrine operates both horizontally and vertically. Horizontal stare
decisis refers to a court adhering to its own precedent. A court engages
in vertical stare decisis when it applies precedent from a higher court.
Consequently, stare decisis discourages litigating established precedents, and
thus, reduces spending.
The Principle of Stare Decisis
Reasons And Importance of The Rule.
The policy of the courts, and the principle upon which rests the authority of
judicial decisions as precedents in subsequent Litigations, is embodied in the
maxim, Stare decisis et non quieta mnovere-to abide by the precedents and not
to disturb settled points. Its meaning is that when a point of law has been once
solemnly and necessarily settled by the decision of a competent court, it will
no longer be considered open to examination, or to a new ruling, by the same
tribunal or those which are bound to follow its adjudications.
Noted Judge Cooley of the 1800’s in the American Judiciary observes: “Even if
the same or any other court, in a subsequent case, should be in doubt concerning
the correctness of the decision which has been made, there are consequences of a
very grave character to be contemplated and weighed before the experiment of
disregarding it should be ventured upon. That state of things, when judicial
decisions conflict, so that a citizen is always at a loss in regard to his
rights and his duties, is a very serious evil; and the alternative of accepting
adjudged cases as precedents in future controversies resting upon analogous
facts, and brought within the same reasons, is obviously preferable :"The
principle of stare Decisis, therefore, though presenting certain analogies to
the rule which establishes the conclusiveness of an estoppel (the principle which
precludes a person from asserting something contrary to what is implied by a
previous action or statement of that person or by a previous pertinent judicial
determination) by judgment, both rests upon a broader foundation and is more
comprehensive in its application. The latter doctrine springs from the two
maxims, that "no one should be twice harassed concerning the same dispute," and
that "the interest of the state demands there should be an end of litigation,"
and is necessarily limited, in its effect, to the parties to the particular
controversy and, their privies. But the former is predicated upon the necessity
of finally settling the rules of the common law and the interpretation of
statutory enactments in the interest, and for the protection and guidance, of
the entire community; and hence it interposes a barrier to fluctuations of
judicial opinion in all similar cases.
What and why of Obiter Dicta and Ratio Decidendi
In order for us to completely understand the underlying factors which give rise
to this complex thread of Obiter Dicta and Ratio Decidendi. We will try to use
an approach of illustrations which will clear our confusion of the distinction
between the two, once that falls in place we may then move forward and get a
concise definition of the same.
The distinction between Descriptive Ratio and Prescriptive Ratio
The reason why the distinction is made is because that will help us ascertain
how descriptive ratio, as an aid, which ordinarily is a ratio of old case, would
aid in the future case. Descriptive on the other hand is how this prescriptive
ratio can be applied to any given future case. Hence the distinction is to be
made, so as to ease our burden of understanding this complex area of principle
and reason wherein most of the jurists fall short in their understanding and it
can be pretty dangerous in the sense if a judge decides a reason for deciding a
case based on a principle that has no connection or any relation to the matter.
He would be termed a bad judge and it would affect his credibility a lot.
Ratio Decidendi ordinarily means the ‘reason for deciding’ the case. However we
must not limit our understanding to this and look beyond the definition. The
‘reason’ here is not -
The fact of the case.
The law that the case applies.
The order of the case.
Instead what we are looking at in Ratio Decidendi is the necessary step the
judge must take to resolve the case. It is that necessary step that will be the
reason to decide a case. It must be a step to the conclusion which is necessary
and must be directly related to the issue. It must come from disputes of law,
not disputes of fact. Ratio Decidendi must be argued in court and the facts of
the precedent case shape the level of generality to which the later courts
decide the level of generality. Ironically when a precedent has multiple
reasons, all reasons are binding. The ratio can come in multiple forms – Common
law rules, Interpretation of statute; Interpretation of the common law rules.
When there are multiple judges-the majority judges must agree to be binding and
if the judges have different reasons-find essential areas of agreement. If the
majority of judges agree on the order but do not agree on the reason, cannot
discard the precedent. Judges cannot construct a ratio by the aggregation of
various elements of separate reasons. A precedent can definitely be binding
without a ratio and when a ratio cannot be determined, later courts may not be
bound. We know not all cases must have a ratio and unstated assumptions are not
It is this complexity yet simplicity of this maxim that the judges need to
comprehend while deciding cases and be cautious so as to not fall in a trap. One
may presume something to be the ratio of a case when in reality it wouldn’t be
Let’s use an illustration, to get some more clarity on the subject, consider the
following hypothetical judgement from the book ‘Legal Technique’ by Christopher
Enright. Imaginethat there’s a dog act 1947 and section 6 states’ a person may
bring an action against the owner of a dog if it enters the premise or the land
owned by that person’
Now imagine the following exact is the judgment.
Elisabeth owns a meadow. Elisabeth sues Kit Walker because Kit allowed his pet
wolf Devil to walk onto her meadow and molest her pet rabbit, much to the
distress of both Elisabeth and the rabbit. Elisabeth now brings proceedings
under s 6 of the Dog Act 1947.
Three things are clear regarding a breach of s6. First, Elisabeth's meadow is
land. Second, Elisabeth is owner of the land so Elisabeth is entitled to bring
the action in her own right. We add that this would be the case even if
Elisabeth had not discharged her mortgage to the Rural Bank some years ago. It
would not have been necessary in that case for the action to be brought by both
Elisabeth and the Rural Bank as co-plaintiffs. Third, Devil has entered
What is not immediately clear is whether Devil, a wolf, is a dog within the
meaning of s 6 of the Dog Act 1947. From a zoological perspective a wolf is a
member of the dog family. On the surface this may seem conclusive on the
question of whether a wolf is a dog. However a number of the provisions of the
Dog Act 1947 referring to dogs clearly mean only dogs of a type which are
ordinarily domesticated. Given this we feel that we have to interpret s6 in the
same way and so find that in s6 ”dog" means only a dog of a type which is
ordinarily domesticated. In this case the offending animal is a wolf. While the
particular wolf was domesticated, as a species wolves are not usually
For this reason Devil is not a dog within the meaning of s6 of the Dog Act so
the plaintiff fails in her claim.
The ratio decidendi from this fictional judgment was the interpretation of the
word “dog” in s6 of the Dog Act. Reason, it was the only part of the judgment
that needed an extra step. The other parts of the judgment were simply the
facts, the existing law, and the application of the law to the facts. Therefore,
the ratio decidendi from this fictional judgment was: The term “dog” under s 6
of The Dog Act 1947 “means only a dog of a type which is ordinarily
domesticated” and did not extend to wolves.
To illustrate this point further, there was a phrase in this judgment that
sounded like the ratio but was in fact, obiter dictum.
We add that this would be the case even if Elisabeth had not discharged her
mortgage to the Rural Bank some years ago. It would not have been necessary in
that case for the action to be brought by both Elisabeth and the Rural Bank as
Obiter dicta are statements within a judgment that do not constitute as the
ratio and is subsequently non-binding on future cases. The statement sounded
authoritative and definitive and had the feel of being ratio, however, it was
obiter because Elizabeth did not discharge ‘her mortgage to the Rural Bank,’ and
therefore, the statement was not necessary to the decision. The phrase ‘her
mortgage to the Rural Bank’ had nothing to do with the matter.
Now that we’ve examined the descriptive ratio, we need to examine the
prescriptiveratio, that is, how the precedent ratio may apply to future cases.
Prescriptive Ratio Decidendi
There is a logical dichotomy between the descriptive ratio decidendi and the
prescriptive ratio decidendi. We may be able to identify the ratio in the
precedent case but it is not possible to directly apply it to a future case.
Reason being, the precedent case and the future case will never be precisely
identical. There will always be distinctions between the two. What is the
probability that identical facts in the past will occur in the future? Very
slim. Thus, there needs to be a ‘level of generality’.
Level of Generality
We define the ‘level of generality’ as the transformation of a single judgment
to the future judgment. Inevitably, a transformation needs to occur as a
precedent may be utterly useless if we wait for the exact facts of the case to
exist again. Thus, the level of generality is the determination of how similar
or different the facts need to be from the old case to the new case.
To briefly illustrate, the book Laying down the Law gives us a good example:
In Donoghue v Stevenson
 the House of Lords held that the manufacturer of
a bottle of ginger beer could be liable to the consumer if, before the bottle
was sealed, the ginger beer was contaminated by the remains of a snail and the
consumer became ill as a result of drinking it. At the lowest level of
abstraction the decision would be binding on later courts on in cases with
precisely the same facts. On that basis, it would not be binding in a later case
where the drink was Coca-Cola. But, in terms of the legal rule, why should there
be a distinction between ginger beer and Coca-Cola? Logic suggests that the
principle should apply, at the lease, to all food and drink which is packaged so
as to prevent inspection.
Thus, if we stopped at the level of describing the ratio, Donoghue v
would only be applicable to cases that involve:
1) Women, 2) from
Scotland, 3) in the year of 1932, 4) in which harm can only come from snails, 5)
in ginger beer bottles, 6) placed negligently, 7) by Mr. Stevenson, 8) etc.,
Generally, obiter dictum is not binding,except, the High Court’s ‘seriously
considered dicta’ is binding.Obiter dictum is persuasive.However; obiter dicta
can have different degrees of weight.
How to determine the ratio
Since the ratio Decidendi of a case has the nature of a propositional function,
it is variable and becomes elusive. And jurists have even been in search of it.
Any legal system using precedent has to consider the way in which they are
relevant. To this end the relevancy is found in the fact that decisions involve
some principle of general applications. But the question is: How is this to be
ascertained? Classical theory has regarded the binding part of a decision as the
legal principle formulated. But A.L Good raises objections to this. According to
him the ratio decidendi is controlled by the relation between the “material
facts” of the case and the holding on these facts.
While the ratio consists of the very reasoning necessary to explain the holding
on the “material fact” found by the precedent judge, he suggests that the better
way to approach the problem is to elucidate the ratio of a case from facts
themselves rather than from the principle enunciated by the court. Julius Stone
challenges Good hart and distinguishes between “descriptive” and “prescriptive”
Ratio Decidendi to conclude that facts may be of many possible ‘levels of
generalization’. Descriptively the phrase imports an explanation of the court’s
reasoning to its conclusion based on sociological, historical and even
psychological inquiry. And the finding from such an inquiry is true or untrue as
a matter of fact. This may be sought at various levels. Prescriptively the
phrase refers to a normative judgement requiring us to choose a particular that
is binding ratio decidendi. In other words, Stone’s argument is that good hart’s
theory yields indeterminate results because the ‘principle’ derivable from a
case by the Good hart method of ‘material facts plus decision’ is entirely
dependent on the level of generality at which one chooses to describe the facts.
Precedents and rules must be followed unless flatly absurd or unjust for though
their reason be not obvious at first view, yet we owe such a deference to former
times as not to suppose that they acted wholly without consideration but if it
be found a former decision is manifestly absurd or unjust, it is declared, not
that such a sentence was bad law, but that it was not law. It might be
considered as a kind of legal axiom that courts should not exercise their
jurisdiction in any random manner for this would speedily land everything in
confusion worse confused of necessity there must be certain fixed land marks
Must be a Necessary step to the conclusion
The only thing in a Judge’s decision binding as an authority upon a subsequent
judge is the principle upon which the case was decided: but it is not sufficient
that the case should have been decided on a principle if that principle is not
itself a right principle, or one not applicable to the case; and it is for a
subsequent judge to say whether or not it is a right principle, and, if not, he
may himself lay down the true principle. In that case the prior decision ceases
to be binding authority or guide for any subsequent judge, for a second judge
who lays down the true principle in effect reverses the decision.
Note on article 141.
Law declared by the Supreme Court to be binding on all courts.
No matter what, the circumstances are the subordinate courts cannot overrule a
decision declared by the Supreme Court. It is highly impermissible. It is also
immaterial for the high courts that the conclusion of the majority was arrived
at by the bench of judges. What is binding however is the ratio of the case and
not any finding on facts or the opinion of the court on any question which was
not required to be decided in particular? It is the principle that is found out
over its issue? And certainly is to be continued no Matter where the principles
point out to.
1) It is impermissible for the High Court to overrule the decision of the apex
Court on the ground that Supreme Court laid down the legal position without
considering any other point. It is not only a matter of discipline for the High
Courts in India; it is the mandate of the Constitution as provided inArticle
141that the law declared by the Supreme Court shall be binding on all courts
within the territory of India. It was pointed out by this Court in Anil Kumar
Neotia v. Union of India
, AIR 1988 SC 1353 that the High Court cannot question
the correctness of the decision of the Supreme Court even though the point
sought before the High Court was not considered by the Supreme Court.
When the Court pronounced in Hari Singh v. Sukhbir Singh
, that a court may
enforce an order to pay compensation "by imposing a sentence in default" it is
open to all courts in India to follow the said course. The said legal position
would continue to hold good until it is overruled by larger Bench of this court.
Hence learned single judge of High Court of Kerala has committed an impropriety
by expressing that the said legal direction of this Court should not be followed
by the subordinate courts in Kerala. Disapproval of the judge was expressed
in Rajendran v. Jose
, (2001) Kerala .It is unfortunate that when the Sessions
judge has correctly done a course in accordance with the discipline the Single
judge of the High Court has incorrectly reversed it.
Jabalpur Bus Operators Association and Ors. Vs. State of M.P.
'In case of conflicting views between the decisions rendered by the co-equal
Benches of the Apex Court, which view is to be followed by the High Court as a
binding precedent ?'
It was held, that, before considering the Apex Court decisions on this question,
appropriate, it is to refer to the decisions of various High Courts since this
question has confronted not only the High Court’s but also the Apex Court from
time to time, realizingthat theory of precedent and mandate of Article 141 of
theConstitution of Indiarequires exact approach by Courts to make the law
clear, consistent and exact so that people and the Courts which are bound to
follow them are not put to choice for following one or the other decisions
and/or be in a dilemma what to do.
In New Krishna Bhavan, Malleswaram Bangalore-3 v. Commercial Tax Officer
, No. IV Circleit has been said in Paragraph 10 that-
In the opinion of the court, the view expressed by the majority of the Judges on
this point in the case reported in AIR 1959 SC 648 is binding on this Court, as
the law declared by the Supreme Court to be binding on this Court that the
actual decision of the case should proceed on that proposition. Nor is it
necessary for such proposition to be the law declared by the Supreme Court that
all the Judges shall express their views one way or the other on the point. If
the majority of Judges of the Supreme Court in a particular case express a view
on a proposition of law then that view of the majority of the Judges would be
the law declared by the Supreme Court. That being my view, the opinion expressed
by the majority of the Judges in the said case shall be held to be the law
declared by the Supreme Court and binding on this Court. ‘The next question
which arises for consideration is which of the two views--one expressed in 1958
SCJ 459: (AIR 1958 SC 468) and the other in AIR 1959 SC 648--will be binding. On
this point again there is no doubt of some difficulty. But in the opinion of the
court, it is the latest pronouncement of the Supreme Court which would be
binding When, in the opinion, the Supreme Court expressed its view on any
particular point of law such expression of view shall be considered as
over-riding all contrary views expressed on the point in earlier decisions of
the same Court. Shri B.K. Rawat contended that decision of Apex Court in
Municipal Council, Mansa is a later decision; therefore, it should be followed
while Shri Sanjay K. Agrawal submitted that since this decision does not
consider the effect of earlier decision in Cantonment Board, how earlier
decision should prevail as against the later. Therefore, learned Counsel for
both sides submitted that there is a conflict between the two decisions of the
Apex Court, both rendered by two Judge Bench seeking to follow one against the
other. With regard to the High Court, a Single Bench is bound by the decision of
another Single Bench. In case, he does not agree with the view of the other
Single Bench, he should refer the matter to the Larger Bench. Similarly,
Division Bench is bound by the judgment of earlier Division Bench. In case, it
does not agree with the view of the earlier Division Bench, it should refer the
matter to Larger Bench. In case of conflict between judgments of two Division
Benches of equal strength, the decision of earlier Division Bench shall be
followed except when it is explained by the latter Division Bench in which case
the decision of later Division Bench shall be binding. The decision of Larger
Bench is binding on Smaller Benches.
In case of conflict between two decisions of the Apex Court, Benches comprising
of equal number of Judges, decision of earlier Bench is binding unless explained
by the latter Bench of equal strength, in which case the later decision is
binding. Decision of a Larger Bench is binding on smaller Benches. Therefore,
the decision of earlier Division Bench, unless distinguished by latter Division
Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in
presence of Division Bench decisions and Larger Bench decisions, the decisions
of Larger Bench are binding on the High Courts and the Subordinate Courts. No
decision of Apex Court has been brought to our notice which holds that in case
of conflict between the two decisions by equal number of Judges, the later
decision in binding in all circumstances, or the High Courts and Subordinate
Courts can follow any decision which is found correct and accurate to the case
High Courts and Subordinate Courts should lack competence to interpret decisions
of Apex Court since that would not only defeat what is envisaged under Article
141 of the Constitution of India but also mitigate hierarchical supremacy of
Courts. The common thread which runs through various decisions of Apex Court
seems to be that great value has to be attached to precedent which has taken the
shape of rule being followed by it for the purpose of consistency and exactness
in decisions of Court, unless the Court can clearly distinguish the decision put
up as a precedent or is per incuriam, having been rendered without noticing some
earlier precedents with which the Court agrees.
Ramkumar Mills Ltd. vs. Textile Commissioner
The excerpt of the matter was on the notification of “cotton textiles (control)
order, 1986. It was contended that the decision of supreme court was binding on
all, whether parties or not, a new contention challenging notification upheld by
supreme court, cannot be gone into by high court, as it is well settled by a
series of decisions of the supreme court that the decision rendered by the
supreme court is binding on all concerned underarticle141 of the constitution,
whether they were the parties before the supreme court or not, and so in view of
the settled legal position, therefore, it cannot be held that the new contention
challenging the very same notification which is upheld by the supreme court, can
be gone into by the high court. The learned single judge, before whom these
submissions were made, rightly took the view that in view of the decision of the
Supreme Court. This argument may not survive for consideration. However, a
division-bench decision of the court in Ferro concrete co. v. state of Karnataka
1987 was pressed into service, under which the division bench had taken the view
that there was a difference between a point and an argument and if a new point
is raised, which is not considered by the supreme court, such challenge would be
permissible by way of a separate writ petition. The learned single judge went
into the merits of the matter and repelled this objection even on merits by
taking the view that the impugned order was within the legislative competence. In the result, these Appeals fail and are dismissed.
The request of the learned Advocate for the appellants to stay the operation of
Judgment for 12 weeks to enable the appellants to go to the Supreme Court,
cannot be accepted for the simple reason that the procedure to be followed by
manufacturers of yarn in the light of the impugned Notification is as laid down
in paragraph 12 of the Supreme Court Decision in G.T.N. Textiles Ltd., so long
as the Supreme Court does not modify the Decision, a stay cannot be granted. The
request for stay was therefore, rejected.
Manoj Kumar vs. Board of Revenue and Ors.
A writ petition was filed on the maintainability of section 2 of the MP uchcha
nyayalaya adhiniyam,2005 and articles 226 and 227 of constitution of India writ
appeal preferred under section 2 of Adhiniyam, 2005 for deciding scope of
maintainability of writ appeal under the 2005 Adhiniyam – The division bench
hearing the appeal on admission referred the matter to larger bench contending
whether order passed by single judge while dealing with sustainability of order
passed by board of revenue is delineation under supervisory jurisdiction
underarticle226 or 227 of constitution and not in exercise of original
jurisdiction underarticle226 of constitution It was held that the, same issue
has already been decided by supreme court in special leave Petition thus binding
precedent as sole question before ordered judgement introductory backdrop:
questioning the assail abilityand substanceof the order passed by the learned
single judge in writ petition .The argument raised by the learned Counsel for
the appellant that the appeal is maintainable against every order passed by the
learned Single Judge in exercise of powers under Article 226 of the Constitution
of India is not supported by the language of Section 2 of the Adhiniyam, because
if the said interpretation is made, the exercise of original jurisdiction will
become redundant. The legislature by use of the words 'in exercise of its
original jurisdiction' has made its intention clear that an appeal shall lie
only if the learned Single Judge has exercised its original jurisdiction. The
words 'in exercise of its original jurisdiction' qualifies for the words
'Article 226 of the Constitution of India'
Arun Kumar Aggarwal v. State of Madhya Pradesh
The Hon'ble Supreme Court explained "obiterdicta", as follows:
The expressionobiterdicta or dicta have been discussed in American
Jurisprudence 2d, Vol. 20, at pg. 437 as thus:
Dicta ordinarily, a court will decide only the questions necessary for
determining the particular case presented. But once a court acquires
jurisdiction, all material questions are open for its decision; it may properly
decide all questions so involved, even though it is not absolutely essential to
the result that all should be decided. It may, for instance, determine the
question of the constitutionality of a statute, although it is not absolutely
necessary to the disposition of the case, if the issue of constitutionality is
involved in the suit and its settlement is of public importance. An expression
in an opinion which is not necessary to support the decision reached by the
court is dictum or obiterdictum.
"Dictum" or "Obiterdictum:
is distinguished from the "holding of the court in
that the so- called "law of the case" does not extend to mere dicta, and mere
dicta are not binding under the doctrine of stare Decisis, As applied to a
particular opinion, the question of whether or not a certain part thereof is or
is not a mere dictum is sometimes a matter of argument. And while the terms
"dictum" and "obiter dictum" are generally usedsynonymouswith regard to
expressions in an opinion which are not necessary to support the decision, in
connection with the doctrine of Stare Decisis, a distinction has been drawn
between mereobiterand "judicial dicta," the latter being an expression of
opinion on a point deliberately passed upon by the court."
In State of Haryana v. Ranbir
Court has discussed the concept of the Obiter dictum thus:
"A decision, it is well settled, is an authority for what it decides and not
what can logically be deduced there from. The distinction between a dicta
and biteris well known. Obiter dicta are more or less presumably unnecessary to
the decision. It may be an expression of a viewpoint or sentiments which has no
binding effect. See ADM, Jabalpur v. Shivakant Shukla
. It is also well settled
that the statements which are not part of the ratio decidendi constitute Obiter
Dicta and are not authoritative.
Sanjay Singh & Anr. Ã Petitioners vs. U.P. Public Service commission
In regard to decisions of civil courts in suits governed by Civil Procedure Code
or appeals the term 'judgment' refers to the grounds of a decree or order,
'decree' refers to the formal expression of adjudication in a suit and 'order'
refers to formal expression of any decision of a civil court which is not a
decree. In regard to the decisions of High Court and Supreme Court in writ
jurisdiction, the term 'judgment' is normally used to refer to the 'judgment and
order', that is the grounds for the decision and the formal expression of the
decision.They, however, contend that the ratio decidendi of the decision in
S.C. Dixit upholding the Commission's system of scaling of marks in written
examination requires reconsideration. Therefore, these petitions are neither for
'review' nor for 'setting aside' or 'questioning' the decision in S.C. Dixit.
Therefore, the bar, referred to in Rupa Ashok Hurra, will not apply. The
contention of Commission also overlooks the fundamental difference between
challenge to the final order forming part of the judgment and challenge to
the ratio decidendi of the judgment. Broadly speaking, every judgment of
superior courts has three segments, namely, (i) the facts and the point at
issue; (ii) the reasons for the decision; and (iii) the final order containing
the decision. The reasons for the decision or the ratio decidendi are not the
final order containing the decision. In fact, in a judgment of Court, though
the ratio decidendi may point to a particular result, the decision (final order
relating to relief) may be different and not a natural consequence of the Ratio
Decidendi of the judgment. This may happen either on account of any subsequent
event or the need to mould the relief to do complete justice in the matter. It
is the ratio decidendi of a judgment and not the final order in the judgement,
which forms a precedent. The term 'judgement' and 'decision' are used, rather
loosely, to refer to the entire judgement or the final order or the ratio
Decidendi of a judgement.
Dev P. Bhardwaj
Central Govt. Standing Counsel
459, Lawyers’ Chambers,
Delhi High Court,
Mobile No: 9810118825