A PROJECT

on

RATIO DECIDENDI AND OBITERDICTE-DIFFERENT

PARTS OF PRECEDENTS

Submitted To: Ms Anukriti Mishra

Faculty: Jurisprudence- II

Submitted By: Vibha Barley

B.A. LL.B(Hons.), Semester-6

Roll No: 176

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR (C.G.)

1
 ACKNOWLEDGEMENT
Gratitude is the noble response of ones soul to kindness or help generously rendered by
another and its acknowledgment is a duty and joyance. So it is that I express briefly my debt
to those who have made the creation of this project possible.

I extend my thankfulness to the IT Committee without which my project would have had no
life. I also thank all my friends and all my well wishers who had helped in the completion of
this project. Last but never the least I extend my wholehearted thankfulness to the librarians
& to the office bearers for their backup.

The views expressed in this project are purely that of the author and the same are not
intended against any one personally, any suggestions, corrections and alterations would be
treated with extreme obligations.

VIBHA BARLEY

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 OBJECTIVES
To understand Ratio decidendi and Obiter Dictum

To know the extent of validity of precedents

RESEARCH METHODOLOGY
This doctrinal research is rigorous and indicative in nature and approaches the subtle issue in
an objective, non-prejudiced way leaving no span for any unrequited inquiry on the subject at
hand.

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 TABLE OF CONTENTS

OBJECTIVES 3

RESEARCH METHODOLOGY 3

INTRODUCTION 5

ROLE OF JUDICIAL PRECEDENT IN DEVELOPMENT OF LAW 7

JUDICIAL PRECDENTS AND ITS PARTS 10

RATIO DECIDENDI 11

OBITER DICTUM 12

CONSTITUTIONALITY OF PRECEDENTS 14

EXCEPTIONS TO BINDING FORCE 16

BINDING FORCE OF OBITER DICTA UNDER ARTICLE 141 16

CONCLUSION 19
REFERENCES 20

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 INTRODUCTION

There are cases which involve questions which admit of being answered on principles. Such
principles are deduced by way of abstraction of the material facts of the case eliminating the
immaterial elements. The principle that comes out as a result of such case is not applicable
only to that case, but to cases also which are similar to the decided case in their essential
features. This principle is called Ratio Decidendi. The issues which need determination of no
general principles are answered on the circumstances of the particular case and lay down no
principles of general application. These are called Obiter Dictum. It is the Ratio Decidendi of
a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent. But
it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case
which he is going to decide. This gives an opportunity to him to mould the law according to
the changed conditions by laying emphasis on one or the other point.

Judicial precedent is the source of law where past decisions create law for judges to refer
back to for guidance in future cases. Precedent is based upon the principle of stare decisis et
non quieta movere, more commonly referred to as stare decisis', meaning to stand by
decided matters. A binding precedent is where previous decisions must be followed. This
can sometimes lead to unjust decisions, which I will address when talking about the
advantages and disadvantages of binding precedent. First I will address how the process of
judicial precedent works, including the hierarchical structure of the courts, moving on to the
advantages and disadvantages of using the doctrine.

Every developed legal system possesses a judicial organ. The main function of the judicial
organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this
adjudication the courts are guided by customs and their own sense of justice. As society
progresses, legislation becomes the main source of law and the judges decide cases according
to it. Even at this stage the judges perform some creative function. In the cases of first
impression, in the matters of interpretation, or in filling up any lacuna in the law made by
legislation the judges, to some extent, depend on their sense of right and wrong and in doing
so, they adapt the law to the changed conditions.

Most of the basic elements of the rule of precedent such as the distinction between ratio
decidendi and obiter dictum were known to seventeenth century English lawyers. However, a
consistent practice of precedent could not develop until a single hierarchy of courts and a

5
reliable system of law reporting had been established. In England these conditions were
fulfilled in the second half of the nineteenth century. Today, the single case doctrine, or, as it
is sometimes called derisively, the superstition of the single case, is applied in common law
countries with varying degrees of strictness. The rule of precedent is the instrument through
which that power is exercised in common law countries. It is thus not just of legal, but also of
political importance. Accordingly it comes as no surprise that the mysteries of judicial law-
making, and of the rule of precedent in particular, continue to attract attention and much
intense reflection from prominent judges, academic lawyers, and legal philosophers.

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ROLE OF JUDICIAL PRECEDENT IN DEVELOPMENT OF
LAW

According to Gray, A precedent covers everything said or done, which furnishes a rule for
subsequent practice. According to Keeton, A judicial precedent is judicial to which
authority has in some measure been attached. According to Salmond, In loose sense it
includes merely reported case law which may be cited & followed by courts.1

In strict sense, that case law which not only has a great binding authority but must also be
followed. According to Bentham precedents are Judge made Law. According to Austin
precedents are Judiciarys Law.

A binding precedent is created when the facts of a latter case are sufficiently similar to the
facts of a previous case. The doctrine of precedent is often referred to as being a rigid
doctrine. Within the court hierarchy, every court is bound to previous decisions made by
courts higher than them.

Where the Supreme Court has expressly made its ratio prospective, the High Court cannot
give it retrospective effect. By implication, all contrary actions taken prior to such declaration
stand validated. The doctrine of prospective overruling is applicable to matters arising under
the Constitution as well as the statute. Applicability of the doctrine is left to the discretion of
the court to be molded in accordance with justice of the cause and matter before it. If the
Supreme Court does not exercise its discretion to hold that the law declared by it would
operate only prospectively, High Court cannot of its own hold so. When the Supreme Court
interprets an existing law overruling the interpretation given to it earlier and does not lay
down any new law, declaration of law by it relates back to the law itself [Sarwan Kumar v
Madan Lal Aggarwal 2].

Courts are bound to follow the upper courts decision

When some principle has been laid down by the Supreme Court or some practice is
deprecated, it is the duty of the High Court or lower Court to follow the decision of the
Supreme Court, even though it may not have the approval of the Judge of the High Court or

1 http://www.open.edu/openlearnworks/mod/page/view.php?id=43393

2 2003) 4 SCC 147

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lower Court where the Supreme Court decision is cited. Central Administrative Tribunal, too,
is bound to follow the Supreme Court decisions.

A judgment of the High Court that refuses to follow the directions of the Supreme Court or
seeks to revive a decision of the High Court which was set aside by the Supreme Court is a
nullity. The Supreme Court may treat it as contempt even where its order was couched in the
language of a request.

If a direction of the Supreme Court is clear, a party cannot approach the Court for
clarification for assisting the High Court, since the same would tantamount to nullifying the
Supreme Court order or notification.

The binding force of a Supreme Court decision cannot be assailed on the ground that it did
not consider a particular argument provided the point to which the argument relates was
actually decided therein. But in case of Obiters of the SC it has a great persuasive value.

This persistence paid off spectacularly when in TMA Pai Foundation v. State of Karnataka &
Ors3, by a wafer thin majority of six-five, the apex court 4 unfortunately during the course of
delivering the 129-page majority judgment in the landmark TMA Pai Foundation Case the
then chief justice B. N. Kirpal made some obiter dicta (casual remarks) relating to state
governments advising minority and unaided college managements to make provision
designed for needy and backward students "according to local needs". This was interpreted
by several state governments as a directive to persist with the status quo. Following the
judgments of several high courts staying the implementation of the verdict in TMA Pais

3 2002 8 SCC 481

4 Apex court not only upheld the right of minorities to "establish and administer
educational institutions of their choice", but also expanded this right to all
citizens (including non-minorities) under Article 19 (1) (g) which confers a
fundamental right upon all citizens to "practice any profession, or to carry on any
occupation, trade or business". Stressing the "essentially charitable nature" of
providing education which rules out education as a business, the apex court held
that provision of education is a legitimate "occupation". As such the
managements of private, unaided institutes of professional education have a
fundamental right to establish their own admission processes provided they are
based on merit, and to levy their own tuition fees subject to their being
reasonable, ruled the court which however specifically banned the levy of
capitation fees and "profiteering".

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Case, the Supreme Court under Kirpals successor Chief Justice V.J. Khare constituted a five-
judge bench to "clarify" the courts full bench judgment in the TMA Pai Foundation Case.

The upshot of the clarification judgment of the Supreme Court in Islamic Academy v. Union
of India5 was a 4-1 decision which directed all state governments to constitute separate
admission and fees fixation committees headed by retired high court judges. But with the
judges committees setting tuition fees of medical and engineering colleges way below cost,
another spate of writ petitions followed questioning the rationale of the Islamic Academy
Case judgment and contending it virtually overruled the substance of the Supreme Courts
verdict in the TMA Pai Case. Hence a seven judge bench was constituted to hear P.A.
Inamdar v. State of Maharashtra to re-clarify the judgments in TMA Pai Foundation and the
Islamic Academy cases.6

5 (2003 SCC 697)

6 Professional education freedom verdict sparks constitutional crisis,

Education world October 2005

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 JUDICIAL PRECEDENT AND ITS PARTS

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for
the decision) and obiter dictum (something said by the way). The principles of
Binding Precedent apply only when the facts must be sufficiently similar and the court must
be more senior or on the same level. It is only the ratio decidendi (the legal reasoning or
ground for the judicial decision) which is binding on later courts under the system
of judicial precedent.7

Every decision contains the following basic ingredients8:

1. Findings or material facts, both direct and inferential;

2. Statements of the Principles of law applicable to the legal problems disclosed by the facts,
However, for the purpose of the doctrine of precedent, this is the vital element in the decision,
and it is this that is termed the ratio decidendi. Thus the ratio decidendi may be defined as
the statement of law applied to the legal problems raised by the facts, upon which the
decision is based

3. A judgment (or judgments) based on the combined effect of above points. For the purposes
of the parties, this is the material element in the decision, for it is what ultimately determines
their rights and liabilities in relation to the subject matter of the case.

An inferential finding of fact is the inference that the judge draws from the direct or
perceptible facts. For example, negligence may be inferred from the direct facts of the speed
of a vehicle, the length of skid marks, and the state of the road. Negligence is thus as
inferential finding of fact.

Not every statement of law in a judgment is binding; only those statement that based upon the
facts and upon which the decision is based are binding. Any other statement of law is

7 http://www.lawyersclubindia.com/articles/Judicial-Precedents-
3737.asp#.VwLWkZx97IX

8 http://www.lawteacher.net/free-law-essays/judicial-law/judicial-precedent-is-
source-of-law.php

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superfluous and is described as obiter dictum (it means by the way). It should not, however
be concluded from this that obiter dicta are of little or no weight or importance.

RATIO DECIDENDI:

The authority of a decision as a precedent lies in its Ratio Decidendi. The Role of Ratio
Decidendi in Judicial Precedent Ratio decidendi plays a very important role in judicial
precedent as it is the legal principle underlying the decision in a particular case. Therefore, it
creates the precedent for future cases and is considered the most important part of a judge's
speech. Judicial precedent, which is case law, has been and still is a major source of law in
the English system. The decisions from previous cases create law for future judges to follow.
The English law system is based on the Latin principle of stare decisis, which means 'stand
by what has been decided and do not unsettle the established.9

However, Goodhart did not accept the classical definitions mentioned above. His criticisms
were10:

a. That every case must contain an ascertainable principle of law, even though there may be
no opinion delivered by the judge.

b. That the statement of law may be too wide or too narrow.

While defending his definition, he said that the whole point of my article was based on the
proposition that every case must contain a binding principle, but that this binding principle
is not necessarily to be found in the statement of the law made by the judge.

He also said that the judges must interpret statutes, but it would be misleading to say that
they are therefore constructing them.

He even said to the extent that the phrase ratio decidendi is misleading because the
reason which the judge gives for his decision is not binding and may not correctly represent
the principle.
9 http://www.uniassignment.com/essay-samples/law/ratio-decidendi-and-obiter-
dictum-law-constitutional-administrative-essay.php

10 http://epublications.bond.edu.au/cgi/viewcontent.cgi?
article=1001&context=blr

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He suggested that the principle of the case could be found by determining

(a) The facts treated by the judge as material, and

(b) His decision as based on them.

The judge, therefore, reaches a conclusion upon the facts as he sees them. It is on these facts
that he bases his judgment, and not on any others. It follows that our task in analysing

case is not to state the facts and the conclusion, but to state the material facts as seen by the
judge and his conclusion based on them

OBITER DICTUM:

Blacks law Dictionary defines Obiter means a judicial comments made during the course of
delivering a Judicial opinion but one that is unnecessary to the decision in the case &
therefore not precedential.11 According to Whortons Law Dictionary Obiter is an opinion not
necessary to judgment12

What is obiter and what is not obiter is well known. Whatever was necessary for the
determination of a particular case cannot be called obiter. It is verily the ratio decidendi.
Where the opinion of the Tribunal on the question was not necessary at all for decision of the
case it is an obiter or it can be say obiter means by the way. Even in this area it would appear
there is a difference between a casual observation and an expression of opinion after the
Judge applying his judicial mind and deciding the question.13 The opinion regarding the obiter
has also been give by some judges, What is an obiter which is not binding has been
enunciated by Chagla, C.J., and Shah, J14

11 Garner A Bryan, Blacks Law Dictionary, 7th Edn., West Group Publisher,US,
1999

12 Whartons Law Dictionary, 4th Edn., Univershal Law Publisher, New Delhi

13 Erroneous Interpretation of Erroneous Decision By Supreme Court, by Smt Lajvanti v. Ganatra, Advocate,
High Court, Bombay V. B. Ganatra, Advocate, Supreme Court of India, Cite as : (1972) 2 SCC (Jour) 29

14 Shah, J., was then Judge of the Bombay High Court. The same Shah, J., as
Supreme Court Judge delivered the Mangaldas Judgment

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It is petite to cite the well known jurist Shri M.M. Seerwai 15 from his treatise on the subject of
obiter. He says "In England obiter dicta" are not binding on any court16, but in India it had
been held that the obiter dicta of the Privy Council were binding on all courts in India. 17 This
was on the ground that if the Highest court of appeal had applied its mind and decided a
question, judicial discipline required that the decision should be followed.

An example of an instance where a court opinion may include obiter dicta is where a court
rules that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the
court in such a case offers opinions on the merits of the case, such opinions may constitute
obiter dicta. Less clear-cut instances of obiter dicta occur where a judge makes a side
comment in an opinion to provide context for other parts of the opinion, or makes a thorough
exploration of a relevant area of law. Another example would be where the judge, in
explaining his ruling, provides a hypothetical set of facts and explains how he or she believes
the law would apply to those facts.

In the case of Arnit Das v. State of Bihar18, while examining the binding effect of such a
decision, this Court observed thus:

A decision not expressed, not accompanied by reasons and not proceeding on a conscious
consideration of an issue cannot be deemed to be a law declared to have a binding effect as is
contemplated by Article 141. That which has escaped in the judgment is not the ratio
decidendi. This is the rule of sub silentio, in the technical sense when a particular point of
law was not consciously determined.

The ratio of the dissenting judge also contributes towards the obiter dicta of the case. In India,
the Supreme Court gives binding force to many of its obiter dicta.

15 Advocate General of Maharashtra & Author of 'Constitutional Law of India'

16 Halsbury Law of England, Vol. 22, p. 797

17 Mohandass Issardass v. A.N. Sattanadhan, 56 Bom LR 1156

18 AIR 2000 SC 2264

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 CONSTITUTIONALITY OF PRECEDENTS

Art. 141 provide Law declared by SC to be binding on all lower courts Law declared by the
SC shall be binding on all courts within the territory of India.19

The point for consideration is whether the Supreme Court decision on a given issue is always
to be followed. Under Article 141 of the Constitution of India the law declared by the
Supreme Court shall be binding on all Courts within the territory of India. The general
belief, thus, is that the Supreme Court decisions are always binding on lower Courts.
However, can such belief be regarded as a rule without any exceptions?

In terms of Article 141 of the Constitution, the Supreme Court is enjoined to declare law. The
term declared is wider than the term found or made. To declare means to announce
opinion. Indeed, the term made involves a process, while the term declare expresses
result. The law declared by the Supreme Court is the law of the land. It is a precedent for
itself and for all Courts/ tribunals and authorities in India [Rupa Ashok Hurra v Ashok Hurra
(2002) 4 SCC 388]. To deny this power to the Supreme Court on the footing that it only
finds law but does not make it, is to make ineffective the powerful instrument of justice
placed in the hands of the highest judiciary. While the position of the Supreme Court is
subordinate to the Legislature, it must be recognized that in the Supreme Courts effort to
achieve its purpose of declaring the law, creativity is involved. A statute is binding; but it is
the statute, as interpreted by the Supreme Court that is binding on all other Courts. The
Supreme Court is not mere interpreter of the existing law. As a wing of the State, it is a
source of the law.

19 Shukla N.V., Constitution of India, 10th Edn., Eastern Book Co., Lucknow, 2004

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In State of U.P. v. Synthetics and Chemicals Ltd., 20 the Court laid down that such a decision
cannot be deemed to be a law declared to have binding effect as is contemplated by Article
141 of the Constitution of India and observed thus:

A decision which is not express and is not founded on reasons nor it proceeds on
consideration of issue cannot be deemed to be a law declared to have a binding effect as is
contemplated by Article 141.

What is binding is the ratio of the decision and not any finding on facts, or the opinion of the
Court on any question i.e. Obiter, which was not required to be decided in a particular case.
The law that will be binding under Article 141 would extend only to the observations on the
points raised and decided by the Court in a case. Therefore, as a matter of practice, the court
does not make any pronouncement, particularly in Constitutional matters, on the points not
directly raised for its decision. General principle of law laid down by the Supreme Court is
applicable to every person including those who are not a party to that order. In other words, it
is the principle underlying a decision that is binding. While applying the decision in a later
case, therefore, the later Court should try to ascertain the true principle laid down by the
previous decision, in the context of the questions involved in that case from which the
decision takes is colour.

In Director of Settlement, A.P. and Others v. M.R. Apparao and Another21, a Three Judge
Bench has opined that Article 141 of the Constitution unequivocally indicates that the law
declared by the Supreme Court shall be binding on all courts within the territory of India.
The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an
essential function of the Court to interpret legislation. The statements of the Court on matters
other than law like facts may have no binding force as the facts of two cases may not be
similar. But what is binding is the ratio of the decision and not any finding of facts i.e. Obiter.
It is the principle found out upon a reading of a judgment as a whole, in the light of the
questions before the Court that forms the ratio and not any particular word or sentence. To
determine whether a decision has declared law it cannot be said to be a law when a point is
disposed of on concession and what is binding is the principle underlying a decision.22

20 (1991) 4 SCC 139

21 (2002) 4 Supreme Court Cases 638

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Finally, Article 141 of the Constitution uses the words "all courts", that is, the courts other
than the Supreme Court23 and the Supreme Court is thus free to depart from a prior decision
of the court. However, it does not mean that it would readily do so on every case: "Accepting
that this Court is not bound by its own decisions and may reverse a previous decision, the
Court will surely be slow to do so unless such previous decision appears to be obviously
erroneous24." This finds an echo in the announcement in England on July 26, 1966 by the
House of Lords that it would no longer be absolutely bound by its own decisions: "Their
Lordships regard the use of precedent as an indispensable foundation upon which to decide
what are the law and its application to individual cases. (Since) too rigid adherence to
precedent may lead to injustice in a particular case and unduly restrict the proper
development of the law, they propose to modify their present practice and to depart from a
previous decision when it appears right to do so.25"

EXCEPTIONS TO THE BINDING FORCE

A decision is available as a precedent only if it decides a question of law. [Ram Prasad

Saruna v Mani Kumar Subba (2003) 1 SCC 289]

When the Court is divided, it is the judgment of the majority which constitutes the law
declared by the Supreme Court and not the view or observations of the judges in minority. It
is immaterial that the conclusion of the majority was arrived at by the several Judges on
different grounds or different processes of reasoning.

The following kinds of decisions cannot be deemed to be a law declared to have a binding
effect as is contemplated by Article 141:

The decision that is not express

The decision not founded on reasons

22 www.delhidistrictcourt.nic.in

23 Bengal Immunity Co. v. State of Bihar, (1955) 2 SCR 603 (628)

24 Dwarkadas v. Sholapur Co., AIR 1954 SC 119 (137)

25 The Times, July 27 1987

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 The decision that does not proceed on consideration of the issue

The later Court would not be bound by those reasons or propositions which were not
necessary for deciding the previous case. Conversely, the later Court cannot unnecessarily
expand the scope and authority of the precedent. In other words, a judgment cannot be
construed as an Act of Parliament. It must be read in the context of the questions that arose
for consideration in the case and not as embracing all aspects of every question relating to the
subject or laying down principle of universal application. In the absence of parity of situation
or circumstances, the reasoning of one decision cannot be applied in another case.

BINDING FORCE OF OBITER DICTA UNDER ARTICLE 141

Only ratio decidendi is binding; obiter dicta, that is, the general observations have no binding
force. Since an obiter is not binding as the law declared under Article 141, it cannot be relied
upon solely to hold certain statutory rules as invalid.

An obiter dictum is an observation made by a Court on a legal question suggested by a case

before it, but not arising in such manner as to require the Courts decision. It is not binding as
a precedent, because the observation was unnecessary for the decision given by the Court. An
obiter of the Supreme Court though not binding as precedent, is worthy of respect and
considerable weight26.

While the decision of the Supreme Court cannot be assailed on the ground that certain aspects
were not considered or the relevant provisions were not brought to the notice of the Court, the
position is different as regards obiter.

If the earlier decision is by larger bench:

If the later decision is that of a larger Bench, the previous decision will be deemed to have
been overruled. Thus, the judgment of a 3-judge Bench is binding on a Bench of 2 Judges.
However, where there is a conflict between two decisions of the Supreme Court, it is the later
decision that will be binding on the lower Courts, unless the earlier decision was by a larger
Bench.27
26 Director of Settlements, A P v M R Apparao (2002) 4 SCC 638

27 Mattu Lal v Radhe Lal, AIR 1974 SC 1596; State of UP v Ram Chandra, AIR 1976 SC 2547

17
Supreme Courts observation on facts:

Statements on matters other than law, e.g., facts, have no binding force, for the facts of two
cases are generally not similar. On this principle, decision on a question of sentence cannot be
regarded as law declared A reference may, however, be made to the Bombay High Court
decision28 in which it was held that if the facts were same, the Supreme Court decision was a
binding precedent.

Decision based on concession:

No law is laid down when a point is disposed of on concession. If the court proceeds on the
basis of concession made by a party, the decision cannot by any stretch be termed a binding
precedent and cannot have the sanctity and solemnity of a binding precedent.29

In Naval kishore Somani v. Poonam Somani30 there lordship held that the correct poison in
Jurisprudence regarding the precedent is that a judgment has to be read as a whole & any
observation in the judgment have to be considered in the light of fact & circumstances of the
case. It is trite to say that only ratio decidendi is binding in subsequent case. All general
observation made in the case are not binding i.e. called Obiter.

In Amarnath Om Prakash v. State of Punjab 31 his lordship Jus. Chinappa Reddy observed
judgments of the court are not to be construed as statutes to interpret the words. Every
word & observation made in the judgment is not to be considered as Precedent.

The matter of precedent also came in ministry of Defense were the comity reported regarding
the matter related with reservation in Defense Services. The point which rose was weather the
observation made in Indra Sawhany vs UOI32 is ratio decidendi or obiter. The Ministry of
Defense in their Action Taken Reply have stated that the Apex Courts observations with

28 D Navinchandra v Union of India (1989) 43 ELT 266 (Bom)3

29 Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262; Director of Settlements, A P v M R Apparao (2002)
4 SCC 638

30 AIR 1999 AP 1, para 9 & 10

31 AIR 1985 SC 218

32 AIR 1992 SC 477

18
regard to non-advisability of reservation in the Defense Services, etc., as contained in the
case of Indra Sawhany vs UOI33, were not by way of obiter dicta without a ratio decidendi. A
bare perusal of paras 112 and 121 of the judgment makes it abundantly clear that the courts
decision in this regard was given after due deliberations taking all aspects into consideration.
It is true that though the courts decision/suggestion were to operate prospectively but even
prior to 1992 there was no reservation policy in the Defense Forces. Hence, ibid judgment of
the Apex Court has not changed the ground situation as far as the Defense Forces are
concerned.34

CONCLUSION
The ratio decidendi is the binding part of a decision and is the principle of law on which the
decision of a case is based. The obiter dictum speculates what the judge would of decided if
the facts of the case had been different, it may be of persuasive authority in later cases but it
is not binding on future cases. Difficulty can arise in the event of the judge not specifying
what the ratio decidendi is; it would then be the later judges responsibility to interpret what
the ratio of the case is. It is also possible for more than one ratio and can disagreement over
what or which part is the ratio of the case. In comparison with the mechanism of overruling,
which is rarely used, the main device for avoiding binding precedent is that of distinguishing.
As has been previously stated, the ratio decidendi of any case is based upon the material facts
of the case. This opens up the possibility that a court may regard the facts of the case before it
as significantly different from the facts of a cited precedent, so it will not find itself bound to
follow that precedent. Judges use the device of distinguishing where, for some reason, they

33 ibid

34 COMMITTEE ON THE WELFARE OF SCHEDULED CASTES AND SCHEDULED TRIBES,

THIRTEENTH LOK SABHA, TWENTY SIXTH REPORT ON MINISTRY OF DEFENCE, 2003-2004

19
are unwilling to follow a particular precedent. Law reports provide many examples of
strained distinctions where a court has quite evidently not wanted to follow an authority that
it would otherwise have been bound by.

REFERENCES
A. Lakshamnath: Judicial Process: PRECEDENT IN INDIAN LAW; Third Edition;
East Book Company,2009

Williams Glanville, LEARNING THE LAW, 11th Edn.; Universal Law Publishing Co.
Pvt. Ltd, Delhi, 2002

Shukla N.V., CONSTITUTION OF INDIA, 10th Edn.; Eastern Book Co., Lucknow,
2004

Garner A Bryan, BLACKS LAW DICTIONARY, 7 th Edn.; West Group Publisher,

US, 1999

Whartons Law Dictionary, 4th Edn; Universal Law Publisher, New Delhi

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21