CHAPTER I: INTRODUCTION

Obiter dictum (more usually used in the plural, obiter dicta) is Latin for a word said "by the
way",1 that is, a remark in a judgment that is "said in passing". It is a concept derived
from English common law. For the purposes of judicial precedent, ratio decidendi is binding,
whereas obiter dicta are persuasive only.
A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the
case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law
issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations
made by a judge that, although included in the body of the court's opinion, do not form a
necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited
to, words "introduced by way of illustration, or analogy or argument". 2 Unlike ratio
decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be
correct statements of law. The so-called Wambaugh's Inversion Test provides that to determine
whether a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask
whether the decision would have been different, had the statement been omitted. If so, the
statement is crucial and is ratio; whereas if it is not crucial, it is obiter.
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 or her ruling, provides a
hypothetical set of facts and explains how he or she believes the law would apply to those facts.
University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by
which obiter dicta may become binding. They write that:3

1 Black's Law Dictionary, p. 967 (5th ed. 1979).

2 Id
1 | Page

"In reaching decisions, courts sometimes quote passages of obiter dicta found in th

All that is said by the court by the way or the statements of law which go beyond the
requirements of the particular case and which lay down a rule that is irrelevant or unnecessary
for the purpose in hand, are called obiter dicta. These dicta have the force of persuasive
precedents only. The judges are not bound to follow them. They can take advantage of them but
they are not bound to follow them. Obiter dicta help in the growth of law. These sometimes help
the cause of the reform of law. The judges are expected to know the law and their observations
are bound to carry weight with the government. The defects in the legal system can be pointed
out in the obiter dicta. The judges are not bound to make their observations on a particular point
unless that is strictly relevant to the point in issue but if they feel that they must speak out their
own minds on a particular point, the public should be grateful to them for their labour of love.

CHAPTER II: CONCEPT

The term obiter dicta literally means statements by the way. In Halsbury Laws of England, it has
been defined as statements which are not necessary to the decision, which go beyond the
occasion and lay down a rule that is unnecessary for the purpose in hand (usually term dicta)
leave no binding authority on another court, though they may have some merely persuasive
efficacy. According to Talbot, J.,4 an obiter dictum is an opinion on some point which is not
necessary for the decision of the case. The emphasis is not only on the opinion but also on the
point. It is not merely an expression of opinion unconnected with the cases for determination. In
Jaiwant Rao and other v. State of Rajasthan, 5, the court observed a dicta which does not form the
integral part of the chain of reasoning directed to the question decided may be regarded as
obiter.

3 Reid-Rambo, Teresa, and Leanne J. Pflaum. "Chapter 5: Sources of Law; Reading

and Interpreting Cases." Legal Writing by Design: A Guide to Great Briefs and
Memos. Durham, NC: Carolina Academic, 2013. 85. Print.
4 Expressed in the cases Dew v. United British Steamship Co. Ltd., (928) 139 LT 628.
5 AIR 1961 Raj 250
2 | Page

Expressed in the cases Dew v. United British Steamship Co. Ltd., (928) 139 LT 628. 2 AIR 1961
Raj 250 3 Per Justice Tendulkar in Mohandas v. Sattanathan, 56 Bom LR 1160.
In England an obiter dicta has no binding effect either upon a co-ordinate court or upon a
subordinate court. An obiter dicta of the House of Lords would undoubtedly be entitled to the
highest respect. But a judge in England would not feel that he would be bound by an opinion
expressed by the higher tribunal.6
Judges are human beings; perhaps more so; hence usually in writing the opinion they do not
confine themselves to the logical sequence. Often lengthy judgements indicate the judges
eagerness for exhibitionism of their learning than the necessary elucidation to decide the
proposition of law to decice the case. In such cases we have to consider the major part of the
judgement as obiter dictum. For example Indian judges are prone to write more about philosophy
(as they think) and religion volumes, though such a treatise is not necessary to decide the case.
Justice Verma in Prabhoo v. P.K. Kunte 7 and Justice K. Ramasamy in A.S. Narayana v. State of
A.P.8had written voluminous pages about Hindu Theology without enlightening anyone including
themselves. Naturally those pages have to be construed only as obiter.
In India, a departure has been made of the principle operating in England with regard to obiter
dicta. The High courts have held almost uniformly that they are bound by the obiter dictum of
the Supreme Court of India. In Mohandas v. Sattanathan9 their Lordship observed that Supreme
court is the highest judicial tribunal in India and it is as much necessary in the interest of judicial
uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta
of council. But if the obiter dicta is on a question that did not arise for determination by the
Supreme Court and is a mere expression of opinion given by the way then it is not binding. In

6 Per Justice Tendulkar in Mohandas v. Sattanathan, 56 Bom LR 1160

7 AIR 1996 SCW 145
8 AIR 1996 SC 1768
9 AIR 56 Bom LR 1160
3 | Page

Basant Kumar Pal v. The Chief Electrical Engineer and others 10 it was held that Even an obiter
of the Supreme Court is binding upon the High Court only if the Supreme Court has enunciated
or declared some principle of law.
In Nurudin Ahmed v. State of Assam,11 it was laid down that the observations of their Lordships
of the Supreme Court if they were made obiter, would be entitled to the highest esteem from the
High Court. In Ashok Leyland12 it was held that The obiter dicta of a judge of the Supreme
Court even in a dissenting judgement are entitled to high respect, especially if there is no direct
decision to conclude the question at issue. But statements on matters other than Law have no
binding force. Supreme Court decisions which are essentially on question of fact cannot be relied
upon as precedents upon as precedents for decisions of other cases.
The Supreme Court in Arun Kumar Aggarwal Vs. State of Madhya Pradesh has examined the
concept of 'obiter dicta' and the binding nature of statements / observations by Judges.In the
'Precedentiary Value of Judgments : The Law', wherein Justice Anil Kumar of the Delhi High
Court had observed that the precedentiary value of a judgment is to be judged in the background
of the facts of a particular place. The relevant extracts from the judgment are reproduced herein
below;
It is pertinent to consider the nature and scope of a mere observation or obiter dictum in the
Order of the Court. The expression obiter dicta or dicta has been discussed in American
Jurisprudence.13 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 decided 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
10 AIR 956 Cal 93.
11 AIR 1956 Assam 48
12 AIR 1957 Mad 263
13 2d, Vol. 20, at pg. 437
4 | Page

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 obiter dictum. "Dictum" or "obiter dictum: 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 used
synonymously with 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
mere obiter and "judicial dicta," the latter being an expression of opinion on a point deliberately
passed upon by the court."
"Decision on legal point; effect of dictum.In applying the doctrine of stare decisis, a distinction is
made between a holding and a dictum. Generally stare decisis does not attach to such parts of an
opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding
has been said to be that a question actually before the court and decided by it is investigated with
care and considered in its full extent, whereas other principles, although considered in their
relation to the case decided, are seldom completely investigated as to their possible bearing on
other cases. Nevertheless courts have sometimes given dicta the same effect as holdings,
particularly where "judicial dicta" as distinguished from "obiter dicta" are involved."
According to P. Ramanatha Aiyar, Advanced Law Lexicon 14, the expression "observation" means
a view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in
reference to something observed.
The Wharton's Law Lexicon15 defines term `obiter dictum' as an opinion not necessary to a
judgment; an observation as to the law made by a judge in the course of a case, but not necessary
to its decision, and therefore of no binding effect; often called as obiter dictum, ; a remark by the
way.

14 3rd ed. 2005

15 14th Ed. 1993
5 | Page

The Black Law Dictionary16,defines term `obiter dictum' as a judicial comment made while
delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore
not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less
commonly, obiter.
"Strictly speaking an `obiter dictum' is a remark made or opinion expressed by a judge, in his
decision upon a cause, `by the way' -- that is, incidentally or collaterally, and not directly upon
the question before the court; or it is any statement of law enunciated by the judge or court
merely by way of illustration, argument, analogy, or suggestion.... In the common speech of
lawyers, all such extrajudicial expressions of legal opinion are referred to as `dicta,' or `obiter
dicta,' these two terms being used interchangeably."
The Word and Phrases, Permanent Edition, Vol. 29 defines the expression `obiter dicta' or `dicta'
thus:
"Dicta are opinions of a judge which do not embody the resolution or determination of the court,
and made without argument or full consideration of the point, are not the professed deliberate
determinations of the judge himself; obiter dicta are opinions uttered by the way, not upon the
point or question pending, as if turning aside for the time from the main topic of the case to
collateral subjects; It is mere observation by a judge on a legal question suggested by the case
before him, but not arising in such a manner as to require decision by him; "Obiter dictum" is
made as argument or illustration, as pertinent to other cases as to the one on hand, and which
may enlighten or convince, but which in no sense are a part of the judgment in the particular
issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the
judge who utters them; Discussion in an opinion of principles of law which are not pertinent,
relevant, or essential to determination of issues before court is "obiter dictum".
In Municipal Corporation of Delhi v. Gurnam Kaur17, and Divisional Controller, KSRTC v.
Mahadeva Shetty18, this Court has observed that "Mere casual expressions carry no weight at all.
16 9th ed, 2009
17 (1989) 1 SCC 101
18 (2003) 7 SCC 197
6 | Page

Not every passing expression of a judge, however eminent, can be treated as an ex cathedra
statement, having the weight of authority."
In State of Haryana v. Ranbir19, this 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 therefrom. The distinction between a dicta and obiter is well known.
Obiter dicta is 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. (See Divisional
Controller, KSRTC v. Mahadeva Shetty)"
In view of above, it is well settled that obiter dictum is a mere observation or remark made by the
court by way of aside while deciding the actual issue before it. The mere casual statement or
observation which is not relevant, pertinent or essential to decide the issue in hand does not
form the part of the judgment of the Court and have no authoritative value. The expression of the
personal view or opinion of the Judge is just a casual remark made whilst deviating from
answering the actual issues pending before the Court. These casual remarks are considered or
treated as beyond the ambit of the authoritative or operative part of the judgment.

CHAPTER III SIGNIFICANCE OF OBITER DICTA

A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the
case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law
issues, are obiter dicta. Obiter dicta (often simply dicta,' or obiter) are remarks or observations
made by a judge that, although included in the body of the court's opinion, do not form a
necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited
to, words "introduced by way of illustration, or analogy or argument". Unlike ratio decidendi,
obiter dicta are not the subject of the judicial decision, even if they happen to be correct
statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether a
judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether the
19 (2006) 5 SCC 167
7 | Page

decision would have been different, had the statement been omitted. If so, the statement is crucial
and is ratio; whereas if it is not crucial, it is obiter.
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 or her ruling, provides a
hypothetical set of facts and explains how he or she believes the law would apply to those facts.
In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the
opinions from prior cases, with or without acknowledging the quoted passage's status as obiter
dicta. A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent
case, depending on what the latter court actually decided and how that court treated the principle
embodied in the quoted passage.
The law of precedent is based upon what the common law describes as the ratio decidendi of a
judgment. This is to say that it is the reason for which a particular judgment has been delivered
which forms the fulcrum for being followed in a subsequent decision. Thus the law requires the
judge to chisel out the "the reason or the rationale for the decision" and this reason alone has to
be followed. What remains in a judgment is called as obiter dictum i.e. any observations which
may have been made by the Court in passing a judgment but does not constitute the reason for
passing the said judgment.
On this common law principles, the law has evolved that a judgment is an authority (i.e.
requiring it to be followed) for what it decides and not what can be logically deduced. It is on
this principle that the judges maintain a parity by deciding the fulcrum reasoning in a judgment
so as to consider the same as precedent and follow it in the subsequent judgment.
As far as the law in India is concerned, the same position applies. The Supreme Court in Union
of India v. Dhanwanti Devi20 explained this position law in the following terms;
20 (1996) 6 SCC 44
8 | Page

Before adverting to and considering whither solatium interest would be payable under the Act, at
the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Kishan
Khoslas case is not a binding precedent nor does it operate as ratio decidendi to be followed as a
precedent and per se per incuriam. It is not everything said by a Judge who giving judgment that
constitutes a precedent. The only thing in a Judges 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 contain
three basic postulates i.

findings of material facts, is the inference which the Judge draws from the direct, or

ii.

perceptible facts;
statements of the principles of law applicable to the legal problems disclosed by the facts;

iii.

and
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 decision is its ratio and not every observation found therein not what
logically follows from the various observations made in the judgment. Every judgment must be
read as applicable to the particular facts 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 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.

9 | Page

Therefore, in order to understand and appreciate the binding force of a decision 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 in the use of precedents.
The above enunciation of law holds good generally and particularly. However the position is
slightly modified as far as the judgment of the Supreme Court of India are concerned in the wake
of Article 141 of the Constitution. This provision declares that the law declared by the Supreme
Court is binding on all courts and authorities in India. Thus increasing the scope of the binding
nature of its decisions, it has been construed that not just the ratio but even the obiter of a
Supreme Court judgment is binding on the High Court and all authorities of India.
The Bombay High Court in Popcorn Entertainment Corporation v. The City Industrial
Development Corporation examined this position of law to declare that even the obiter of the
Supreme Court would be binding on the High Courts. The High Court, to reach this conclusion,
made a survey of the various earlier decisions to note as under;
There are numerous judgments of the Supreme Court on both sides of watershed those
prescribing that even the obiter dicta of the Supreme Court is binding on other courts and
those proscribing the enforcement of obiter dicta (see Raval and Co. v. K.G.Rama
Chandran21, ADM, Jabalpur v. Shivkant Shukla22, Sreenivasa General Traders v. State of
AP23, Amar Nath Om Prakash v. State of Punjab 24, ONGC v. Western Co. of North

21 AIR 1974 SC 818

22 AIR 1976 SC 1207
23 AIR 1983 SC 1246
24 AIR 1985 SC 218
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America25, MCD v. Gurnam Kaur26, Sanjay Dutt v. State through CBI, Bombay27,
Director of Settlements, AP v. M.R.Appa Rao 28, Nathi Devi v. Radha Devi Gupta29, State
of Haryana v. Ranbir30,and Oriental Insurance Co. Ltd. v. Meena Varial31.
Generally, even an obiter dictum is expected to be obeyed and followed. Some times well
considered obiter dicta of the Supreme Court is taken as precedent, but every passing expression
of a judge cannot be treated as an authority [see Saiyada Mossarat v. Hindusthan Steel Ltd.,
Bhilai Steel Plant32].
Although, under the traditional doctrine of precedent, an obiter dictum has no binding force, it
may nevertheless be held entitled to have great weight. General observations which are in the
penumbral regions of the ratio have great weight when the point has been argued and deliberated
on by the judges though not strictly required in the case. With the gradual erosion of the
distinction between ratio and obiter the practice has gained ground for treating even the obiter
dicta of the Supreme Court binding on the High Court.
The Supreme Court while holding that obiter had only persuasive value observed in Srinivasa
General Traders v. State of A.P.33,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
25 AIR 1987 SC 674
26 AIR 1989 SC 38
27 (1994) 5 SCC 402
28 AIR 2002 SC 1598
29 (2005) 2 SCC 271
30 AIR 2006 Sc 1796
31 (2007) 5 SCC 428)
32 (1989) 1 SCC 272
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found there are not intended to be expositions of the whole law but governed or qualified by the
particular facts of the case in which such expressions are to be found. In Prethipal Singh Bedi v.
Union of India34, the Supreme Court held that observations made on questions not specifically
arising for decision, but discussed are entitled to respect by succeeding bench of the Supreme
Court, though observations are obiter.
The Calcutta High Court also had similarly ruled that even the obiter dicta of the Supreme Court
are binding (see Aswini Kumar Roy v. Kshitish Chandra Sen Gupta 35). In fact, the Calcutta High
Court has even asserted that so long as the Supreme Court decision holds the filed it will not be
open to the High Court to go against it on the footing that a particular aspect was not considered
in the judgment. The Gujarat High Court also held that the obiter dicta of the Supreme Court are
in the same category as ratio decidendi for the purposes of Article 141. The M.P. High Court has
also taken the view that the obiter dicta of the Supreme Court are binding on all the
courts (Narbada Prasada v. Awadesh Narain36). The Kerala High Court has held in State of Kerala
v. Parameshwaran Pillai37, that judicial propriety demands that even the obiter dictum of the
Supreme Court should be accepted as binding.
Be that at it may, the Andhra Pradesh High in Bhagavati saran v. State of U.P. 38,has moved to the
other end of the spectrum by saying that a decision of the Supreme Court cannot be disregarded
on the ground that no ratio decidendi is discernible. Thus, many of the High Courts are inclined
to bring obiter dicta of the Supreme Court within the purview of Article 141. The Punjab High
Court has also held that the obiter of the Supreme Court is binding if it lays down a point of law.
33 (1983) 4 SCC 354:AIR 1983 SC 1246
34 (1982) 3 SCC 140:AIR 1982 SC 1413
35 AIR 1971 Cal 252
36 AIR 1973 MP 179
37 1974 Ker LT 617
38 AIR 1961 SC 931
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It is fair summary to say that judicial dicta overwhelmingly support the binding nature of obiter
dicta in the context of Article 141. The Supreme Court in Kausalya Devi Bogra v. Land
Acquisition Officer39, has pointed out that the judicial decorum and discipline require that the
directions of the Supreme Court should be taken as binding on subordinate courts. In case of
Narinder Singh v. Surjit Singh40,the Supreme Court has observed that when the decision of the
Supreme Court in certain respect as was not to the liking of the judge of the High Court when his
own decision was set aside by the Supreme Court and such a decision becomes the law of the
land and it is the duty of everyone including the High Court to obey the order and not try to
avoid it.
As already stated hereinabove, so far as categorical and unequivocal observations made by the
Apex Court revolving around the issues relating to non-observation of rule and regulations
causing substantial loss to the CIDCO since no tenders were invited and interpretation of section
23 of the Contract Act are concerned, they operate as obiter binding on us as such we have to fall
in line with the view expressed by the Apex Court.
Therefore it is quiet clear that while the traditional rule is undoubtedly that only the ratio of a
decision is binding, the law has developed significantly and particularly in the context of the
Article 141 of the Constitution to the effect that even a obiter dictum of a judgment of Supreme
Court is binding on the High Court and all other authorities of the country. They cannot be
disowned by the observation that they are not the ratio of the decision.

Persuasive precedent
A previous decision which does not have to be followed by the judge in a later case.Although the
judge is not bound to follow the previous decision because it is only persuasive and not binding,
he or she may be influenced by it and'persuaded' that the legal principles referred to should be
followed.It is important to appreciate that persuasive precedent comes from a number of different
sources:

39 (1984) 2 SCC 324: AIR 1984 SC 892

40 (1984) 2 SCC 402: AIR 1984 SC 1359,
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Courts lower in the hierarchy

This can be illustrated by the case of R v R41 where the Court of Appeal decided that a man
could be guilty of raping his wife and the House of Lords followed the same legal reasoning and
agreed with the Court of Appeal's decision although the House of Lords being higher in the
hierarchy than the Court of Appeal were not bound to follow the decision.

Decisions of the Judicial Committee of the Privy Council

The decisions of the Privy council are not binding as the court is not part of the court hierarchy.
Its decisions are merely persuasive. In practice many of the judges which make up the Judicial
committee of the Privy council are judges of the House of Lords, so its decisions are considered
to be important and worthy of consideration and it is not unusual for them to be followed.

Obiter dicta
This simply means 'other things said' by the judge as part of his or her judgment.The judge will
sometimes speculate on what his decision might have been had the facts of the case been
different. It is not always easy to separate the 'Ratio decidendi' from the 'obiter dicta' in the
judgment, as the judgment may consist of many pages and there are no headings labelling which
part of the judgment consists of the 'ratio' and that part which constitutes the 'obiter dicta' part.
Such Obiter comments are merely persuasive and cannot from part of the ratio decidendi
or binding precedent.
This principle is very well illustrated by the case of R v Howe42 which concerned the law of
duress in respect of a criminal charge. In this case the House of Lords ruled that duress could
never be a defence to a charge of murder. The House of Lords then went on to comment (in the
obiter part of the judgment) that duress could never amount to a defence to a charge of attempted
murder.

41 [1991]
42 [1986]
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In R v Gotts43 a young boy defendant raised the defence of duress to a charge of attempted
murder of his mother. The Court of Appeal were 'persuaded' by the reasoning in the obiter
comments of the House of Lords in the earlier decision of R v Howe and decided to follow it.

Dissenting judgments
This arises where a case has been decided not by a unanimous decision but by a majority of the
judges ( for example 3-2 or 2-1). The judge who disagrees with the majority will set out their
legal reasoning for their decision in a dissenting judgment. In the event of an appeal, the higher
court for example the house of Lords may be 'persuaded' by the reasoning of the dissenting
judgment and give a ruling which reflects their preferred reasoning.

Decisions of courts in other countries

This particulary applies to Commonwealth countries such as Australia, New Zealand and Canada
as their legal systems have evolved in a very similar way to our own.

Obiter dicta in the UK

Under the doctrine of stare decisis, statements constituting obiter dicta are not binding, although
in some jurisdictions, such as England and Wales, they can be strongly persuasive. For instance,
in the High Trees case,44 Judge Denning was not content merely to grant the landlord's claim, but
43 (1992)
44 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
15 | P a g e

added that had the landlord sought to recover the back rent from the war years, equity would
have estopped him from doing so. Since the landlord did not wish to recover any back rent,
Denning's addition was clearly obiter, yet this statement became the basis for the modern revival
of promissory estoppel. Similarly, in Hedley Byrne & Co Ltd v Heller & Partners
Ltd45, the House of Lords held, obiter, that negligent misstatement could give rise to a claim
for pure economic loss, even though, on the facts, a disclaimer was effective in quashing any
claim. Also, in Scruttons Ltd v Midland Silicones Ltd46 Lord Reid proposed that while doctrine
of privity of contract prevented the stevedores in this instance from benefiting from protection of
an exemption clause, in future such protection could be effective if four guidelines (which he
went on to list) were all met. In Carlill v Carbolic Smoke Ball Company4748 (a case whether a
woman who had used a smoke ball as prescribed could claim the advertised reward after
catching influenza), Bowen L.J. said:

"If I advertise to the world that my dog is lost, and that anybody who brings the do

This dog analogy is clearly obiter, as the case is about smoke balls, not lost dogs.
The concept of "Dicta" has been discussed in Halsbury's Laws of England49, as thus:
"Dicta. Statements which are not necessary to the decision, which go beyond the occasion
and lay down a rule that it is unnecessary for the purpose in hand are generally termed
"dicta". They have no binding authority on another court, although they may have some
persuasive efficacy. Mere passing remarks of a judge are known as "obiter dicta", whilst
considered enunciations of the judge's opinion on a point not arising for decision, and so
45 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
46 Scruttons Ltd v Midland Silicones Ltd 1961]UKHL 4, [1962] AC 446
47 Carlill v Carbolic Smoke Ball Company [1893] 2 QB 256
48 Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
49 Fourth Edition (Reissue), Vol. 26, para. 574
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not part of the ratio decidendi, have been termed "judicial dicta". A third type of dictum
may consist in a statement by a judge as to what has been done in other cases which have
not been reported. Practice notes, being directions given without argument, do not have
binding judicial effect. Interlocutory observations by members of a court during
argument, while of persuasive weight, are not judicial pronouncements and do not decide
anything."

Obiter dicta in the US

Obiter dicta can be influential. One example in United States Supreme Court history is the 1886
case Santa Clara County v. Southern Pacific Railroad. A passing remark from Chief
Justice Morrison R. Waite, recorded by the court reporter before oral argument, now forms the
basis for the doctrine that juristic persons are entitled to protection under the Fourteenth
Amendment. Whether or not Chief Justice Waite's remark constitutes binding precedent is
arguable, but subsequent rulings treat it as such.
In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the
case at hand but might be useful in future cases. The most notable instance of such an occurrence
is the history of the famous Central London Property Trust Ltd v High Trees House Ltd 50
to United States v. Carolene Products Co.51, which while rejecting use of the Due Process
Clause to block most legislation suggested that the clause might be applied to strike down
legislation dealing with questions of "fundamental right". This obiter dictum is generally
considered to have led to the doctrine of strict scrutiny (and subsequently intermediate scrutiny)
in racial-, religious-, and sexual-discrimination cases, first articulated in Korematsu v. United
States.52
In United States legal terminology, a dictum (plural dicta) is a statement of opinion considered
authoritative (although not binding), given the recognized authoritativeness of the person who
50 [1947] KB 130
51 (1938)
52 (1944).
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pronounced it. There are multiple subtypes of dicta, although due to their overlapping nature,
legal practitioners in the U.S. colloquially use dictum to refer to any statement by a court the
scope of which extends beyond the issue before the court. Dicta in this sense are not binding
under the principle of stare decisis, but tend to have a strong persuasive effect, by virtue of
having been stated in an authoritative decision, or by an authoritative judge, or both. These
subtypes include:
a. dictum proprium: A personal or individual dictum that is expressed by the judge who
delivers an opinion but that is not necessarily concurred in by the whole court and that is
not essential to the disposition of the case.
b. gratis dictum: an assertion that a person makes without being obligated to do so, or a
court's discussion of a point or question not raised by the record, or its suggestion of a
rule not applicable in the case at bar.
c. judicial dictum: an opinion by a court on a question that is directly involved, briefed, and
argued by counsel, and even passed on by the court, but that is not essential to the
decision.
d. obiter dictum in Latin means "something said in passing" and is a comment made while
delivering a judicial opinion, but it is unnecessary to the decision in the case and
therefore not precedential (although it may be considered persuasive).

Dissenting judgments or opinions

The arguments and reasoning of a dissenting judgment (as that term is used in the United
Kingdom53 and Australia54) or dissenting opinion (the term used in courts in the United States)
also constitute obiter dicta. These, however, might also be cited should a court determine that its
previous decision was in error, as when the United States Supreme Court cited Justice Oliver

53 "Dissent". Law Mentor. Retrieved February 6, 2014.

54 Coper, Michael; Blackshield, Tony; Williams, George (2007). The Oxford Companion to the

High Court of Australia. Oxford University Press. ISBN 9780195540222. OCLC 836967805.
Retrieved February 6, 2014.
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Wendell Holmes, Jr.'s dissent in Hammer v. Dagenhart when it overturned Hammer in United
States v. Darby Lumber Co.
In Shaw v DPP [1962] 55 a publisher of the "Ladies Directory" (a guide to London prostitutes)
was convicted of "conspiracy to corrupt public morals". He appealed on the grounds that no such
offence existed. The House of Lords dismissed the appeal, in effect creating a new crime.
Viscount Simonds said: "...there remains in the Courts of Law a residual power ... to conserve the
moral welfare of the State, and ... guard it against attacks which may be the more insidious
because they are novel and unprepared for." In a dissenting judgment, Lord Reid said:
"Parliament is the proper place, ... to [create new criminal laws]. Where Parliament fears to tread
it is not for the courts to rush in." Subsequently, Lord Reid was the leading judge in Knuller v.
DPP,56 a case on obscene libel where a publisher was charged with "conspiracy to corrupt public
morals". In this case, Lord Reid said he still disagreed with the decision in Knuller, but in the
interests of certainty he would not overturn Knuller.

Semble
Akin to obiter is the concept of semble (Norman French for "it seems"). In Simpkins v
Pays [1955],57 a grandmother, granddaughter and a lodger entered into weekly competitions in
the Sunday Empire News. Each week, all three women together made a forecast and each
contributed to the cost of entry; but it was the grandmother's name that was on the coupon. The
grandmother received 750 in prize money and refused to share it with the other two. The lodger

55 Shaw v DPP [1962] AC 220 House of Lords

56 Knuller (Publishing, Printing and Promotions) Ltd. v. DPP [1973] A.C. 435 at 456, 56

Cr.App.R. 633 at 637

57 'Simpkins v Pays' [1955] 1 WLR 975 Queen's Bench Division
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successfully sued for one third of the prize money; but Sellers J added semble that the
granddaughter should also get 250 (even though she was not a party to the action).

CHAPTER IV BINDING FORCE OF SUPREME COURT

The union judiciary article 141 describes binding force of law declared by Supreme Court that;
the law declared by the Supreme Court shall be binding on all courts within the territory of
India. It means only the law declared by the Supreme Court which was necessary for the
determination of the case would be binding in nature not the opinion of the court on the question
which was not necessary to decide the case. To understand this situation let me explain word
Ratio Decidendi and Obiter Dicta:

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Ratio Decidendi means the reason or the rationale for the decision. The ratio decidendi is
the point in a case which determines the judgment or the principle on which the case
establishes. The process of determining the ratio decidendi is a correct thoughtful analysis of
what the court actually decided essentially, based on the legal points about which the parties in
the case actually fought.
All decisions are, in the common law system, decisions on the law as applied to the facts of the
case, therefore, ratio decidendi is one of the most powerful tool, with a proper understanding of
the ratio of a precedent, one can force a lower court to come to a decision which that court may
otherwise be unwilling to make, considering the facts of the case.
Obiter Dicta means other things that are said, that is, a statement in a judgment that is said in
passing All other statements about the law in the text of a court opinion or all pronouncements
that do not form a part of the courts rulings on the issues actually decided in that particular case
are obiter dicta, and are not rules for which that particular case stands.
The distinction between the ratio decidendi and obiter dictum has been very beautifully
explained by Chagla C.J. in the case of Mohandas Issardas v. A. N. Sattanathan 5859, in the
following words an obiter dictum is an expression of opinion on a point which is not
necessary for the decision of a case. This very definition draws a clear distinction between a
point which is necessary for the determination of a case and point which is not necessary for the
determination of the case. But in both cases points must arise for the determination of the
Tribunal. Two questions may arise before a court for its determination. The court may determine
both although only one of them may be necessary for the ultimate decision of the case. The
question which was necessary for the determination of the case would be the ratio decidendi;
the opinion of the Tribunal on the question which was not necessary to decide the case would be
only an obiter dictum. So it would be incorrect to say that every opinion of the Supreme Court
would be binding on the High Courts in India. The only opinion which would be binding would
be an opinion expressed on a question that arose for the determination of the Supreme Court.
58at page 1160
59 Knuller (Publishing, Printing and Promotions) Ltd. v. DPP [1973] A.C. 435 at 456, 56

Cr.App.R. 633 at 637

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CHAPTER V: CONCLUSION
As per the above discussion it clearly says that Courts may consider obiter dicta in opinions of
higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower
courts. The obiter dicta is usually translated as "other things said", but due to the high number of
judges and several personal decisions, it is often hard to distinguish from the ratio decidendi
(reason for the decision). For this reason, the obiter dicta may usually be taken into
consideration.
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Bibliography
Book

Black's Law Dictionary

Reid-Rambo, Teresa, and Leanne J. Pflaum. "Chapter 5: Sources of Law; Reading and
Interpreting Cases." Legal Writing by Design: A Guide to Great Briefs and Memos.
Durham, NC: Carolina Academic, 2013. 85. Print.

Halsbury's Laws of England Fourth Edition (Reissue), Vol. 26, para. 574

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Websites Referred:

http://www.legalserviceindia.com/

http://law.uiowa.edu/

http://papers.ssrn.com/

http://www.probonoinst.org/

http://www.manupatrafast.com/

http://www.law2.byu.edu/

https://en.wikipedia.org

http://www.lawyersclubindia.com

http://india.gov.in/knowindia/state_uts.php

http://www.hindu.com

http://www.lawyerscollective.org

http://www.altlawforum.org

http://www.pilsarc.org

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