20 Jun 2019 11:41 AM GMT
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...
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 making power.
What is being talked about here is that it is incumbent upon a judge and a lawyer or a legal academic to utilise 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 moulded without 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 the ratio.
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 so.
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.Imagine that 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 Elisabeth's land.
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 domesticated.
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 co-plaintiffs.
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 prescriptive ratio, 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 Stevenson 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., 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 generalisation'. 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 approaching correctness.
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 in Article 141 that 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, realising that theory of precedent and mandate of Article 141 of the Constitution of India requires 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 Circle it 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 under consideration.
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 under article 141 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 under article 226 or 227 of constitution and not in exercise of original jurisdiction under article 226 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 assailability and substantiality of 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 "obiter dicta", as follows:
The expression obiter dicta 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 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."
In State of Haryana v. Ranbir, (2006)
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 obiter is 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 on 9 January, 2007.
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.
(Author is the Central Govt. Standing Counsel at Delhi High Court)
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