Ratio Decidendi and Obiter Dicta
Chapter Seventeen
Syllabus topic 1, "Nature of judicial process"
Pages 71 to 74 of 356
In one line
Only a small part of a judgment is law; the rest is explanation, illustration and opinion, and telling the two apart is the central skill of using precedent.
In the wording a student can write in an exam: the ratio decidendi is the reason for deciding: the principle of law which the court applied to the material facts and on which the decision actually rests. It alone binds later courts. An obiter dictum is a thing said by the way: a statement of law in the judgment which was not necessary for the decision, or which was made on facts that were not before the court. Obiter has persuasive force and no binding force.
Why the distinction exists
A judgment is written to explain a decision to the parties, to the profession and to the appellate court. In explaining, a judge ranges: he states the history of the doctrine, considers arguments he rejects, illustrates with situations not before him, and sometimes says what he would decide in a different case.
If all of that bound later courts, three things would follow, all bad. The law would grow by accident, because a stray observation would become a rule. Judges would write cautiously and unhelpfully to avoid creating law they did not intend. And the parties, who alone were heard, would be the only people whose arguments had shaped a rule that binds everybody.
So the system binds only what was necessary to decide the case that was actually argued.
How to find the ratio
There is no mechanical test, and an examiner will credit a student who says so and then gives the working methods.
Method one: the material facts test. Identify the facts the court treated as material, and the decision it reached on them. The ratio is the rule that connects the two. Facts the court treated as immaterial, by ignoring them or by saying they do not matter, are excluded. This is the standard approach.
Method two: the reversal test. Ask whether, if the proposition were reversed, the decision would have had to be different. If yes, it is ratio. If the decision would have been the same anyway, it is obiter. This is the most useful practical test.
Method three: read the court's own signals. Judges often say "it is not necessary for us to decide", which marks obiter, or "we hold", which usually marks ratio. The signals are helpful and not conclusive.
Complications, which MU's questions reward.
- Multiple judgments. Where several judges concur in the result for different reasons, the ratio is what a majority agreed on. Where no reasoning commands a majority, there may be no discoverable ratio, which happened in Shayara Bano v. Union of India, AIR 2017 SC 4609.
- Alternative grounds. If a court gives two independent reasons, the better view is that both are ratio, since neither is unnecessary in the sense of being uncalled for.
- Wider and narrower formulations. A ratio can usually be stated at several levels of generality, and choosing the level is the work of the later court. This is where distinguishing lives.
Ratio Decidendi and Obiter Dicta
The Indian illustrations
Shayara Bano v. Union of India, AIR 2017 SC 4609, is the best case for showing why finding a ratio is hard.
Facts. The petitioner sought a declaration that talaq-e-biddat, by which a Muslim husband may divorce his wife by pronouncing talaq three times at once, abruptly, unilaterally and irrevocably, was void and unconstitutional, and that it was not protected by section 2 of the Muslim Personal Law (Shariat) Application Act 1937.
Held. By three to two the practice was set aside, and the majority did not reason alike. Two judges held it manifestly arbitrary and therefore violative of Article 14, applying the arbitrariness doctrine. A third held it was not an essential religious practice and was bad in personal law itself. The two dissenting judges held that it was protected personal law under Article 25 and that the remedy lay with the legislature.
Why it matters here. The result is clear and the ratio is not. Only two of five judges rested on manifest arbitrariness, so that reasoning did not command a majority. Later courts have had to decide how much of it binds, which is exactly the problem the ratio and obiter distinction poses in real practice.
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, is the best case for showing obiter becoming doctrine.
Facts. A senior member of the Indian Administrative Service, appointed Chief Secretary of Tamil Nadu, was moved to posts he said were inferior, alleging that the transfers were mala fide because he had displeased the Chief Minister, and complaining of a breach of Articles 14 and 16.
Held. The petition failed on the facts, the mala fides being unproved. In reasoning, the Court held that equality is a dynamic concept that cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that from a positivistic point of view equality is antithetic to arbitrariness; and that equality and arbitrariness are sworn enemies, so that an arbitrary act is implicitly unequal and violates Article 14.
Why it matters here. The petitioner lost. On the reversal test, the arbitrariness doctrine was not necessary to the decision, because the case failed for want of proof. Strictly, it was obiter. It is now the operative test of Article 14, applied by the majority in Shayara Bano to strike down a practice. Obiter of a superior court, repeated and relied on, becomes law in fact whatever the theory says.
Ratio Decidendi and Obiter Dicta
A worked example
A Supreme Court judgment holds that a dismissal without a hearing is void. In the course of it, the Court observes that the same principle would apply to the cancellation of a licence, no licence being before it.
What binds. The proposition about dismissal without a hearing. Reverse it and the appeal would have gone the other way, so it is ratio.
What does not bind. The observation about licences. Reverse it and the decision is unchanged, so it is obiter.
What a High Court will do next year with a licence case. It will cite the observation, note that it is obiter, say that it is a considered view of the Supreme Court entitled to great weight, and follow it. Within a decade the proposition will be cited as though it were ratio, and nobody will check.
The lesson. The distinction is legally exact and practically porous, and an answer should say both.
Distinctions
| Ratio decidendi | Obiter dictum | |
|---|---|---|
| Meaning | the reason for deciding | a thing said by the way |
| Necessary to the decision | yes | no |
| Binding on lower courts | yes | no, persuasive only |
| Test | reverse it: would the result change? | reverse it: the result stands |
| Typical source | the rule applied to the material facts | illustrations, hypotheticals, rejected arguments, wider statements |
| Practical force in India | binding | very high, and often followed as if binding |
What beginners get wrong
"The ratio is the conclusion." The conclusion is who won. The ratio is the rule of law that made them win.
"Anything the judge says about law is ratio." Only what was necessary on the material facts.
"Obiter is worthless." Obiter of the Supreme Court is followed as a matter of course by High Courts, and Royappa shows it becoming the governing test.
"Every judgment has one ratio." Multiple judgments may yield none that commands a majority, as in Shayara Bano.
Quick revision
- Ratio decidendi: the principle applied to the material facts, on which the decision rests. It binds.
- Obiter dictum: a statement not necessary to the decision. Persuasive only.
- Finding the ratio: the material facts test, the reversal test, and the court's own signals.
- Complications: multiple judgments, alternative grounds, and the level of generality at which the ratio is stated.
- Shayara Bano, AIR 2017 SC 4609: a clear result with no ratio commanding a majority.
- Royappa, AIR 1974 SC 555: the arbitrariness doctrine was strictly obiter in a petition that failed, and is now the governing test of Article 14.
- The distinction is exact in theory and porous in practice, because the obiter of a superior court is followed.
Ratio Decidendi and Obiter Dicta
Test yourself
1. Define both terms and give the practical test for telling them apart. The ratio decidendi is the principle of law applied to the material facts and on which the decision rests, and it binds. An obiter dictum is a statement of law not necessary to the decision, and it persuades only. The practical test is reversal: if reversing the proposition would have required a different result, it is ratio; if the result would have stood anyway, it is obiter.
2. Why does the system bind only the ratio? Because a judgment ranges beyond what was decided, so binding all of it would let law grow by accident from stray observations, would make judges write cautiously and unhelpfully, and would bind everybody by reasoning shaped only by the arguments of the two parties who happened to be heard.
3. Why is Shayara Bano difficult on this distinction? Because three judges formed the majority for a single result by two different routes: two held the practice manifestly arbitrary under Article 14 and one held it not an essential religious practice. No single line of reasoning commanded a majority, so what binds is genuinely uncertain, and later courts have had to decide how much of the arbitrariness reasoning carries.
4. Explain how Royappa shows the practical weakness of the distinction. The petitioner lost for want of proof, so the proposition that arbitrariness violates Article 14 was not necessary to the decision and was strictly obiter. It was nonetheless repeated, relied on, and is now the operative test of Article 14, applied by the majority in Shayara Bano. Obiter of a superior court becomes law in fact, whatever the theory provides.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.