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Lectures by Dr. Tabrez Ahmad

Lectures by Dr. Tabrez Ahmad

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  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR
  • Dr. Tabrez Ahmad, KLS KIIT, BBSR

Transcript

  • 1. Legal MethodLaw logic and reasoning Determining the Ratio Decidendi of a case Dr. Tabrez Ahmad, 1 technolexindia.blogspot.com
  • 2. Determining Ratio of a case• 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 application. 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. Dr. Tabrez Ahmad, 2 technolexindia.blogspot.com
  • 3. • 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 facts" found by the precedent judge, he suggests that the better way to approach the problem is to elucidate the ratio of a case from the facts themselves rather than from the principle enunciated by the Cour. Dr. Tabrez Ahmad, 3 technolexindia.blogspot.com
  • 4. • Julius Stone challenges Goodhart 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 courts 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 judgment, requiring us to choose a particular, that is, binding ratio decidendi. In other words, Stones argument is that Goodharts theory yields indeterminate results because the "principle" derivable from a case by the Goodhart method of "material facts plus decision" is entirely dependent on the level of generality at which one chooses to describe the facts. Dr. Tabrez Ahmad, 4 technolexindia.blogspot.com
  • 5. • In this context R. Cross defines "the ratio decidendi of a case" as "any rule of law considered necessary by the Judge for the decision of the case: it is that part of the decision which has binding effect and the facts of the case play a large part in its identification". Hence, all other statements of law are obiter dicta. Now, the word "necessary" is used in the sense of "essential to the working of a judicial system". It seems Cross supports Goodhart. And a binding principle may be sketched as follows. Dr. Tabrez Ahmad, 5 technolexindia.blogspot.com
  • 6. • Where the facts are a, b, c, d, e, g and a reported decision is P, the decision is said to be based on the rule that whenever A, B, C then X should be decided. Here the lower case letters stand for the particular circumstances of the case and capital letters for general properties of facts so that a is an instance of A, etc. Thus the ruling in P can be summarised as:• P: a, b, c, d, e, g/A.B.C X. Dr. Tabrez Ahmad, 6 technolexindia.blogspot.com
  • 7. • The novel case, N, is a case of a1, b1, c1, 1, (i.e. not — e1), f1 and it is governed by P, which is binding on the court. Now, in case the court decides to follow P, its ruling will be:• N: a1, b1, c1, d1, 1, f1, /A.B.C X.• In spite of some difficulties Goodharts definition of ratio decidendi may be taken as a working rule. According to him the ratio is equated with the material facts of the case plus the decision thereon. And the rules for finding the ratio or principle may be summed up as follows:• (1) The principle of a case is not found in the reasons given in the opinion. Dr. Tabrez Ahmad, 7 technolexindia.blogspot.com
  • 8. • (2) The principle is not found in the rule of law set forth as the opinion.• (3) The principle is not necessarily found by a consideration of all the ascertainable facts of the case, and the Judges decision.• (4) The principle of the case is found by taking account• (a) of the facts treated by the Judge as material, and• (b) his decision as based on them.• (5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the Judge, for the principle may depend as much on exclusion as it does on inclusion. Dr. Tabrez Ahmad, 8 technolexindia.blogspot.com
  • 9. • Goodhart himself mentions that his definition suffers from two infirmities. The first is that the facts are "infinitely various", though the material facts are strictly limited. Thus the consideration in a contract is a single material fact but the kinds of consideration are unlimited. Secondly, it may happen that the facts, stated by the Judge to be real and material, can be actually non-existent. This is a hypothetical case. It may be pointed out that the whole doctrine of precedent is based on the theory that generally Judges do not make mistakes either of fact or of law. In other words a decision given per incuriam is an exception that confirms the general rule. A case may be wrongly decided or decided for the wrong reason. As pointed out by Simpson: "The ratio of a case is only binding if it is not inconsistent with statute, or inconsistent with the ratio of another decision. Dr. Tabrez Ahmad, 9 technolexindia.blogspot.com
  • 10. • Now cases may differ according as they contain a single opinion or several opinions. The determination of the ratio decidendi becomes easier if there is only a single opinion or all the opinions are in agreement. In case the several judgments agree in the result, but differ in the material facts on which they are based the principle is limited to the sum of all the facts considered material by the various judges. Thus a case involves facts A, B and C and the defendant is held liable. The first judge finds that fact A is the only material fact, the second that B is material, the third that C is material. The principle of the case is therefore, that on the material facts A, B and C the defendant is liable. If, however, two of the three judges had agreed that fact A was the only material one and that the others were immaterial, then the case would be a precedent one on this point, though the third Judge had held that the facts B and C were material ones. Dr. Tabrez Ahmad, 10 technolexindia.blogspot.com
  • 11. • This may sound too mechanical and may be seen in the case of Golak Nath v. State of Punjab, as decided by the Indian Supreme Court.• Five judgments were delivered in the Golaknath case by (1) the Subba Rao block of Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ.; (2) Hidayatullah, J.; (3) the Wanchoo block of Wanchoo, Bharagava and Mitter, JJ.; (4) Bachawat, J; and (5) Ramaswami, J. They may be reduced to three if the joint dissenting judgments of the Wanchoo block are equated with the separate dissenting judgments of (4) and (5). And the position would be like this: the Subba Rao block of five; the Wanchoo block of five; and the lone judgment of Hidayatullah, J. Six propositions seem to have been laid down by the judgments as follows: Dr. Tabrez Ahmad, 11 technolexindia.blogspot.com
  • 12. • (a) Parliament cannot amend Part III of the Constitution of India so as to "take away or abridge" the fundamental rights; (b) all amendments made prior to February 27, 1967 and affecting fundamental rights other than the "right to property" have full validity; (c) the effect of the first, fourth and seventh amendments on the "right to property", though made prior to February 27, 1967 remains valid and operative as part of the law of India; (d) the seventh amendment to Article 31-A(2) is similarly valid and operative; (e) the seventeenth amendment expanding the list of statutes in the Ninth Schedule is similarly valid and operative; and Dr. Tabrez Ahmad, 12 technolexindia.blogspot.com
  • 13. • (f) the impugned land reform legislation of Punjab and Mysore (Karnataka) is wholly valid. It is interesting to note how these propositions are established, (a) is held by the majority comprising (1) and (2); (b) is held by (2) only, though it necessarily follows from the view of the Wanchoo block comprising (3), (4) and (5); (c), (d) and (f) are held unanimously; and (e) is held by ten Judges with Hidayatullah, J. dissenting. And the question is how to extract a single ratio out of these judgments. The answer is that the tangle of five separate judgments cannot possibly yield any single ratio. As observed by R. Cross: Dr. Tabrez Ahmad, 13 technolexindia.blogspot.com
  • 14. • "The ratio decidendi is a conception peculiarly appropriate to a single judgment. Accordingly, it is probably impossible to avoid something in the nature of arbitrary rules to meet cases in which several judgments are delivered. The main trouble is that it is impossible to formulate these rules with anything like complete precision." Dr. Tabrez Ahmad, 14 technolexindia.blogspot.com
  • 15. • Three approaches may be considered in this connection. The first approach takes the phrase itself as a sufficient guide to the ratio. Thus in the Golaknath case one is to look for those propositions of law which were necessary and sufficient to base the "declaration" made by the Supreme Court. Article 141 uses the expression "declared" and this is explained by Subba Rao, C.J. thus: "The expression declared is wider than the words found or made. To declare is to announce opinion. Indeed the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land." Dr. Tabrez Ahmad, 15 technolexindia.blogspot.com
  • 16. • And what was necessary for the decision was the conjunction of the reasons given either (i) by the 5-man Subba Rao block and the 5-man Wanchoo block; or (ii) by the 5-man Subba Rao block and by Justice Hidayatullah; or (iii) by the 5-man Wanchoo block and by Justice Hidayatullah. On any of these hypotheses, two sets of reasons would be necessary; and the one wholly immaterial and this might be any one of the three. The Wanchoo block was in a minority in regard to proposition (a) and this does not mean that its reasons were not "necessary to the decision". However, these reasons can be ignored only on the ground that there was sufficient majority to base the decision without them. But this equally applies to either of the two sets of "majority" reasons. Dr. Tabrez Ahmad, 16 technolexindia.blogspot.com
  • 17. • The result is that the first supposed test of the ratio decidendi would lead to an insoluble choice amongst three pairs of sets of reasons with each pair comprising two different sets of ideas. In practice, of course, the choice is not wholly insoluble. It is evident that the reasons of the Wanchoo block are inconsistent with those of either the Subba Rao block or Justice Hidayatullah. But the last two reasonings are not necessarily inconsistent. Their compatibility tends to assume that these two judgments form the source of the ratio. Here one may hold with Chief Justice Centlivres in the South African case of Fellner v. Minister of the Interior, that even if a case has no apparent ratio decidendi, the actual "decision" is "binding". In the narrowest sense of "decision", this gives binding force only to proposition ( f); but on a wider meaning of "decision" all the propositions are binding. Dr. Tabrez Ahmad, 17 technolexindia.blogspot.com
  • 18. • The second approach may be formulated in terms of "counting heads". Here one simply adds up the number of Judges giving the propositions. Of course, the search is for a majority of the participating judges. Let us take a case with four views, p, q, r and s and in a court of 11 Judges — p is supported by 4 judges, q and r by 3 each, and s, by the remaining one. On a strict version of "counting heads" none of the four views would be established, since none had a clear majority. On the looser version p had more support than any of the others and it would be part of the ratio. But this violates Article 145(5) of the Indian Constitution, requiring that the "judgment" and "opinion" need be "delivered with the concurrence of a majority of the Judges present at the hearing of the case". Dr. Tabrez Ahmad, 18 technolexindia.blogspot.com
  • 19. • As observed by Greenbery S.A. in the Fellner case: "The object of the enquiry is to ascertain what is the ratio decidendi and not what are the opinions of Judges. Insofar as the law is built up by judicial (precedent), it is not built up on a counting of heads of all the members of the Court. It is in the reasons of the majority of the Court for the order that the ratio decidendi is to be sought, the reasons of the dissenting Judges being irrelevant for this purpose" In this context, "counting heads" in its looser version would help us only as to the acceptance of "prospective overruling". Dr. Tabrez Ahmad, 19 technolexindia.blogspot.com
  • 20. • The third approach may be termed "the majority of the majority". If the Golaknath decision is proposition (a), it is supported by 6 of the 11 Judges and 5 support it for identical reasons. By equating the ratio with the reasons given by "the majority of the majority", Golaknath is confined to the single judgment delivered by Chief Justice Subba Rao with Justice Hidayatullah concurring with him. And the difficulties involved in extracting a ratio from Golaknath lead one to prefer a pragmatic approach to precedent — construction to rationes Dr. Tabrez Ahmad, 20 technolexindia.blogspot.com
  • 21. Legal MethodAnalysing of the "Common Cause Dr. Tabrez Ahmad, 21 technolexindia.blogspot.com
  • 22. • The "Common Cause" is a registered Society. Under Article 32 of the Indian Constitution the Common Cause and three retired government servants asked for striking down certain provisions of the Commutation of Pension Rules applicable to civilian and defence pensioners, since they permit the Union of India to recover more than what is paid to the pensioners upon commutation. Besides, the petitioners sought for a direction asking the Government to rationalise its scheme of commutation. The Single Judge of theSupreme Court has delivered two judgments — one relating to the civilian employees and the other relating to the defence personnel — and tried to make it a single judgment. Dr. Tabrez Ahmad, 22 technolexindia.blogspot.com
  • 23. • During the course of the hearing the Union Government agreed to restore the commuted portion of the pension in respect of "all civilian employees at the age of 70 years or after 15 years whichever is later". The facts are: (1) commutation makes available a lump sum to a pensioner; (2) there is the risk factor involved in case the pensioner dies before full recovery; (3) some Governments including State and Union have formulated a 15-year rule for restoration of the commuted pension; and (4) the 15-year formula is not justifiable because it permits recovery of more than the dues. The court has considered facts (1), (2) and (3) as material and ignored fact (4) in coming to the decision that restoration would take place on the expiry of 15 years from retirement. But this decision is given per incuriam, since it abets "unjust enrichment" banned by Section 70 of the Indian Contract Act, 1872. Dr. Tabrez Ahmad, 23 technolexindia.blogspot.com
  • 24. • As observed by Gajendragadkar, J. of the Supreme Court in State of West Bengal v. B.K. Mondal: "What Section 70 prevents is unjust enrichment and it applies as much to individuals as to Corporations and Government." In this context, Simpson observes: "The ratio of a case is only binding if it is not inconsistent with statute, or inconsistent with the ratio of another decision." And since the 15-year rule in the Common Cause violates both it cannot be the ratio of the case. In the result, it goes out. Dr. Tabrez Ahmad, 24 technolexindia.blogspot.com
  • 25. • We are now concerned with the defence personnel judgment. Here Misra, J. comes to the right point and adopts the "years of purchase" basis and goes back to the 15-year rule by adding two years to the period necessary for the recovery on the basis of years of purchase. It may be noted that this addition of two years is not justifiable because of the existence of the "multiplier effect" involved in the "years of purchase". A multiplier is the number by which the amount of a specific capital investment is multiplied to give the resultant total amount by which the income has increased. Let us take a concrete example. If I-Investment, Y = income or capital value, then the multiplier K = Y/1 or KI = Y. In other words, the multiplier of investment (monthly payment because of commutation) to obtain capital value (lump sum given by way of commutation) is known as the years purchase. And the number of years purchase is found by dividing the capital value (lump sum) by investment (monthly payment by pensioner). Dr. Tabrez Ahmad, 25 technolexindia.blogspot.com
  • 26. • The total amount obtained by a pensioner at a time is the product of the monthly payment out of the pension and the number of years necessary for full recovery by Government. In the judgment this has been ignored and the "multiplier" widened so as to make it equal to 15 years. But there is absolutely no scope for the addition of two years to the multiplier as is evident from the above equation. Moreover, this multiplier is a variable in respect of each pensioner, because of the variability of I and Y involved in the commuted pension. Therefore, it cannot be equated with the fixed 15- year rule by the addition of two years to the multiplier. It is a mathematical paradox. Finally, the judgment makes "equity" or equality stand on "the more or less basis". Mathematically this is absurd. For "more" is denoted by the sign > , "less" by < , while equality by =. Now, if > or < remains = cannot take the field. This, it is most respectfully submitted, sounds like an Orwellian paradox: "All animals are equal, but some animals are more equal than others." Dr. Tabrez Ahmad, 26 technolexindia.blogspot.com
  • 27. • In this context we are to extract the ratio from the Common Cause. The Courts decision is the restoration of the commuted portion of the pension on the expiry of 15 years from retirement. This applies to civilian and defence pensioners and is made effective from April 1, 1985. And the question is: what is the ratio decidendi of the case? It has already been shown that the court has accepted the 15-year rule since the Governments have accepted it. This, it is submitted, cannot be called a judicial decision. For Misra, J. concludes: "Many of the State Governments have already formulated schemes accepting the 15-year rule. We do not think we would be justified in disturbing the 15-year rule so far as civilian pensioners are concerned." Here Section 70 banning "unjust enrichment" is violated and the Court is blissfully ignorant of this. The 15-year rule has been challenged by the Common Cause because it abets the commission of this offence. This is the justification for the Courts intervention in the matter. Dr. Tabrez Ahmad, 27 technolexindia.blogspot.com
  • 28. • However, the correct yardstick has been evolved by the court in respect of the defence pensioners: "the years of purchase basis". Unfortunately, the court has erred, it is submitted, in adopting two bases on commutation according as the pensioners are civilian or defence while coming to the same decision as to the restoration of the commuted portion of pension. This is wrong. As pointed out by the Supreme Court in D.S. Nakara v. Union of India: "The pensioners for the purpose of pension benefits form a class. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. Division is thus both arbitrary and unprincipled." Dr. Tabrez Ahmad, 28 technolexindia.blogspot.com
  • 29. • The Court has proceeded from the start on the two yardsticks — one for the civilian pensioners and the other for the defence personnel. The civilian yardstick is the 15-year rule, while the defence yardstick is "the years purchase basis". Thereafter, the latter has been equated with the former by the addition of two years. But this does more injustice than justice. Yet the Court claims that this is equitable. This is, to say the least, unfair. Dr. Tabrez Ahmad, 29 technolexindia.blogspot.com
  • 30. • Now, the question is: what is the ratio? It has already been shown that there has been a double-think in the adoption of two yardsticks on the restoration of the commuted portion of pension. For, the 15-year rule and "the years of purchase basis" are two contradictory ideas and they remain irreconcilable. Secondly, double-talk appears in lengthening the procrustian bed of the years of purchase basis so as to make it fit in with the 15-year rule. Thirdly, the case gives the impression of two judgments, concurrent and dissentient. And the concurrent judgment has been arrived at without any legal reasoning. It is the function of the "hunch" in judicial decision. Here the Judge decides by feeling, and not by judgment; by "hunching" and not by ratiocination. As observed by Hutcheson Dr. Tabrez Ahmad, 30 technolexindia.blogspot.com
  • 31. • "The vital, motivating impulse for the decision is an intuitive sense of what is right and wrong for that cause. And that Judge having so decided enlists his every faculty and belabours his laggard mind, not only to justify that intuition to himself, but to make it pass muster with his critics. Judges really do try to select categories or concepts into which to place a particular case so as to produce what the judge regards as a righteous result." Since the decision on the 15-year rule is given per incuriam, it has no binding effect at all. Fourthly, in case the one goes out, the other remains. Hence, the dissentient judgment, namely, "the years purchase basis" remains and attains the status of concurrent judgment. Dr. Tabrez Ahmad, 31 technolexindia.blogspot.com
  • 32. • And the question of its expansion into the 15-year rule does not arise, since the latter violates Section 70 of the Contract Act and is not enforceable. Finally, "the years purchase basis" becomes the ratio decidendi leading to the order for restoration of the commuted portion of pension to the pensioners. And the 15 years limitation does not apply. In other words, the number of years necessary to repay the total lump sum would govern the recovery and no pensioner can be made to pay more than what is paid to him. And this is what the Common Cause has asked for. Dr. Tabrez Ahmad, 32 technolexindia.blogspot.com
  • 33. Ratio in the "Common Cause" Dr. Tabrez Ahmad, 33 technolexindia.blogspot.com
  • 34. • Theories falling under quasi-contract are founded on a broad principle that unjust enrichment should not be retained at the expense of one who has suffered. In French law this principle is known by the name of actio de in rem verso, which "is founded on the principle of equity which forbids one man to enrich himself at the expense of another". This is applicable where "the estate of one person being enriched without lawful cause at the expense of another person, the latter, in order to obtain what is due to him, does not enjoy the benefit of any action based on contract, quasi-contract, delict or quasi-delict". Dr. Tabrez Ahmad, 34 technolexindia.blogspot.com
  • 35. • Some recent codes provide for the return of unjust benefit. This may be seen in Article 123 of the Polish Code, Article 703 of the Japanese Civil Code, Articles 399-402 of the Civil Code of Soviet Russia, Article 62 of the Swiss Federal Code of Obligations, Article 812 of the German Civil Code and Article 179 of the Chinese Code. The American Restatement of the Law of Restitution, 1937 at p. 634 provides for an accounting by the plaintiff as a condition for restitution. Lord Wright in England has pleaded for a new law of restitution in place of the fiction of the implied contract, where it is unreasonable and unjust for the defendant to retain the benefit he has received. Dr. Tabrez Ahmad, 35 technolexindia.blogspot.com
  • 36. • The doctrine of unjust enrichment flowing from quasi- contract was partially stated in Section 70 of the Indian Contract Act, 1872. And the Supreme Court noticed it in State of West Bengal v. B.K. Mondal in which it was applied to Government. Subsequently, the concept of unjust enrichment has suffered a sea change at the hands of the Supreme Court in Mulamchand v. M.P. State The Court has held that Section 70 is based on a different kind of obligation: "The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law, namely, quasi-contract or restitution." In this connection the Supreme Court has quoted with approval the observations of Lord Wright in Fibrosa v. Fairbairn Dr. Tabrez Ahmad, 36 technolexindia.blogspot.com
  • 37. • thus: "Any civilised system of law is bound to provide remedies for unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are different from remedies in contract or in tort and fall within a third category of the common law called quasi-contract or restitution." The concept has been further widened so as to include both law and equity. Hence the Indian Supreme Court has been pleased to note the latest development of the law by quoting the observations of Lord Denning in Nelson v. Larholt Dr. Tabrez Ahmad, 37 technolexindia.blogspot.com
  • 38. • "It is no longer appropriate to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Remedies now depend on the substance of their right, not on whether they can be fitted into a particular framework . The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires." And the principle of restitution has been brought on a par with the American Restatement of the Law of Restitution. This means according to the Supreme Court that "a person (seeking) restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises". This is the present position of the law of restitution since Section 70 of the Contract Act started on its journey in 1872. And the Common Cause v. Union of India has been decided on this law, though the Court has not uttered a single word in this regard. Lord Dennings expression summarises the law: "restitution if the justice of the case so requires". And the Indian Supreme Court has approved of this in Mulamchand. Dr. Tabrez Ahmad, 38 technolexindia.blogspot.com
  • 39. • Since the law of restitution is applicable to commutation, the 15-year rule is arbitrary and it causes injustice. Here it is necessary to bring out the distinction between ratio decidendi and obiter dictum. As observed by H.J. Abraham: "Ratio decidendi refers to the essence, the vitals, the necessary core of the decision; obiter dictum is more or less extraneous, presumably unnecessary-to-the decision point made by the author of an opinion. In other words, the former constitutes the legal rule to be followed and adhered to below; the latter is an expression of a brief viewpoint, or sentiment, which at least in theory, has no binding effect Dr. Tabrez Ahmad, 39 technolexindia.blogspot.com
  • 40. • Of the two reasons — "the 15-year rule" and "the years of purchase basis" — the first cannot be justified since it incarnates injustice in the shape of unjust enrichment. In other words, the 15-year rule is an "unnecessary to the decision point made by the author of an opinion: (it) is an expression of a brief sentiment (having) no binding effect". Hence, it is an obiter dictum. On the other hand, "the years purchase basis" is "the necessary core of the decision: (it) constitutes the legal rule to be followed and adhered to below". In other words, this is the ratio decidendi, having the binding effect. As pointed out by Simpson: "the reason why a judge enunciates the rule of law upon which he acts is that the rule justifies his action: not any rule will serve as a justification, but only a rule which is acceptable as a rule of the legal system." Dr. Tabrez Ahmad, 40 technolexindia.blogspot.com
  • 41. • There is perpetual flux in the total push and pull of the universe and a judge faces a twofold task: (1) he must first extract from the precedents the underlying principle, the ratio decidendi; (2) he must then determine the path or direction along which the principle is to move and develop. Unfortunately Misra, J. has not in the Common Cause followed the salutory advice given by Cardozo. In case of conflict of principles, one may point to one conclusion and another may point to a second conclusion. A judge is to choose between two paths, selecting one or the other and in some cases he is to hit upon a third, which will be the resultant of the two forces in combination or will represent the mean between the extremes. This is illustrated by the case of Riggs v. Palmer Dr. Tabrez Ahmad, 41 technolexindia.blogspot.com
  • 42. • wherein it was decided that a legatee murdering his testator would not be permitted to enjoy the benefits of the will. Three principles contended for mastery. The first was the principle of the binding force of a will disposing of the testators estate in conformity with law. This pushed to the limit of its logic seemed to uphold the title of the murderer. The second principle was that Civil Courts might not add to the pains and penalties of crimes. This pushed to the limit of its logic seemed to uphold his title. Over against these two was the third principle rooted in justice, namely, that no man should profit from his own iniquity. And the logic of this principle prevailed over the logic of the other two. In the Common Cause also the same may be noticed. The logic of "the years purchase basis" is to prevail over the logic of the 15-year rule, since the former is rooted in justice while the latter is not. And the ratio decidendi of the case is "the years purchase basis". In the words of the Supreme Court: "A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein." Dr. Tabrez Ahmad, 42 technolexindia.blogspot.com
  • 43. Conclusion• In a famous dictum Lord Halsbury said: "A case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas (it) is not always logical at all." Literally interpreted it would be fatal to any system of precedents. But what Halsbury meant is that there is more to the law than a mechanical process of logical deduction. It is obvious that the Judge has in every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the circumstances of his own case are in their essentials similar. Once he has decided which principle to apply, a bit of logic may enter into his application of principles. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction. Generally there is a choice Dr. Tabrez Ahmad, 43 technolexindia.blogspot.com
  • 44. • And this has been explained by Chandrachud, C.J. in Deena v. Union of India thus: "Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision cited as a precedent."• In this context the role of the Judge is described by Lord Wright while discussing Bell v. Lever Bros thus Dr. Tabrez Ahmad, 44 technolexindia.blogspot.com
  • 45. • The judge could go step by step with previous authorities to the point that an agreement based on mistake (is) unenforceable. Then he would have to decide whether the same result followed when the prior contract was indeed existing, but could be cancelled without compensation and was voidable. Here the ways parted, and the judge had to make up his mind by analogical reasoning, and by his perception of what was just or convenient."• And the Common Cause, it is submitted, leaves much to be desired insofar as the "analogical reasoning" and the "perception of what was just" are concerned. Dr. Tabrez Ahmad, 45 technolexindia.blogspot.com