2. Introduction
The ratio of a case is its central core of meaning, its sharpest cutting
edge. It is the ratio of a case which is capable of being binding.
Whether it is binding will depend on the position in the hierarchy of the
court that decided the case and of the court that is now considering
it. If the proposition of law does not firm part of ratio it is either dictum
or obiter dictum.
3. Defination
Obiter dictum [plural — 'dicta] is Latin for 'a remark in passing.'
Dictum Or a judicial dictum is the term used when it relates to a
matter in issue in the case; obiter dicta are dicta that are more
peripheral.
Statements of law on points which are fully argued by counsel and
considered by the judge, but which do not technically play any
part in determining the result, are also termed "judicial dicta.
4. Scholars Views
Cross and Harris describe obiter dictum as a proposition of law
which does not form part of the ratio decidendi.
According to Professor Patterson an obiter dictum is a "Statement of
law in the opinion which could not logically be a major premise of
the selected facts of the decision".
For Dr. Goodhart a dictum is "A conclusion based on a fact the
existence of which has not been determined by the court."
5. Example
In Syed Ali Nawaz Gardezi v. Muhammad Yousef S. A. Rahman J
said:
“The Object Of section 7 is to prevent hasty dissolution of marriages by
talaq, pronounced by the husband, unilaterally, without an attempt
being made to prevent disruption of the matrimonial status. If the
husband himself thinks better of the pronouncement of talaq and
abstains from giving a notice to the Chairman, he should perhaps be
deemed in view of section 7 to have revoked the pronouncement”.
It is clear from the context, words chosen and the language used
by the judge that this last sentence could not be the ratio of the
case. However, this dictum was followed by the High Courts, the
lower courts and even the Supreme Court itself.
6. Difference between Ratio decidendi and
Obiter Dicta
Vaughan CJ said that, “An Opinion given in court, if not necessary to the judgment given of
record, but that it might have been as well given if no such, or contrary had been broached
is no judicial opinion; but a mere gratis dictum”.
John Austin while talking of obiter dictum, said that, "Such general propositions, occurring
during a decision, as have not this implication [ratio) with the specific peculiarities of the
case, are commonly styled extra judicial, and commonly have no authority”
According to Devlin J, this is a matter which the judge himself is alone capable of deciding.
However, if a judge has the freedom to determine which of his reasons are ratio decidendi
and which obiter dictum there is a possibly that he will exercise greater influence on the
future development of the law.
Lord Halsbury said: Every judgment must be read as applicable to the particular facts
assumed to since the generality of the expressions which may be found there are not
extended to be expositions of the whole law but govern and are qualified by the particular
acts of the case in which such expressions are to found.
7. Can a dictum become a ratio?
Yes, a dictum can become a ratio for two reasons:
First, if Such a dictum is used in a latter case it may become binding
if it is made part of a ratio decidendi in the latter case.
Secondly, When the Supreme Court has applied one and the same
proposition of law on at least four occasions it will become ratio.
8. Conclusions
As per the above discussion it is 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.
