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.
