Ratio Decidendi.

Ratio Decidendi refers to the binding part of a judgment. Ratio Decidendi literally means the
reason for the decision. It is considered as a general principle which is deduced by the courts
from the facts of a particular case. It becomes generally binding on the lower courts in future
cases involving similar questions of law. The underlying principle which forms authoritative
element is often termed as Ratio Decidendi. The concrete decision is binding on the parties, but it
is the abstract ratio Decidendi which alone has force of law.
Ratio Decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in
reaching its conclusion. Ratio Decidendi of a case depends on what later tribunals have declared
to be the ratio Decidendi. Ratio Decidendi is the decision as applied to the material facts as
ascertained according to the rules suggested by Goodhart.
Writers on jurisprudence have advanced different tests for ascertaining the ratio Decidendi.
Professor Wambaugh suggests that the ratio Decidendi can be discovered by reversing the
proposition of law put forward by the court and inquiring whether the decision would be the
same notwithstanding the reversal. If it is the same, then the proposition of law is not part of the
ratio.
Professor Goodhart points out that the ratio Decidendi is not the reason for the decision because
the reason may be bad and yet the case may not come to be an authority. The ratio Decidendi is
also not necessarily the proposition of law stated in the judgment. There may be no rule of law
expressly set out or there may be several rules of law set out by different judges as in appellate
decisions. The view of Goodhart is that ratio Decidendi is nothing more than the decision based
on the material facts of the case. The theory of Goodhart implies that it is the deciding judge who
decides what are the material facts and those can be discovered by a perusal of the judgment.
There are certain rules by which the material facts can be discovered. Certain facts may be
presumed to be immaterial unless expressly stated to be material. Such would be the facts
regarding time, place, name, amount etc. If the judgment does not give the facts, the facts stated
in the report must be assumed to be material. If the judgment does state the fact, we must not
look beyond that. The view of Goodhart is that facts such as time, place, name, amount etc are
presumed to be immaterial unless expressly stated to be material. If the judgment does not
distinguish between the material and immaterial facts, all facts mentioned in it must be
considered to be material.
Critics point out that the view of Goodhart that a ratio Decidendi of a case consists of the
decision based on the material facts is superficially true. Its inadequacy becomes evident when it
is applied in detail. It rests entirely on the meaning of the phrase material facts.

 Obiter Dictum.

Professor Goodhart defines obiter dictum as a Conclusion based on a fact the existence of
which has not been determined by the court
All that is said by the court by the way or the statement of law which goes beyond the
requirement of a particular case and which lay down a rule that is irrelevant or unnecessary for
the purpose is obiter dicta.
An Obiter dictum refers to parts of judicial decisions which are general observations of the judge
and do not have binding authority. All that is said by the court by the way or the statement of law
which go beyond the requirements of the particular case and which lay down a rule that is
irrelevant or unnecessary for the purpose in hand, are called obiter dictum.
These dicta have the force of persuasive precedents only. The judges are not bound to follow
them. They can take advantage of them but they are not bound to follow them. Obiter dicta help
in the growth of law, these sometimes help the cause of the reform of law. The defects in legal
system can be pointed out in the obiter dicta.

Doctrine of Stare Decisis.

Means, to Stand by as things decided. Dont interfere in decision of court, until necessary.
There was no doctrine of Stare Decisis as there was no reporting of the decisions of the courts. It
was in the 17th century that the decisions of the exchequer courts came to be reported in England
and were given a binding force. Then came the Supreme court of Judicature Act of 1873 and
1875 and the theory of stare Decisis was firmly established. Today it is a characteristic feature of
the legal systems of England and India.
The doctrine of Stare Decisis has been recognized by the constitution of India. Under the Stare
Decisis rule, a principle of law which has become settled by a series of decisions is generally
binding on the courts and should be followed in similar cases. This rule is based on expediency
and public policy. This doctrine ensures consistency and certainty in obligation of law.
Jurisprudentially Doctrine of Stare Decisis gives the authority for binding value of precedent.
Constitutionally, Doctrine of Stare Decisis is derived from Article 141 of Constitution. Although
this rule is generally followed by the courts, it is not applicable in all cases. The reason is that
previous decisions should not be allowed to continue a wrong if the court is convinced that the
previous decision is wrong. The rule of stare Decisis is not so imperative or inflexible that it

cant be departed from but its application must be determined in each case by the discretion of
the court and previous decision should not be followed to the extent that error may be maintained
and grievous wrong may result.
Stare Decisis is ordinarily a wise rule of action. But it is not a universal and inexorable
command. If the rule of stare Decisis was followed blindly and mechanically, it would dwarf the
growth of law and affect its capacity to adjust itself to the changing needs of society.
Article 141 provides that the law declared by the supreme court of India shall be binding on all
courts in India. Although the expression of all courts is wide enough to cover the supreme court
of India itself, it has been held in Bengal Immunity Co. ltd. Vs State of Bihar that the expression
does not include the supreme court of India. The result is that like the House of Lords, the
Supreme Court is free to depart from its previous decisions if valid reasons exist for doing so.
In Minerva Mills Ltd. Vs Union of India, the Supreme Court observed: Certainty and Continuity
are essential ingredients of the rule of law.
When a Single judge of a High court is of the opinion that the previous decision of another single
judge of the same High court on a point of law is erroneous he should matter the refer to a larger
bench and should not hold that the previous decision is wrong. This rule applies not only to
judges sitting singly but also to divisional benches. One division bench shouldnt set aside the
decision of another division bench of the same High Court. It was also held that division bench
of a High court has expressed a view and another division bench is not inclined to agree with it,
the latter cant by itself express a contrary view, but must refer the matter to full bench.

Decisions reached per incuriam.

Judgments which are wrong in law are called Judgments per Incurium. A decision given per
incuriam is a case in which statute or rule having statutory effect is not brought to the attention of
court. A decision given in ignorance of a case which would have been binding on the court is
called Per Incuriam.
Per incuriam decisions are delivered without any argument, reference to the crucial words of the
rule and without any citation of authority.
A decision given by a court which has some mistakes in it. Its a mistake of law. A provision is
interpreted in a wrong manner or a wrong provision is applied in decision. Per Incurium is wrong
in law or fact. Per Incurium judgments can be overruled.

 Decisions Sub Silentio.

In some cases the court may make no pronouncement on a point with regard to which there was
no argument and yet the decision of the case as a whole assumes a decision with regard to the
particular point. Such decisions are said to pass Sub Silentio and they dont constitute a
precedent.
Assuming that there is something in Judgment which the court didnt consider such a judgment
then rendered is called Judgment Sub Silentio.
Judgment Sub Silentio can be reopened if its pointed out that missed or unconsidered element
can change the outcome of the case. Generally the element which is missed or unconsidered by
the court is not put forward by the parties or their advocates in dispute.

Doctrine of Prospective Overruling.

Doctrine of Prospective overruling came into being based on American Constitution.

Any decision which has prospective impact but not retrospective effect, when a decision
specifically lays down it has only prospective impact its called Prospective Overruling.
In the case of Golakh Nath the Supreme Court of India adopted the Doctrine of Prospective
Overruling. In the case, the validity of the First, Fourth and Seventh amendments of the Indian
Constitution was challenged and it was contended that those were invalid. Prior to this case, the
Supreme Court held in Shankari Prasad and Sajjan Singh case that those amendments were valid
and parliament can amend constitution.
In the case of Golakh Nath the Supreme Court held by a majority of 6 to 5 that the amendments
in Shankari Prasad and Sajjan Singh case were invalid as they prejudicially affected the
fundamental right to property. The result was that the Supreme Court restricted the effect of its
decision to future cases. It was laid down that the fundamental rights could not be taken away or
abridged by constitutional amendments in future but whatever had already been done under the
first, fourth and seventh amendment was not to be disturbed.

 Alternative Dispute Resolution (ADR)

ADR refers to any means of settling disputes outside the court room. It can help justice system in
a country function more efficiently. It often saves cost and time and increases effectiveness of
courts. ADR includes Negotiation, Arbitration, Conciliation and Mediation.
Reason why ADR is preferred over Litigation:
1. Technical expertise.
2. Less time consuming
3. Relatively cheaper
4. Not bound by procedural laws.

Arbitration.
Arbitration is a private arrangement of taking the disputes to more flexible and less formal forum
and abiding by the judgment rendered by arbitrator. Arbitration is most structured format of
ADR, The Arbitration and Conciliation Act, 1996 is the relevant legislation that governs the
process of Arbitration in India. The process and methods of arbitration have also been described
in the Act. The parties have the freedom to select a qualified expert known as Arbitrator. The
process of dispute resolution through arbitration is confidential, unlike court proceedings which
are open to public. Decision given by Arbitrator is known as Arbitral award, similar to judgment
given by a judge, the arbitral award is binding on the parties. Once an arbitral award is rendered
it is recognized and enforced. The arbitrator also holds the power and authority to grant interim
measures. Unlike a judgment rendered by a judge in court, the award does not hold any
precedential value for future cases hence; arbitrators are free to base their decisions on their own
conception of what is fair and just. Thus, unlike judges they are not strictly required to follow
law. Decisions given in Arbitration and Conciliation are equivalent to decree of lower courts. An
arbitration clause can be added in a contract and accordingly both parties in contract can agree to
resolve their disputes through arbitration and not litigation. Arbitration can be chosen by parties
either by way of arbitration agreement or court referral.

Mediation.

Mediation is one of the methods of ADR in which parties appoint a neutral party known as the
Mediator who facilitates the mediation process. Mediation is flexible and informal technique of

dispute resolution. Mediation is relatively inexpensive, fast and confidential. Mediation differs
from Arbitration on the grounds of nature of award rendered. The function of mediator is to act
as a middleman. A mediator performs a facilitative role and provides platform for parties to reach
a mutually agreeable solution. Mediation becomes mandatory In Family disputes. Family courts
Act, mandates that parties in dispute should undertake three mediation proceedings. Family
matters are dealt in camera in mediation.

Conciliation.
Conciliation is an ADR process; parties appoint conciliator who meets them separately to
resolve their differences. Conciliation is governed by Arbitration and Conciliation Act,
1996. The process and methods of conciliation have also been described in the Act.
Conciliator acts as a third party and not a middleman, Conciliator comes up with a report
after hearing both the parties. The role of Conciliator goes beyond that of a Mediator. A
Conciliator may be interventionist in the sense that he or she may suggest potential
solutions to parties, in order to resolve their claims and disputes. A conciliator arrives at
a decision only after agreement of both parties. Conciliation is similar to Mediation.
Decisions given in Arbitration and Conciliation are equivalent to decree of lower courts.
The Industrial Disputes Act, 1947 also provides for conciliation as a viable means of
resolving disputes in labour sector.

Administrative Tribunal.
Administrative Tribunals are quasi judicial body. It is a quasi judicial body because they
may consist of administrative officers or judges without any legal background. Tribunals
have been constituted under specific constitutional mandate enshrined in constitution of
India or through legal enactments. Their creation aims at increasing efficiency in
resolving disputes and reducing the burden of courts. Some of the tribunals function with
regulators. The tribunals are procedurally flexible and this flexibility increases their
efficiency. The overall objectives of the tribunals are to provide speedy and inexpensive
justice to litigants.
Swaran Singh Committee suggested an administrative body with quasi judicial function
be setup. The reasoning given by the committee was also adopted by the 14th law
commission report.

Administrative tribunals run parallel to the court system. Administrative tribunals also
have power to declare a provision constitutional or unconstitutional.
Although administrative tribunals may resemble courts because they make decisions
about disputes, they are not part of the court system. There are two significant differences
between administrative tribunals and courts:
1.Administrative tribunals are set up to be less formal, less expensive, and a faster way to
resolve disputes than by using the traditional court system.
2.Tribunal members who make decisions (adjudicators) usually have special knowledge
about the topic they are asked to consider. Judges, however, are expected to have general
knowledge about many areas of law, not particular expertise about the law in the case
they are hearing.
The 42nd amendment Act, 1976 added Article 323 A and 323 B to the constitution of India
after the period of Emergency. These articles empower parliament to setup tribunals for
adjudication of specialized disputes. Thus, 42nd amendment Act ushered the era of
Tribunalisation of Indian Judiciary. The enactment of Administrative Tribunal Act, 1985
setup the Central Administrative Tribunal (CAT) and State administrative Tribunal (SAT).
In Sampat Kumar Case the following questions were raised:
1. Power conferred under Article 323 A and 323 B to exclude jurisdiction of all other
courts except the Supreme Court, so that validity of provision was challenged.
2. Whether administrative tribunal is an effective substitute to High courts and other
civil courts.
3. Whether administrative tribunals can be vested with power to declare a provision of
law as constitutional or unconstitutional.
These questions were again raised in the L Chandra Kumar Vs Union of India. It was held the
tribunals are however not meant to replace courts. This has been explained by the seven judge
bench of the Supreme Court in L Chandra Kumar Case, it was also held that tribunals would not
take away the exclusive jurisdiction of courts, and their decisions could be scrutinized by the
division bench of the High Courts under Article 226 and 227. Tribunals cant act as a substitute
to High Court but will only be supplementing it. Supreme Court also held that the administrative
tribunal has power to decide upon the constitutional validity of Delegated legislation and not that
of parent Act.

Lok Adalat.
Lok Adalat is a non adversarial litigation method, which is held periodically and presided
by retired judges, Social worker or lawyer. Lok Adalat deals with Civil, Matrimonial,
Partition Cases and Land, Property, Labour disputes. The very concept of settlement of

disputes through mediation, negotiation or through arbitral process is conceptualized and

institutionalized in philosophy of Lok Adalat. Lok Adalat specifically deals with public
utility services. The evolution of Lok Adalat was a part of the strategy to relieve heavy
burden of the courts with pending cases and to give relief to the litigants who were in
queue to get justice. The idea of Lok Adalat was first proposed by Justice P.N.
Bhagawathi. The first Lok Adalat was held in 1985 in Delhi and it solved around 150
cases.
The decision of Lok Adalat is binding on the parties and their decisions are capable of
execution through legal process. There is no court fee and even if the case is already filed
in the regular court, the fee paid will be refunded if the dispute is settled in Lok Adalat.
The main focus of Lok Adalat is to give compromise; if no compromise is reached matter
goes to court. The Legal Services authorities Act, 1987 enacted by parliament provides
for various provisions of dispute settlement through Lok Adalat. Lok adalat has been
given statutory status under the 1987 Act. The act has been enacted in pursuance of
Article 39 A. Cases in Lok adalat are decided and settled based on mutual consent of
parties and the decision arrived by Lok Adalat is deemed to be decree of civil court and is
final and binding on all parties and no appeal lies before any court against its award.

Rule of law.
Rule of law essentially means that law carries supremacy over all individuals, even those
in position of power. Equality and Non arbitrariness are two important and non
detachable component of Rule of law. Rule of law can be better understood by these three
expressions:
1. Rule by law.
2. Rule under law.
3. Rule according to law.
Rule of law as a principle is essentially based on democratic societies and is not a known feature
of monarchies. It also deals with the doctrine of constitutional morality which says that, even in
doing something legal, an administrative action must be fair and reasonable. Rule of law is an
essential tool to protect the freedom and dignity of individuals against the organized powers. In
the landmark Supreme Court case of Keshavanada Bharthi Vs State of Kerala Rule of law was
categorized as Basic structure of constitution.
Professor A.V. Dicey objected that Doctrine of Rule of law was being violated, however the
checks and balance system which the different principles of rule of law brought, completely
blunted the criticism of Dicey.
Principles of Rule of Law are as follows:

1. Predominance of legal spirit.

2. Equality before law.
3. Supremacy of law.

How rule of law is embodied in Indian Constitution.

Rule of Law is embodied in the Constitution- in the ideals enshrined in the Preamble and in
Part III. The Indian Judiciary has played an instrumental role in shaping Rule of Law in
India. By adopting a positive approach and dynamically interpreting the provisions of
constitution the courts have ensured that the Rule of Law not remains only on paper but are
incorporated in spirit too. In the case of Maneka Gandhi v. Union of India, the Honorable
Supreme Court established the Rule of Law that no person can be deprived of his life and
personal liberty except through the procedure establish by law under Article 21 of the
Constitution. Thus, Article 21 requires the following conditions to be fulfilled before a
person is deprived to his life and liberty:
1.
2.
3.
4.

That there must be a valid law.

The law must provide procedure.
The procedure must be just, fair and reasonable.
The law must satisfy the requirement of Article 14 and 19.

According to A.V. Dicey in India, the Rule of law is embodied in Article 14 of the constitution.

Doctrine of Separation of Powers.

Ever since civilization, most struggles in history has been between citizens and organized power
of the government structure. Separation of powers is meant to create a divisions within
government setup to create separation within the state. When power and control lies or is vested
with more than one authority, the opportunity for it to be misused is reduced. The doctrine in its
classical sense is not applicable to any modern government. Hence, the doctrine is not an
essential feature of British constitution.
Features of Doctrine of Separation of Powers:
1. Aims at efficiency as well as division of powers.

2. Ensures liberty of citizens.

3. Guarantees life and liberty to people.

Montesquieu theory of Separation of Powers:

Montesquieu gave separation of powers a socio-scientific and structured meaning.
Montesquieus theory has following three aspects 1. Member of one organ of the state must not be the member of another organ.
2. One organ of the state should not exercise the functions of the other organ.
3. One organ of the government should not interfere in the function of the other organ.

Due process of law.

Due process developed from clause 39 of the Magna Carta in England. When English and
American law gradually diverged, due process was not upheld in England but became
incorporated in the US Constitution. Due process of law means that the state must respect
all the legal rights that are owned to a person. Even in grave political circumstances, the
rights of citizens should not be compromised and this could only be possible through a
fair and independent judiciary. Due process of law follows principles of Natural law.
When a government harms a person without following the exact course of the law, it
constitutes a due process violation, which offends the rule of law. Due process of law
doctrine not only checks if there is a law to deprive the life and personal liberty of a
person, but also sees if the law made is fair, just and not arbitrary. This doctrine provides
for more fair treatment of individual rights.
In the case of Maneka Gandhi Vs Union of India the concept of procedure established
by law was interpreted in a wider ambit and was compared with the concept of Due
process of law established in US constitution. It was tried to make the term Procedure
established by law as synonymous with Due process when it comes to protect
individual rights. Thus, the procedure established by law has acquired the same
significance in India as the due process of law clause in America.

Legal research.

Legal research is the process of identifying and retrieving information necessary to support legal
decision-making. In its broadest sense, legal research includes each step of a course of action that

begins with an analysis of the facts of a problem and concludes with the application and
communication of the results of the investigation. Legal research can be done through following
methods Doctrinal research and Non Doctrinal research (Empirical research).

Doctrinal Research.
Doctrinal research in law field indicates arranging, ordering and analysis of the legal structure,
legal frame work and case laws to search out the new thing by extensive surveying of legal
literature. Doctrinal research is followed to solve the legal problem with a new output within a
short period of time with less expense by closely examining and analyzing the legal doctrine,
legal framework and case laws in a logical, systematic and scientific way.

Non Doctrinal Research.

Non doctrinal research is also known as empirical research. It is considered as more authentic, as
it consists of first hand information.