Shivakantjha.org - Triplet 5 - Understanding ratio of a Judgement
Triplet 5
Understanding ratio of a Judgement
By Shiva Kant Jha
January 9, 2009
WHAT is binding in a given case decided by the Supreme Court or the High Court is (i) the law declared as the reason for decision which, we call ratio decidendi, and also (ii) what is decided in judgment culminating in the operative order. Whilst the (ii) is a decision inter partes which can be modified only through the review and the curative procedures, the ratio decidendi constitutes law for all who are subject to its jurisdiction. In this part of the Triplet I tell you something pertaining to one's quest to discover the former. This quest is important, but often not easy. In Orissa v. Sudhansu Sekhar Misra (AIR 1968 SC 647) our Supreme Court cited with approval the following observations of the Earl of Halsbury L.C.:
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and every observation found therein nor what logically follows from the various observations made in it."
Experts have mentioned two methods for determining what constitutes the ratio of a case: one is what Professor Wambaugh calls the "reversal" test; the other is what Dr Goodhart calls the "material facts" test. The former test suggests that we should take proposition of law put forward by the judge, then reverse or negates it, and then see if its reversal would have altered the actual decision done in that case. The latter suggests that the ratio is to be determined by ascertaining the facts treated as material by the judge together with the decision on those facts. Salmond articulates its reason when he says ( Jurisprudence 12th ed. p. 181): "The "material facts" test is also valuable in stressing that propositions of law are only authoritative in so far as they are relevant to facts in issue in a case: a judicial statement of law therefore must be read in the light of facts of the case. And of course in the light of issues raised in the pleadings."
The search for the ratio decidendi are guided by several well established principles: some of them are these -
(i) The Supreme Court Court has frequently emphasized that in dealing with constitutional matters it is necessary that the decision of the Court should be confined to the narrow points which a particular proceeding raises before it. "Often enough, in dealing with the very narrow point raised by a writ petition wider arguments are urged before the Court, but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it" (Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr AIR 1967 SC 1 ).
(ii) The judicial determination founded on the counsels' "concession" does not establish juristic principle Correct legal position on this point is thus stated by Salmond: "For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides…In course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him…" And Lord Brightman J observed in London Hospital v. I.R.C [ (1976) 1 W.L.R. 613]: "But a case that proceeds on the basis of a proposition that is not tested by argument is not of much value as an authority for the validity of that proposition."
(iii) A decision per incuria. "…a Supreme Court judgment rendered in ignorance of a relevant or statutory provision is not binding on any court in India.The Constitution and the laws are the law on the subjects covered by them; and the Supreme Court cannot be said to "declare the law" on those subjects if the relevant provisions are not present to its mind" ( H.M. Seervai, Const. Law p. 2677). The same principle applies in the context of the High Court.
(iv) The "…considered obiter dicta must be distinguished from casual observations made in a judgment on a point not calling for decision and not argued before the court." ( H.M. Seervai, Const. Law p. 2678). In Ranchhoddas Atmaram v. Union (AIR 1961 SC 935) our Supreme Court held that the observations in three of its decisions were not binding as "the question was never required to be decided in any of the cases and could not, therefore have been, or be treated as decided by this Court."
(v) "A dissenting judgment valuable and important though it may be. Cannot count as part of the ratio, for it played no part in the court's reaching the decision." (Salmond, Jurisprudence, 12th ed. p. 183). In Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr (AIR 1967 SC 1) Hidayatullah J delivered his dissenting judgment (allowing the petitions). His judgment must be ignored for determining the ratio of the case.
But it is a strange irony that what is most devastatingly important principle is most often not recognized It is TIME. The changes configured by the changing Time make many often legal rules anachronistic. This brings to mind what Shakespeare said in one of his famous sonnets:
'Where wasteful Time debateth with decay
To change your day of youth to sullied night'
One example which comes to mind is the destiny of the rule that the House of Lords had laid down in Liversidge Vs. Anderson. Lord Atkin's dissent in that case was preferred in later times. Lord Diplock very aptly said in 1980 in ITC v. Rossminster: "I think the time has come to acknowledge openly that the majority of this House in Liversidge Vs. Anderson was expediently and at that time perhaps excusably wrong; and the dissenting speech by Lord Atkin was right". The House of Lords had delivered that Judgment when the nation's existence itself was at stake because of the World War II. This is the factor to which the great Sanskrit poet Bhartrihari pays his salutation in his Vairagya-Satkam: "Salutation to Time, the Great Principle of Change (Kalaya tasme namah).
II
The Doha Development Round: We cannot afford playing the Game of Chess
IN Triplet IV, I had written something on the possible causes of the most worrisome global financial crisis which has put the neo-liberal paradigm on a wheel of fire. I mentioned also the prognosis and diagnosis of this morbid meltdown which the G-20 conclave made in November. It is interesting to note that the real causes were better understood and stated in the deliberations done, on Oct, 30, 2008, at the Interactive Panel of the United Nations General Assembly on the Global Financial Crisis. In the Opening Statement the President of the General Assembly very aptly said:
"What was once benignly described as "irrational exuberance" is now exposed for what it was: unbridled greed and pervasive corruption enabled by governments that lost sight of their responsibility to protect their citizens. The credibility of the dominant stakeholders has been shattered. Trust, that most precious and essential element in human exchange, has vanished. The world faces setbacks that are already causing untold suffering. For some, the consequences are fatal."
The agenda for action suggested in the G20 summit evidence that the whole strategy is to give a shot in the arm of the faltering and failing neo-capitalism. They still seek panacea in their monetary policy, and their heart still bleeds for the Market as the neo-liberals understand this their economic cornucopia. They still have high expectations from the IMF, World Bank, and the like. After uttering clichés from the neo-liberals, they expressed their anguish at the creeping protectionism. The Summit provided no effective remedy to stabilize the crisis ridden present system, and to ensure that this sort of turbulence may not torture us any more. The experts' abracadabra cannot take us far on the turbulent sea through the raging storm.
The G-20 Summit was pursuing, it seems, the WTO's agenda. It said:
"We underscore the critical importance of rejecting protectionism and not turning inward in times of financial uncertainty. In this regard, within the next 12 months, we will refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing World Trade Organization (WTO) inconsistent measures to stimulate exports. Further, we shall strive to reach agreement this year on modalities that leads to a successful conclusion to the WTO's Doha Development Agenda with an ambitious and balanced outcome."
Now the Doha Round is round the corner. The WTO Director-General Pascal Lamy thinks that the present economic crisis has necessitated the conclusion of the Doha Round as soon as possible. This logic for haste is incomprehensible. The neo-liberal economic paradigm has brought about this crisis: how can a faster pace on the same road be for good? It seems that there is an attempt to shepherd countries to the desired directions by raising a bete noire. We have to be careful. Thomas Jefferson rightly said: "The Price of Liberty is Eternal Vigilance."
For us very heavy stakes are involved in the coming Doha Round. The areas of interest for us are (i) Agriculture, (ii) Non-Agricultural Market Access, and (iii) Services. Besides, we all know how easily the WTO develops its tentacles to grab newer subjects under its octopus-grip. The most important, and also the most complex issues pertain to the regime that is going to be established for global agriculture. The trade-offs are heavily loaded against us. We are bidden to reduce subsidies whereas the US and the EU are not ready to reduce the subsidies by amounts justified on proportionality and in equity. Agriculture for us the means of livelihood, it is for us a way of life, it is the most dynamic shaper of our culture. Allow our agriculture to go under the corporate rule with foreign roots, and, as an inevitable consequence, sing the requiem at the loss of our independence. The developed countries, esp. the US and the EU plead for substantial tariff-cuts to provide for their goods better market elsewhere. This strategy is pursued with ruthless alacrity no less gnawing than that which the East India Company had pursued once upon a time. For our government the interest of our people must be supreme. It seems some charming potion is administered at the international negotiations fora which make our leaders oblivious of common people. Didn't this happen at Marrakesh when the WTO Treaty was signed by us in 1994? And Services? We have our special interest in Services because we are well placed to be globally competitive. The developed countries know this: so they dither in granting us full scope. Why is it that the aggressiveness, which characterizes agriculture and Non-Agricultural Market Access, is so conspicuously absent when it comes to the segment of Services.. Stigliz made a good point at the Interactive Panel of the United Nations General Assembly when he said: "The Doha Review Conference on Financing for Development provides an opportunity to make progress both on the institutional issues including those related to governance as well as on the substantive issues." The Doha Development cannot ignore these issues.
Time has come when our leaders, the press and other opinion-makers must cease indulging in the inane trivialities of self-seeking politicking, and concentrate on the global issues which are going to affect us tremendously. We cannot afford to go back to the days of the Nawab of Awadh when, whilst the imperial forces were on his head, the Nawab was playing with pigeons. This reminds me of the game of chess in Middleton's Women beware Women, referred through an allusion by T S Eliot, in his The Waste Land. The Game of Chess presents a spectacle of certain person who played chess in his portico unmindful of the fact that inside the house he was being robbed and his wife raped!
III
Judicial Technique of a great Judge
WHEN we see what is going around us, we feel that our Judges should sometimes reflect over the judicial technique of Lord Denning of the United Kingdom. Whilst there are many who do not see beyond their nose, Lord Denning was one of those who acquired entitlements to live through centuries, and relevance in most jurisdictions world over. Prof. Schmitthoff analyzed Lord Denning's judicial approach with crispness and clarity thus (Manitoba Law Journal, VOL-VI, (1979) pp. 1-19):
"His approach is technological. He thinks of the result before he considers the legal reasoning on which it has to be founded. If the result to which established legal doctrine leads is obviously unfair or out of touch with what ordinary people would expect to be the law, he will examine first principles in order to ascertain whether they really compel an unjust solution and often this method will enable him to arrive at an answer which is more adequate to modern needs."
And Klaus Vogel has aptly observed: " Any penetrating analysis shows that, while theories have provided shells for the attack, the decision as to where the ammunition was to be shot has been the result of the economic and social desires of those who used the artillery" [On Double Taxation Conventions at p. 119]. Great judges of our times do not feel cribbed and confined by the narrow perception of Judicial Role cut to the Procrustean bed of the maxim "Judicis est jus dicere - non Dare, which pithily expounds the duty of the court: it is to decide what the law is, and apply it, and not to make it." Our Supreme Court erred in relying on this doctrine in Assistant Commissioner of Income-tax v. Velliappa Textiles & Ors (2003-TIOL-12-SC-IT), and UoI v. Azadi Bachao Andolan (2003-TIOL-13-SC-IT), but, all is well that ends well, it corrected itself in Standard Chartered Bank's Case (2005-TIOL-79-SC-FERA-CB). Limits within which the judicial technique works are judicially determined in many well-known cases. Lord Scarman rightly its frontiers in Furniss v Dawson [1984] 1 All ER p. 533] by observing:
"Difficult though the task may be for judges, it is one which is beyond the power of the blunt, instrument of legislation. Whatever a statute may provide, it has to be interpreted and applied by the courts: and ultimately it will prove to be in this area of judge-made law that our elusive journey's end will be found."
Judges are artists with moral vision. They administer justice with materials more malleable than 24-carat gold. This puts on them great responsibility. Whilst many mortals stand before their bar as the suppliants, they themselves stand before the Bar of 'We, the People.'
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