obiter dicta

Mohandas Issardas v. A. N. Sattanathan AIR 1955 Bom 113

 “Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'.”

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VALIDITY OF RE-PROMULGATE ORDINANCES

Dr D C Wadhwa & Ors Vs State of Bihar & Ors (AIR 1987 SC 579)

"These petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re-promulgate ordinances from time to time without getting them replaced by Acts of the Legislature.....This is clearly contrary to the consti- tutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legisla- ture, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance--Raj in the country."
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CBI is not an authority

In Sh Navendra Kumar Vs UOI, Gauhati High Court on 08.10.13 declared constitution of CBI as ultra virus and also explains what is an obiter dictum as under,

“So far as constitution of police force is concerned, Union and the State, both have legislative competence to enact laws on ‘ police’. However, so far as law, enacted by Parliament, is concerned, it can operate only in the ‘Union territories’ and not in any ‘ State’, because ‘police’ is a subject falling under State List”

“The State, in D Bhuvan Mohan Patnaik Vs State of AP AIR 1974 SC 2092 which had acted on executive instructions in installing live high-voltage wire on the walls of the jail, could not justify installation of this mechanism on the basis of a ‘law’ or ‘ procedure established by law’ inasmuch as the executive instructions, which had been acted upon, were held by the Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) nor could these instructions, according to the Supreme Court, fall within the expression, “procedure established by law’, as envisaged by Article 21.”

“The elaborate discussions on the concepts of ratio decidendi and obiter dicta, made in the cases pointed above, can be summarized as follows:

(a) A decision is an authority for what it actually decides. What is the essence, in a decision, is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or the principles on which a question before a Court has been decided, is alone binding as a precedent.

(b) In a given case, two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question, which was necessary for the determination of the case would be the 'ratio decidendi' . However, the opinion of the tribunal on the question, which was not necessary to decide the case would be only an 'obiter dictum'.

(c) ‘Obiter dictum’ is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in[…]”

Validity of pre-constitutional laws

Madhu Limaye Vs Sub-Divisional Magistrate 1971 AIR 2486

 “ …Pre-Constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force the Constitution by reason of Article 13(1), read with any of the guaranteed freedoms…….a quotation extracted by Krishna Iyer, J. in B. Banerjee v. Anita Pan – It may a repetition to say that according to the learned Chief Justice, “there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles” and that, “it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made[…]”

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quiz 4

Selvi J Jayalalithaa & Ors Vs State of Karnataka & Ors

Hon'ble Supreme Court of India observed in Writ Petition (Crl.) No.154 of 2013 decided on 30.9.2013 as
“Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general.”

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quiz 3

Can a lady be prosecuted for gang rape?

Hon'ble Supreme Court of India observed in Priya Patel vs State Of M.P. & And on 12 July, 2006 as  “A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape" shall be punished etc.

The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape.

By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention”

“A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.”

Thus a lady cannot be prosecuted for rape even with the help of sec 34 (common intention) but whether she can be prosecuted for abetment left undecided.

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quiz 2

Dr Rajesh Talwar & Anr Vs CB

Hon'ble Supreme Court of India while dismissing an application of accused u/s 233 CrPC to call certain witnesses observed on 08.10.2013 as “We might note that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound in terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same”

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Quiz

EVM Paper Trail Judgment- A Judgment or an office order?

Dr Subramanian Swamy Vs Election Commission of India full judgment text

I have just gone through this judgment. In this case Hon'ble Supreme Court of India observed that paper trail/ paper receipt is necessary in the election in India and held in para 29 

"From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the paper trail”

Government of India was also directed to provide required financial “assistance for procurement of units of VVPAT” for implementation of such a system (VVPAT) in a phased manner. 

With due respect to everybody after reading this judgment and being a toddler in field of law I failed to understand whether it is a judgment or office order by a senior executive or a review of work of some junior officer. My understanding about a judgment was that it decides an issue between two parties or establish rule of law and save the constitution.  But this judgment failed to touch any legal issue except the word herein above in inverted commas. 

Judgment goes in a direction to discuss implementation of Paper trail and its' cost. This is perhaps under the duty and power of other wing and not to judiciary. Moreover judgment nowhere discuss whether other wing failed to do his duty or not but gave direction to provided fund of Rs 1690 crore for these machine. 

This amount is not huge keeping in mind the budget of State but I am more concerned with the paper. In my opinion it will waste a huge number of paper resulting in loss of trees and environment.

Keeping a paper trail or giving a receipt to voter may be harmful in any country specifically in India. This may becomes a method for powerful and bad elements of society to ensure that a fearful voter had cast vote in his favour and voter may be forced to handover the said paper to those person outside the both. 

EVM was introduced in the elections many years back and now days there is not a very big disrespect or hate against them. Moreover Court is there to protect and ensure free and fair election and not to create or "achieved the confidence of voter". Same is the duty, field or specifically dream of the Parliament.