The Wharton’s Law Lexicon defines the term “obiter dictum” as an opinion not necessary to a judgment; an observation as to the law made by a judge in the course of a case, but not necessary to its decision, and therefore of no binding effect; a remark by the way.
Relatedly, Black’s Law Dictionary defines “obiter dictum” as a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential.
Halsbury’s Laws of England clarifies that whilst “Dicta” have no binding authority on another Court, they may have some persuasive efficacy. It also distinguishes “obiter dicta,” i.e., remarks of a judge from “judicial dicta” which are considered enunciations of the judge’s opinion on a point not arising for decision, which is therefore not part of ratio decidendi.
Comparatively, the ratio decidendi translates from the Latin maxim to literally mean ‘the reason for decision’. It represents the principle or rule of law on which a court’s decision is founded.
Resultantly, per Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within India.
And although it would not have to be the whole judgment which would be binding on the Courts positioned lower on the hierarchy, but rather only the ratio decedendi of the judgment, would serve as a binding precedent.
Quoting Manusmriti
In applying the above two legal maxims to a recent decision of the High Court of Gujarat at Ahmedabad in Special Criminal Application (Direction) No 6643 of 2023, it would be apt to observe that the obiter dicta by the Gujarat HC judge who quoted the Manusmriti while hearing the plea of a minor rape survivor for abortion of the fetus, one must realise that these statements made by the presiding officer, by the way, haven’t necessarily found their way into the ration decidendi of the main Judgment.
A verbatim reiteration of the oral observation by Justice Samir J Dave while hearing Special Criminal Application (Direction) No 6643 of 2023 before the High Court of Gujarat at Ahmedabad is as follows:
“Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmriti once for this.”
In the opinion of Rohin Bhatt, co-founder of the Indian Bioethics Project at Gujarat National Law University: “A judge must put fundamental rights and constitutional morality over religious morality. Utterances such as the one from Justice Dave fuel the perception that the judiciary is becoming increasingly theocratic.”
Interestingly, the precedent that Justice Samir J Dave relied upon in composing the Judgment in Special Criminal Application (Direction) No 6643 of 2023 was considered by a coordinate Bench of the same High Court of Gujarat by Justice V M Pancholi and on that occasion the Gujarat High Court dealt with a case relating to medical termination of pregnancy and vide order passed in Special Criminal Application No 5201 of 2021 dated June 11, 2021, the Court had allowed medical termination of pregnancy.
Justice Samir J Dave in Special Criminal Application (Direction) No 6643 of 2023 also placed reliance upon a Delhi High Court judgment rendered in the case of Mrs A v GNCTD and another reported in 2023 SCC OnLine Del 1405 which permitted medical termination of pregnancy as it was found by the Medical Board consisting of six doctors that the foetus was suffering from “hypoplastic left heart syndrome” and did not have a positive post-natal prognosis, i.e. after birth, the prognosis for the foetus was quite poor.
Hence, it baffles a practitioner of law as to how an esteemed High Court Judge hailing from the State of Gujarat would be tempted to render obiter dicta that was bordered upon misogyny when in fact the same Judge has in fact cited precedents in the nature of equivalent ratio decidendi rendered by High Court of similar jurisdiction.
Rohin Bhatt in his article in the Indian Express dated: June 10, 2023, cited a Supreme Court judgment of 2009.
In Suchitra Srivastava v Chandigarh Administration, the Supreme Court held: “The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods.”
Therefore, the obiter dicta of the Gujarat High Court’s Judge would at least have to be streamlined to reflect the previous ratio decidendi of the Supreme Court which was given way back in 2009 in Suchitra Srivastava vs Chandigarh Administration.
And while on the point of normativity in the jurisprudential approach, it would be relevant to cite Raj Kapoor & Ors vs State & Ors, 1980 (1) SCC 43, wherein Krishna Iyer, J, speaking for the Court said:
“Art, morals and law's manacles on aesthetics are sensitive subjects where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to esthetics.”
