Lectures by Dr. Tabrez Ahmad

1. Legal MethodDetermining the Ratio of a case Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 1

2. Since the ratio decidendi of a case has the nature of a propositional function, it is variable and becomes elusive. And jurists have even been in search of it. Any legal system using precedent has to consider the way in which they are relevant. To this end the relevancy is found in the fact that decisions involve some principle of general application. But the question is: how is this to be ascertained? Classical theory has regarded the binding part of a decision as the legal principle formulated. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 2 Determining Ratio of a case

3. him the ratio decidendi is controlled by the relation between "the material facts" of the case and the holding on these facts. While the ratio consists of the very reasoning necessary to explain the holding on "the material facts" found by the precedent judge, he suggests that the better way to approach the problem is to elucidate the ratio of a case from the facts themselves rather than from the principle enunciated by the Cour. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 3

4. Julius Stone challenges Goodhart and distinguishes between "descriptive" and "prescriptive" ratio decidendi to conclude that facts may be of many possible "levels of generalisation". Descriptively the phrase imports an explanation of the court's reasoning to its conclusion based on sociological, historical and even psychological inquiry. And the finding from such an inquiry is true or untrue as a matter of fact. This may be sought at various levels. Prescriptively the phrase refers to a normative judgment, requiring us to choose a particular, that is, binding ratio decidendi. In other words, Stone's argument is that Goodhart's theory yields indeterminate results because the "principle" derivable from a case by the Goodhart method of "material facts plus decision" is entirely dependent on the level of generality at which one chooses to describe the facts. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 4

5. In this context R. Cross defines "the ratio decidendi of a case" as "any rule of law considered necessary by the Judge for the decision of the case: it is that part of the decision which has binding effect and the facts of the case play a large part in its identification". Hence, all other statements of law are obiter dicta. Now, the word "necessary" is used in the sense of "essential to the working of a judicial system". It seems Cross supports Goodhart. And a binding principle may be sketched as follows. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 5

6. Where the facts are a, b, c, d, e, g and a reported decision is P, the decision is said to be based on the rule that whenever A, B, C then X should be decided. Here the lower case letters stand for the particular circumstances of the case and capital letters for general properties of facts so that a is an instance of A, etc. Thus the ruling in P can be summarised as: P: a, b, c, d, e, g/A.B.C X. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 6

7. The novel case, N, is a case of a1, b1, c1, 1, (i.e. not — e1), f1 and it is governed by P, which is binding on the court. Now, in case the court decides to follow P, its ruling will be: N: a1, b1, c1, d1, 1, f1, /A.B.C X. In spite of some difficulties Goodhart's definition of ratio decidendi may be taken as a working rule. According to him the ratio is equated with the material facts of the case plus the decision thereon. And the rules for finding the ratio or principle may be summed up as follows: (1) The principle of a case is not found in the reasons given in the opinion. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 7

8. (2) The principle is not found in the rule of law set forth as the opinion. (3) The principle is not necessarily found by a consideration of all the ascertainable facts of the case, and the Judge's decision. (4) The principle of the case is found by taking account (a) of the facts treated by the Judge as material, and (b) his decision as based on them. (5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the Judge, for the principle may depend as much on exclusion as it does on inclusion. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 8

9. Goodhart himself mentions that his definition suffers from two infirmities. The first is that the facts are "infinitely various", though the material facts are strictly limited. Thus the consideration in a contract is a single material fact but the kinds of consideration are unlimited. Secondly, it may happen that the facts, stated by the Judge to be real and material, can be actually non-existent. This is a hypothetical case. It may be pointed out that the whole doctrine of precedent is based on the theory that generally Judges do not make mistakes either of fact or of law. In other words a decision given per incuriam is an exception that confirms the general rule. A case may be wrongly decided or decided for the wrong reason. As pointed out by Simpson: "The ratio of a case is only binding if it is not inconsistent with statute, or inconsistent with the ratio of another decision. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 9

10. Now cases may differ according as they contain a single opinion or several opinions. The determination of the ratio decidendi becomes easier if there is only a single opinion or all the opinions are in agreement. In case the several judgments agree in the result, but differ in the material facts on which they are based the principle is limited to the sum of all the facts considered material by the various judges. Thus a case involves facts A, B and C and the defendant is held liable. The first judge finds that fact A is the only material fact, the second that B is material, the third that C is material. The principle of the case is therefore, that on the material facts A, B and C the defendant is liable. If, however, two of the three judges had agreed that fact A was the only material one and that the others were immaterial, then the case would be a precedent one on this point, though the third Judge had held that the facts B and C were material ones. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 10

11. This may sound too mechanical and may be seen in the case of Golak Nath v. State of Punjab, as decided by the Indian Supreme Court. Five judgments were delivered in the Golaknath case by (1) the Subba Rao block of Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ.; (2) Hidayatullah, J.; (3) the Wanchoo block of Wanchoo, Bharagava and Mitter, JJ.; (4) Bachawat, J; and (5) Ramaswami, J. They may be reduced to three if the joint dissenting judgments of the Wanchoo block are equated with the separate dissenting judgments of (4) and (5). And the position would be like this: the Subba Rao block of five; the Wanchoo block of five; and the lone judgment of Hidayatullah, J. Six propositions seem to have been laid down by the judgments as follows: Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 11

12. (a) Parliament cannot amend Part III of the Constitution of India so as to "take away or abridge" the fundamental rights; (b) all amendments made prior to February 27, 1967 and affecting fundamental rights other than the "right to property" have full validity; (c) the effect of the first, fourth and seventh amendments on the "right to property", though made prior to February 27, 1967 remains valid and operative as part of the law of India; (d) the seventh amendment to Article 31-A(2) is similarly valid and operative; (e) the seventeenth amendment expanding the list of statutes in the Ninth Schedule is similarly valid and operative; and Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 12

13. (f) the impugned land reform legislation of Punjab and Mysore (Karnataka) is wholly valid. It is interesting to note how these propositions are established, (a) is held by the majority comprising (1) and (2); (b) is held by (2) only, though it necessarily follows from the view of the Wanchoo block comprising (3), (4) and (5); (c), (d) and (f) are held unanimously; and (e) is held by ten Judges with Hidayatullah, J. dissenting. And the question is how to extract a single ratio out of these judgments. The answer is that the tangle of five separate judgments cannot possibly yield any single ratio. As observed by R. Cross: Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 13

14. "The ratio decidendi is a conception peculiarly appropriate to a single judgment. Accordingly, it is probably impossible to avoid something in the nature of arbitrary rules to meet cases in which several judgments are delivered. The main trouble is that it is impossible to formulate these rules with anything like complete precision." Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 14

15. Three approaches may be considered in this connection. The first approach takes the phrase itself as a sufficient guide to the ratio. Thus in the Golaknath case one is to look for those propositions of law which were necessary and sufficient to base the "declaration" made by the Supreme Court. Article 141 uses the expression "declared" and this is explained by Subba Rao, C.J. thus: "The expression 'declared' is wider than the words 'found or made'. To declare is to announce opinion. Indeed the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land." Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 15

16. And what was necessary for the decision was the conjunction of the reasons given either (i) by the 5-man Subba Rao block and the 5-man Wanchoo block; or (ii) by the 5-man Subba Rao block and by Justice Hidayatullah; or (iii) by the 5-man Wanchoo block and by Justice Hidayatullah. On any of these hypotheses, two sets of reasons would be necessary; and the one wholly immaterial and this might be any one of the three. The Wanchoo block was in a minority in regard to proposition (a) and this does not mean that its reasons were not "necessary to the decision". However, these reasons can be ignored only on the ground that there was sufficient majority to base the decision without them. But this equally applies to either of the two sets of "majority" reasons. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 16

17. The result is that the first supposed test of the ratio decidendi would lead to an insoluble choice amongst three pairs of sets of reasons with each pair comprising two different sets of ideas. In practice, of course, the choice is not wholly insoluble. It is evident that the reasons of the Wanchoo block are inconsistent with those of either the Subba Rao block or Justice Hidayatullah. But the last two reasonings are not necessarily inconsistent. Their compatibility tends to assume that these two judgments form the source of the ratio. Here one may hold with Chief Justice Centlivres in the South African case of Fellner v. Minister of the Interior, that even if a case has no apparent ratio decidendi, the actual "decision" is "binding". In the narrowest sense of "decision", this gives binding force only to proposition (f); but on a wider meaning of "decision" all the propositions are binding. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 17

18. The second approach may be formulated in terms of "counting heads". Here one simply adds up the number of Judges giving the propositions. Of course, the search is for a majority of the participating judges. Let us take a case with four views, p, q, r and s and in a court of 11 Judges — p is supported by 4 judges, q and r by 3 each, and s, by the remaining one. On a strict version of "counting heads" none of the four views would be established, since none had a clear majority. On the looser version p had more support than any of the others and it would be part of the ratio. But this violates Article 145(5) of the Indian Constitution, requiring that the "judgment" and "opinion" need be "delivered with the concurrence of a majority of the Judges present at the hearing of the case". Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 18

19. As observed by Greenbery S.A. in the Fellner case: "The object of the enquiry is to ascertain what is the ratio decidendi and not what are the opinions of Judges. Insofar as the law is built up by judicial (precedent), it is not built up on a counting of heads of all the members of the Court. It is in the reasons of the majority of the Court for the order that the ratio decidendi is to be sought, the reasons of the dissenting Judges being irrelevant for this purpose" In this context, "counting heads" in its looser version would help us only as to the acceptance of "prospective overruling". Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 19

20. The third approach may be termed "the majority of the majority". If the Golaknath decision is proposition (a), it is supported by 6 of the 11 Judges and 5 support it for identical reasons. By equating the ratio with the reasons given by "the majority of the majority", Golaknath is confined to the single judgment delivered by Chief Justice Subba Rao with Justice Hidayatullah concurring with him. And the difficulties involved in extracting a ratio from Golaknath lead one to prefer a pragmatic approach to precedent — construction to rationes Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 20