“Obiter Dictum”.. a Concept that needs debate

The “Obiter Dictum” maxim in law refers to the expression of an opinion by a Court during the proceedings which is not necessary for the decision of the case. Legally such statements lack the force of precedent.

In a written judgement the reasons for a decision is elaborated and this is referred to as “Ratio Decidendi” or “Reason for the Decision”.

In the written judgement, the Judge may make some additional comments by way of illustration which is referred to as “Obiter Dicta”.

However, during the trial, the judges some time need some clarifications and throw some questions at the counsels. When experts are deposing before the Court, the Judges may need to seek clarifications of theoretical nature which may be extraneous to the judgement per se but required for understanding the context.  These should be  fact seeking questions and not expression of opinions and hence are not forming part of obiter dicta.

It has however become a practice amongst some Judges to speak out their opinion during the trial to intimidate the counsels or with the intention that the remarks are picked out by the media present in the Court room.

This tendency should be considered as “Judicial Misconduct”. Such dialogue between the Chair and the counsels should not become a forum for the Judges to vent out their personal opinion since this cannot be part of obiter dicta.

It is very important  for the Judiciary to maintain a high level of ethical standard and behaviour when they are visible in the public and raise their questions in such a manner (includes the tone)  that they are not interpreted as opinions.

I refer to an article in unodc.org titled Judicial Misconduct and Public Confidence in the rule of law by David J Sachar, which rightfully observes …”More than any other branch of government, the judiciary is built on a foundation of public faith-judges” and regulation of judicial misconduct is necessary to ensure that this public confidence is not eroded.

It is not easy to define the “Ethical behaviour” of a judge during the proceedings and off the Court. But mature Judges know and always err on the safer side when the crunch comes.

For example, if the case before the judge is likely to have a conflict of interest or is likely to be perceived as a “Conflict of Interest” then it is expected that an ethical judge would offer to recuse from the case even when the parties to the dispute are unaware of the issue of conflict.

While “Obiter Dictum” refers to the addition of comments in a written judgement, there does not appear to be any legal sanction for oral judgemental opinion expressed by the Judge in the open court knowing fully well that the media is likely to pick it up and present it to the larger public as the “Opinion of the Court”.

The “Conflict” as well as “Expression of Oral opinion not part of the final judgement” were both seen in the recent Supreme Court vacation bench handling of the petition for clubbing of FIRs by a politically exposed person.

The Court came down on the counsel with a hammer and ensured that the petition was withdrawn. The media picked up the comments and spread it like wild fire as if it is a judicial precedent. Many of the lower Courts will also consider these remarks as the “Obiter dicta” which it is not.

In the above case which was recorded as withdrawn,  it is possible that the petitioner would not on her own withdrawn the petition.

But the order records “Petitioner seeks to withdraw and is permitted to withdraw the petition”. This could be unfair on the petitioner and her right to seek judicial protection.

This situation arises since the trial is a discussion between the Counsels and the Judges who are from the same fraternity. Since in many courts, the Judges are past members of the Bar, they hold close personal relationship with senior counsels and this often vitiates their judgement. It is for this reason that many of the counsels only put up their arguments before friendly judges. Some senior counsels may be so senior that the judge might have even worked as his/her junior several years when he was practicing.

It is not an argument that the Judge cannot disagree with one of the counsels strongly and give a scathing judgement. What is however important is that the Judge should be confident of owning up his/her opinion and express it with reasoning in the judgement. In that case there will be an opportunity for the aggrieved parties to appeal to a higher forum for justice.

Making oral observations, intimidating the counsels to withdraw the petition and not being accountable for the decision in the end is not a desirable conduct of a good Judge.

As regards the Conflict situation, if a case is politically sensitive and the father of one of the Judges is a political worker, then it calls for sensitivity of the judge to recuse himself.

Similarly, if the case is involving a party who is in a position to provide a favour  to a close  relative of the Judge in another dispute,  mentioning the dispute could be considered as an indirect hint to the party to provide that favour.

There should be no reason for the public to point out these kinds of conflicts and the Judges should realise it themselves and recuse themselves from such cases.

There are many judges who are extremely sensitive to such conflict situations and avoid them with a barge poll. Unfortunately there are also some judges who may be ignorant of the required ethical standards or some who are aware but chose to ignore.  They bring bad  name to the entire fraternity.

It is the duty of the managers of the Judicial system to take appropriate disciplinary action against such judicial misconduct. Where the Judicial system has no remedy for such a situation, the Legislature has to use its powers of impeachment to ensure that such conduct is nipped in the bud and better discipline is instilled in the Judiciary.

When the legislature intervenes in the disciplining of the Judiciary, there will be an inevitable charge that the Executive is trying to influence the Judiciary. However, “Executive” and “Legislature” are different and disciplinary action by the legislature is not to be treated as creating an influence on the Judiciary.

However, such action requires “Conviction” and “Commitment to maintain public confidence on the Judiciary” on the part of the legislature. If the legislature is either too soft to take the bull by the horn or enters into a compromise, then democracy is at stake.

Hope India is still having a living vibrant democracy. However, it needs to be proved..


About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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