Ratio decidendi at halt

 

There are three main sources of law, i.e., legislation, custom and judicial precedent. The legislation comes into force the moment its enforcement is notified by the legislature. The custom takes a long and immemorial time to mature into law, but the judicial precedent takes the shape of law when it is consistently followed by the future courts.

The million dollar question is that which portion of the judgment is binding on the future courts? Is it the ratio decidendi, i.e., reason for the decision, which takes the shape of law or obitur dictum, i.e., things said by the way by the judges while deciding a case? Obviously, it is the ratio decidendi, which is binding on future courts.

Delhi High Court on 15-6-2021 granted bail to three activists students, Natasha Narwal, Devangana Kalita and Asif  Iqbal Tanha in the north-east Delhi riot cases. Supreme Court has on the appeal of Delhi Police, ordered that “ the order of High Court of Delhi would not be cited as judicial precedent by other accused persons to claim bail.”  Hon’ble apex court was surprised over the unprecedented 100 pages long judgment of the High Court, in which all laws were discussed, especially when the constitutional validity of UAPA was not argued/challenged before High Court. The only point at stake was of the bail. The apex court has neither cancelled the bail order nor it was sought by the Delhi Police, but the effect of the order was stayed by the Supreme Court.

The Supreme Court observed that “while hearing bail application, Delhi High Court went to dwell on the constitutional aspects of Unlawful Activities (Prevention) Act, 1967.” In fact the constitutional aspects of validity of UAPA were not argued before the court and the observation of High Court on the applicability of the UAPA was uncalled for. It was argued on behalf of the state that “High Court’s order will lay the foundation of incorrect interpretation to lay the foundation of a dangerous situation in which terrorist and disruptive activities would have to be dealt by I.P.C., instead of specialized anti-terror law.”  The counsel for defense also agreed that High Court judgment will have all India repercussions and the same should be examined by the Supreme Court. It was emphasized on behalf of the State that if the judgment of the High Court is taken as correct and is implemented, then no terrorist could ever be booked under UAPA.

In the case under consideration, 53 people, including Police personnel were killed and more than 700 were injured. In the observation of High Court since the riots were eventually controlled, the accused cannot be charged under UAPA. It was also observed that “the Police blurred the line between right to protest and terrorist activity and they tried to suppress the freedom of speech and expression.” High Court observed that “the anti CAA riots were restricted to north-east Delhi so it would not be right for the Police to say that protest affected the community at large.” The finding of the High Court was very emphatic  that on the basis of evidence available in the charge sheet/case diary, offences u/s 15, 17 and 18 of UAPA are prima facie not made out and therefore, the additional limitations and stringent restrictions contained in section 43D (5) of UAPA for refusal of bail would not apply.” The definition of “terrorist act” was also interpreted by the High Court. The bail was granted in favour of accused persons on the basis of general principles of bail.

It was also argued before Supreme Court that order of High Court has “turned the UAPA on its head” and it was actually an order of acquittal.  Some observations of the High Court were uncalled for; hence the effect of the order of the High Court was stayed by the Supreme Court till final decision in the case. Its effect will be that, the ratio decidendi of the judgment of High Court stands freezed.

 

 

The crucial question now is how to find out ratio decidendi of a case? According to Salmond, there are two ways of finding the ratio of a case. First one is known as Goodhart’s test. According to this test, the most material fact of the case and the decision of the court on it constitutes the ratio of the case. Second test is Waumbaugh’s test, also known as reversal test, according to which the proposition of law put forward by the judge, should be negated or reversed by putting a word “not” in it and if the reversal would reverse/alter the actual decision, then that proposition of law is the ratio decidendi of the case.

According to Benzamin Cordozo, following are the Jurisprudential rules of the ratio decidendi: -

1.    It must be a necessary step to the conclusion.

2.    It must be directly related to the issue.

3.    It must come from dispute of law, and not from dispute of facts.

4.    It must be argued in the court.

5.    The facts of the precedent case shape the level of generality.

6.    The later courts will decide the level of generality.

7.    When a precedent has multiple reasons, all reasons are binding.

8.    The ratio may come in multiple forms like, a common law rule or interpretation of statute/rules.

9.    Where there are multiple judges, ratio is extracted out of majority opinion.

10.           When ratio cannot be determined, later courts may not be bound.

11.           Unstated assumptions are not the ratio.

12.           Ratio decidendi is binding on future courts whereas obitur can have persuasive value only. However, the obitur of the apex court is binding on all the future courts.

 

 

 

 According to Professor Julius Stone, the ratio may be descriptive or prescriptive. The descriptive ratio is from the original case and prescriptive ratio is how the ratio may be applied to the future cases. We may be able to identify the ratio in the decided case but it is not possible to directly apply it to a future case for the simple reason that the precedent case and the future case will never be precisely identical. There will always be distinctions between the two. The probabilities of identical facts occurring in the future are very slim. Thus, there is a need of level of generality and application of syllogism for the survival of the doctrine of ratio decidendi.

If we apply the abovementioned rules to the judgment of Delhi High Court, it is clear that commenting upon the interpretation of UAPA was not at all essential for the grant of bail. More important is that it was never challenged or argued before the court. It was not essential step for the court to arrive at the conclusion arrived at by the court, and was not directly related to the grant of bail, hence will not amount to ratio.

 One point remains still arguable that in the absence of detailed order, it would not be called as a speaking order, and it would be difficult for the court to grant bail unless it comes to the conclusion that case diary has insufficient evidence to make out a prima facie case under the relevant sections imposed upon the accused persons. Thus, High Court or any other court, in the absence of speaking order, will not be in a position to grant bail, leading to the thwarting of personal liberty of the accused persons especially when accused is presumed to be innocent unless proved guilty. Yes, there may be distinction between a detailed and lengthy order and dwelling upon the interpretational aspects of a law.

Now what is the stage at which the ratio decidendi becomes ready to be followed? Jurisprudentially, in the hierarchy of court, the judgments of the district courts are subject to the scrutiny of the High Court. Likewise, the judgments of the High Court are also subject to the scrutiny of the apex court. If we have three or four judgments in a hierarchy on a particular matter, according to doctrine of merger, all judgments will merge into the final verdict of Supreme Court and it is the judgment of Supreme Court which will clear the path for ratio decidendi. In the present case also the bail order of the High Court will finally merge in the order of the Supreme Court. The order of the High Court may or may not be confirmed by the Supreme Court, but the ratio will be extracted out of the judgment of the Supreme Court. In the absence of stay order from the Supreme Court, the remaining accused persons would have got the chance of claiming the benefit of ratio decidendi of the order of the High Court, in spite of filing of the appeal by Delhi Police.

 The current stay order of Supreme Court is jurisprudentially justified and a step towards saving rule of law, although not in accord with previous observations of the Hon’ble court. Thus, for following the ratio decidendi, which gives  rise to law, according to the doctrine of stare decisis under article 141 of our Constitution, future courts will have to wait till the final verdict of the apex court.