1

UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY

A PROJECT REPORT SUBMITTED AS A PART OF CURRICULUM OF

BCOM.LL.B.(HONS) IN THE SUBJECT OF RESEARCH METHODOLOGY ON THE
TOPIC OF

DETERMINING OBITER DICTA, RATIO DECIDENDI AND CASE COMMENTS

SUBMITTED TO: SUBMITTED BY:

Prof. (Dr.) Gulshan Kumar Shivam Gupta

UILS, PU 339/19 Sec- f

Bcom.ll.b.

UILS, PU
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ACKNOWLEDGEMENT

This is to acknowledge that I, Shivam Gupta, a bonafide student of UILS, PANJAB UNIVERSITY
has made this project with the support of people who deserve a word of appreciation for their
contribution in the making of this project. Firstly, I would to extend my gratitude to prof. Dr.
Rajinder Kaur, Directo, UILS for her never-ending trust in the students. Thereafter, I would like
to thank Prof. Dr. Gulshan Kumar for the unnerving efforts he puts into his teaching. Lastly, I
would like to extend my heartiest gratitude towards my family and friends for their constant
support.

SHIVAM GUPTA

BCOM.LL.B. (HONS)

SECTION – F

339/19
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CERTIFICATE OF ORIGINALITY

The project report on OBITER DICTA, RATIO DECIDENDI AND CASE COMMENTS in the
subject of RESEARCH METHODOLOGY is hereby approved as a credible study of subject and
has been presented by SHIVAM GUPTA is a work of originality with no plagiarism at all.

It is understood that by this report the undersigned do not necessarily endorse any conclusion
drawn, or opinion expressed, but assure that work is of par pure research and study.

SHIVAM GUPTA
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TABLE OF CONTENTS

S.NO. PARTICULARS PAGE NO.

1 INTRODUCTION 5
• STARE DECESIS
• JUDGEMENT
2 RATIO DECIDENDI 6

3 DESCRIPTIVE-PRESCRIPTIVE RATIO 7

4 WHAT IS RATIO? 8

5 RULES OF RATIO DECIDENDI 9

6 TESTS O RATIO DECIDENDI 12

• GODHART’S TEST 12
• HALSBURY TEST 12
• WAMBAUGH TEST 13
7 OBITER DICTA 13

8 RULES OF OBITER DICTA 14

9 STEPS INVOLVED IN OBITER DICTA 14

10 DIFFERENCE BETWEEN OBITER DICTA AND 18

RATIO DECIDENDI
11 CASE COMMENT 18

PURPOSE 18

13 POSSIBLE APPROACHES 19

14 STRUCTURE OF A CASE COMMENT 20

15 BIBLIOGRAPHY 23
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INTRODUCTION

Sources of law are origins of law, the binding rules that enable the state to govern its territory.
There are various sources of law – legislation, custom, justice and equity, conventional law and
precedents. All these sources define the law in their own way. In this project, we will be dealing
with those elements which form the part of precedents, more specifically, the judgement.

Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. When there is no legislature on particular point which
arises in changing conditions, the judges depend on their own sense of right and wrong and decide
the disputes. Such decisions become authority or guide for subsequent cases of a similar nature
and they are called precedents.

STARE DECESIS

Under the doctrine of stare decisis, the decision of a higher court within the same provincial
jurisdiction acts as binding authority on a lower court within that same jurisdiction.

The principle of stare decisis can be divided into two components. The first is the rule that a
decision made by a superior court is binding precedent (also known as mandatory authority)
which an inferior court cannot change. The second is the principle that a court should not
overturn its own precedents unless there is a strong reason to do so and should be guided by
principles from lateral and inferior courts. The second principle, regarding persuasive precedent,
is an advisory one which courts can and do ignore occasionally. In order for the doctrine of stare
decisis to be applicable, there are two basic prerequisites, first that there must be authentic
reporting of decisions of courts. The second requirement is an established hierarchy of courts. In
Indian context, ART 141 of the constitution incorporates this doctrine.
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141. Law declared by Supreme Court to be binding on all courts. - The law declared by the
Supreme Court shall be binding on all courts within the territory of India.

JUDGEMENT

A judgement is a written court decision adjudicating a dispute between two parties by

determining the rights of two parties. A typical judgement consists of the following:

• Brief statement of facts of the case

• If it is an appeal, then the decision of the lower courts
• Statement of issues concerning both the parties
• Arguments advanced and authorities cited by both the parties
• The ruling the courts on the issues at hand
• Finally, the court’s order and the opinion if the judges apart from the judgement

RATIO DECIDENDI

Ratio decidendi (plural rationes decidendi) is a Latin phrase meaning “the reason for the
decision.” Ratio decidendi refers to the legal, moral, political and social principles on which a
court’s decision rests. Ratio decidendi is said to be the principle or principles deduced from
authority in which court reached is decision or negatively, the principle without which the court
would not have reached the decision that it did reach

When a judge delivers judgement in a case, he outlines the facts which he finds have been proved
on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives
the reason (ratio decidendi).

There are cases which involve questions of being answered on principles. Such principles are
deduced by way of abstraction of the material facts of the case eliminating the immaterial elements.
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And the result is that the principle that comes out is not only applicable to that case, but to others
cases also which are similar to the decided case in their essential features. This principle is known
as ratio decidendi. It is the ratio decidendi or the general principle that has a binding effect as a
precedent.

It is the doctrine of precedent which makes the ratio decidendi of the precedent decision
binding.

• In the case of B. Shama Rao v. UT of Pondicherry1, it was observed that any of the
decisions of a court which is binding as a precedent is not because of the end result or the
order of that decision but based on the reasons and principles referred to in such a decision.
• The ratio in deciding a case would evolve from the interpretation of a statute, principles of
natural justice, and the common law principles.

WHAT IS RATIO?

Ratio is a ruling on a point of law and the decision on a point of law depends on facts of a case.
Culling out ratio from a judgment is difficult. A thorough reading of an entire judgment is
required to identify a ratio.

Essence of the decision is the ratio. Every observation found in a judgement is not the ratio. Ratio
decidendi is based upon the facts actually decided. It is an authority for those facts. When the ratio
of an earlier decision is interpreted in a later decision, it is proper only to look into the policy
interest which the ratio seeks to guard and the consequences which it seeks to avoid. It is beyond
doubt that the binding element in Supreme Court judgement is ratio decidendi of the decision and
not any finding on fact. It is the principle found upon reading of a judgement as a whole, in the
light of the question before the court that forms ratio and not any particular word or sentence.

1
1967 AIR 1480, 1967 SCR (2) 650
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THE DESCRIPTIVE – PRESCRIPTIVE RATIO

The ratio decidendi can be either descriptive or prescriptive. Professor Julius Stone in his article,
The Ratio of the Ratio Decidendi gave a distinction between the two. The essence of the distinction
is that the descriptive ratio is the ratio from the original case and the prescriptive ratio is how the
ratio may be applied to a future case. let us get into detail of the two –

DESCRIPTIVE RATIO DECIDENDI

The descriptive ratio is the rationale or the reason which helped the court to arrive at a decision.
It is the original ratio and is used as an aid in future cases.

PRESCRIPTIVE RATIO DECIDENDI

On the other hand, the prescriptive ratio is the way in which the descriptive ratio is used as a
precedent in a future case. No case is totally similar to the facts or the law. Due to this reason,
there arises a problem in the application of the principle as it is laid down in a future case. Hence,
the descriptive ratio is slightly altered by using the level of generality so as to apply it as a
prescriptive ratio.

RULES OF THE RATIO DECIDENDI

After a judgment is written, there is a period of discovery that is needed to figure out what the ratio
truly is. This involves deciphering whether it has fallen outside of what constitutes as the ratio and
how narrow or wide the ratio is likely to be or ought to be. Therefore, the following is a list of
rules for what constitutes the ratio decidendi.

• Must be a necessary step to the Conclusion- ‘The ratio decidendi of a case is any rule of
law expressly or impliedly treated by the judge as a necessary step in reaching his
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conclusion, having regard to the line of reasoning adopted by him, or a necessary part of
his direction to the jury.’

• Must Be Directly Related to the Issue- ‘It is fundamental to the ascertainment of the
binding rule of a judicial decision that it should be derived from a matter in issue in the
proceedings. Cases are only authorities for what they decide. If a point is not in dispute in
a case, the decision lays down no legal rule concerning that issue.

• Must Come from Disputes of Law, Not Disputes of Fact- The ratio must be derived from
disputes of law, not disputes of fact. Rations will not come from cases where the parties
only disagree on the facts.

• Must to Be Argued in Court- To constitute as the ratio, it must first be argued in court.
A point of law that will become precedent should have the opportunity to be argued by
both parties in court, or the law will go without the benefit of counter arguments and fine-
tuning.

• When a Precedent Has Multiple Reasons, All Reasons Are Binding – It is possible that
a case may involve multiple questions of law and judge has to give multiple ratios to decide
on all the issues.

• Ratio can come in different form- The ratio in deciding a case would evolve from the
interpretation of a statute, principles of natural justice, and the common law principles.

• The Facts of the Precedent Case Shape the Level of Generality- The facts of the
precedent case shape how narrow or wide the ratio should be applied to future cases.

• The Court Decides the Level of Generality- Ultimately, it is for the future court to decide
how narrow or wide the precedent ratio ought to be.
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• In the case of multiple judges deciding a case, the reasons cited by the majority of
them will have an effect of precedent on further cases. But if the judges agree with the
judgment or order but not with the ratio for arriving at such a decision, such judgment or
order does not carry an obligation to be followed as a precedent.

• Not All Cases Must Have a Ratio – Cases involving only a question of fact and not any
substantial question of law, such cases may not have a ratio.

• A Precedent Can Be Binding Without a Ratio- Where the material facts are the same,
judgments may still be binding on lower courts even if there was no ratio, providing that
the facts are the similar.

HOW TO FIND RATIO DECIDENDI?

Finding ratio decidendi is an art and not a mechanical process as often thought by people normally.
One acquires the skill gradually by the way of practice. The process of extracting or finding the
ratio decidendi is called the process of abstraction. This has been highlighted by courts in
various cases. In the S.I. Rooplal vs. Lt. Governor through Chief Secretary, Delhi, and others2,
the court talked about the same in detail. The honorable court held that even though all the courts
in the country were to follow law declared by the Supreme Court, it was the duty and responsibility
of the court to find out the ratio of the case. The question of ‘how’ was discussed a little in the
Delhi Administration v Manohar Lal3. The court said that the ratio decidendi had to be
ascertained by the analysis of the facts of the case. The court needs to find the major premise
and minor premise of the case. The major premise consists of the pre-existing rule of law. The
minor premise is “the material facts of the case under immediate consideration”. There are two
methods of finding ratio decidendi as per the National Judicial Academy. The first one is the
conventional method and the other one is the inversion test. The conventional method lays down

2
AIR 2000 SC 594
3
(2002) 7 SCC 222
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certain guidelines which are to be read to understand what might constitute the ratio in any
judgment. These guidelines are as follows:

a. The ratio decidendi must be arising from a dispute of law.

b. The part must be necessary for determining dispute.

c. It must be in direct relation to the issue.

d. It must have been argued and decided on due consideration.

The second method is the inversion test which is also known as the Wambagh test and is discussed
further. This method has been applied by the supreme court in the State of Gujarat v. Utility users
Welfare Association4

TEST TO DETERMINE RATIO DECIDENDI

a) GOODHART’S TEST: (Material Facts) In 1929, Goodhart had argued that the ratio of
the case must be in the reasons for the decisions. He laid down following guidelines for
discovering the ratio decidendi of the case:
• Ratio decidendi must not be sought in the reasons of which the judge has passed the
decision.
• The reasons given by the judge are of peculiar importance, for they may furnish us with a
guide for determining which facts he considered material and which immaterial.
• A decision for which no reasons are given does not necessarily lack ratio, furthermore,
the reasons offered by the court in reading a decision might be considered inadequate or
incorrect, yet the court’s ruling might be endorsed in later cases- a bad reason may often
make good law.

4
Civil appeal no. 14695 of 2015
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• Thus, ratio decidendi is whatever facts the judge has determined to be the material facts
of the case, plus the judge’s decision based on those facts of the material facts that the
judge creates law

Goodhart test of ratio is: ratio decidendi = material facts + decision. Goodhart states that "It
is by his choice of material facts that the judge creates law."

The only drawback of the test is that the test is not in actual use by the judges. In practice the
courts seem to be paying more attention to the judges own formulation of law than that permitted
under the test. Difficulty arises when the court deals with the law without first finding the facts.
They depart from normal situation where rule of law is enunciated and applied to the facts as
found. In these cases, facts are assumed and in some the actual facts do not fit into the law as
enunciated.

b) HALSBURY TEST: The concept of precedent has attained important role in the
administration of justice in modern times. The case before the court should be decided in
accordance with law and the doctrines. The mind of the court should be clearly reflected
on the material in issue with regard to the facts of the case. The reason and spirit of the
case make law and not the letter of a particular precedent.

Halsbury explained the word ‘ratio decidendi’ as, it may be laid down as general rule that, that part
alone of a decision by a court of law is binding upon courts of coordinate jurisdiction and inferior
courts which consists of the enunciation of the reason or principle upon which the question before
the court has really been determined. This underlying principle which forms the only authoritative
element of a precedent is often termed as Ratio Decidendi.

c) WAMBAUGH’S TEST: The inversion test propounded by Wambaugh is based on the

assumption that the Ratio decidendi is a general rule without which a case must have been
decided otherwise. Inversion test is in a form of dialogue between him and his student. He
gave following instructions for this;
• Frame carefully the supposed proposition of law
• Insert in the proposition a word reversing its meaning
• Inquire whether, if the court had conceived this new proposition to be good and had it in
mind, the decision could be the same.
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• If the answer is affirmative, the however excellent the original proposition may be, the
case is not a precedent for that proposition.
• But if the answer is negative, the case is a precedent for the original proposition and
possibly for another proposition also.

Thus, when a case turns on one point the proposition or doctrine of the case, the reason for the
decision, the ratio decidendi, must be a general rule without which the case must have been decided
otherwise. A proposition of law which is not ratio decidendi under the above test must, according
to Wambaugh, constitute a mere dictum.

According to the Wambaugh test, also known as the reversal test, the proposition of law put
forward by the judge should be reversed or negated and if the reversal would alter the actual
decision, that proposition is the ratio decidendi of the case.

CONCLUSION

A difficulty arises in that, although the judge will give reasons for his decision, he will not always
say what the ratio decidendi is, and it is then up to a later judge to "elicit" the ratio of the case.
There may, however, be disagreement over what the ratio is and there may be more than one
ratio. Yet in actual practice judges have drawn a distinction between the actual decision and the
ratio decidendi and on the basis of this distinction have even asserted that what is binding of the
past decision. If there is a ratio decidendi which flows therefrom that also is binding, but that it is
no part of the judicial task to spell out with great difficulty a ratio decidendi, the existence of which
may be a matter of grave doubt and debate, in order to be bound by it.

So long as the tradition of deciding cases on the faith of previous judicial pronouncement
exists as an integral part of judicial process, it will be necessary to struggle with concepts,
like stare decisis and ratio decidendi as conceptional tools which are supposed to structure
judicial responses to the demands of justice in concrete situations within the overall limits of legal
reasoning contained in the earlier case law of compelling cogency.

In India, the doctrine is constitutionally recognized in respect of the decisions of the Supreme
Court which have been declared under Article 141 to be binding on all courts and tribunals in the
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country. This of course implies that even a single pronouncement of the Supreme Court would be
binding on subordinate courts.

OBITER DICTA

Obiter dictum (usually used in the plural, obiter dicta) is the Latin phrase meaning "other
things said", that is, a remark in a judgment that is "said in passing". It is a concept derived
from English common law, whereby a judgment comprises of two elements: ratio decidendi and
obiter dicta.

• Obiter Dicta are the opinion expressed by the judge in the court or during pronouncement
of judgment which does not have any importance in the decision.
• Thus, it can be well concluded by mentioning that obiter dictum is an opinion not necessary
to a judgment and is 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 it is a ‘remark by the
way’. It is the ratio decidendi which has the binding effect and the precedent value.

In the case of Madhav Rao Jivaji Rao Scindia v. Union of India5 the Apex Court while stating
about the relevancy of obiter dicta held that it is difficult to regard a word, clause or an expression
occurring in a judgment as the full exposition of law even if it is not answering the direct questions
of law to the case in hand.

Arum Kumar Agarwal v. State of Madhya Pradesh6 held that obiter dicta is a mere observation
or remark made by the Court, by way of aid, while deciding the actual issue before it. The mere
casual statement or observation “which is not relevant, pertinent or essential to decide the issue in
hand”, the Court said, did not form the part of the judgment of the court and had no authorities
value.

For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are
persuasive only.

5
AIR 1971 SC 530
6
AIR 2011 SC 3056
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A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case.
Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are
obiter dicta. Obiter dicta (often simply Dicta, or obiter) are remarks or observations made by a
Judge that, although included in the body of the court's opinion, do not form a necessary part of
the court's decision. In a court opinion, obiter dicta include, but are not limited to, words
"introduced by way of illustration, or analogy or argument". Unlike ratio decidendi, obiter
dicta are not the subject of the judicial decision, even if they happen to be correct statements of
law. The so-called Wambaugh's Inversion test provides that to determine whether a judicial
statement is ratio or obiter, you should invert the argument, that is to say, ask whether the
decision would have been different, had the statement been omitted. If so, the statement is crucial
and is ratio; whereas if it is not crucial, it is obiter. In reaching decisions, courts sometimes quote
passages of obiter dicta found in the texts of the opinions from prior cases, with or without
acknowledging the quoted passage's status as obiter dicta. A quoted passage of obiter dicta may
become part of the holding or ruling in a subsequent case, depending on what the latter court
actually decided and how that court treated the principle embodied in the quoted passage.

RULES OF OBITER DICTA

Obiter dictum is typically seen as statements that don’t constitute the ratio decidendi, that is, obiter
is everything else but the ratio. However, not all sentences in a judgment fall under either ratio
decidendi or obiter dictum. The book, Laying Down the Law writes: Frequently during the course
of a judgment a judge will restate and discuss proposition of law from previous cases. Such
recitations may provide a useful foundation for the judge’s reasoning but they will neither be ratio
no obiter unless they receive the endorsement of the judge. Thus, obiter dicta are statements made
during the course of a judgment that do not fall under the other categories, such as the ratio, the
orders, the headnote, the restatements of law, etc.

STEPS INVOLVED IN DETERMINING OBITER DICTUM

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• Understanding The Legal Issues Involved- Once we have a clear understanding of the
issues in contention, it will be much easier to see what the different parts of the judgment
are doing. For example, if part of the judgment is resolving the key legal issue through
reasoning, that is likely to be the ratio. But if the judge suggests an imaginary scenario
using different facts, this will not be the ratio because this digression is not necessary for
the judge to reach their decision (but it may be obiter).
• Reading Entire Judgment &Not Just a Part- Sometimes the purpose of a particular part
of the judgment will only become clear once you read it in context with the other parts. For
example, a judge’s summary of the existing law (precedent) may look like the ratio until
you read the next part, where the judge says that no existing precedent clearly applies to
the case at hand.
• Look For Common Characteristics- Common elements of rationales: -

The judge is not merely stating the law, but applying it to the facts of the case (i.e., they are
making a ruling on the case’s key legal issues

• The reasoning given is necessary to determine the outcome of the case (or: the outcome
of the case would not make sense without this reasoning). Common characteristics of
Obiter Dictum. The legal statement or reasoning given is not necessary for the judge’s
decision in this case (i.e., it does not affect the legal situation of the parties)
• The legal statement or reasoning given is hypothetical (imaginary) and is
introduced simply to illustrate or clarify something.

GENERALRULES

• Keep in mind that not every statement of the law is a ratio. Judges will frequently
refer to the decision in previous cases. However, unless these decisions are endorsed by
the judge(s) in this case, these statements of the law are not rationes.
• A judge’s specific words (e.g.‘in my opinion’) are not necessarily an indication of
whether something is a ratio, or obiter.
• Not all cases contain obiter. If you can’t find anything that looks like obiter, it may
bebecause the case simply doesn’t contain any.
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DIFFERENCE BETWEEN RATIO DECIDENDI AND OBITER DICTA

The main difference between ratio and obiter dicta is the information under scrutiny. For
example, ratio decidendi refers to the facts of the case, those things that no one can debate.
Obiter dicta, on the other hand, is everything in between. Obiter dicta translates to “by the
way,” and refers to information that a person says, “in passing.” In other words, difference
between ratio and obiter dicta lies in the fact that, while ratio is binding in its facts, obiter dicta
refer to persuasive statements only. For instance, obiter dicta may include the statements a
lawyer tells the jury in a criminal case to convince them of his client’s innocence, in addition
to the facts of the case.

The distinction between the ratio decidendi and obiter dictum has been very beautifully
explained by Chagla C.J. in the case of Mohandas Issardas v. A. N. Sattanathan 7, (at page
1160) in the following words “an obiter dictum is an expression of opinion on a point which
is not necessary for the decision of a case. This very definition draws a clear distinction
between a point which is necessary for the determination of a case and point which is not
necessary for the determination of the case. But in both cases points must arise for the
determination of the Tribunal. 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’.” So, it would be incorrect to say that every
opinion of the Supreme Court would be binding on the High Courts in India. The only opinion
which would be binding would be an opinion expressed on a question that arose for the
determination of the Supreme Court.

In Director of settlements, A.P. v. M.R. Apparao,8 it has been that an ‘obiter dicta’ as
distinguished from ratio decidendi is an observation by court on a legal question suggested in

7
A.I.R. 1955 Bom. 113
8
AIR 2002 SC 1598
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case before it but not arising in such manner as to require a decision. Such an obiter may not
have a binding effect as a precedent, but it cannot be denied that it is of considerable weight.

RATIO DECIDENDI OBITER DICTA

Salmon defines: “the ratio decidendi may be An obiter dictum is an announcement made
described roughly as the rule of law applied by a judge in course of his judgment which
by and acted on by the court, or the rule may not be unequivocally applicable to the
which the court regarded as governing the issue before him
case.
Ratio decidendi is more authoritative than Obiter dictum has no such binding authority
obiter dictum.
It decidendi has binding authority and is It has no such authority. It is a casual
binding on subordinate courts expression by the courts which carries no
weight.
Ratio decidendi is a rule of law expressly or An obiter-dicta is a rule of law stand by a
impliedly treated by the judge as a necessary judge which was neither expressly nor
step in reaching the conclusion impliedly treated by him as a necessary step
in reaching this conclusion.

CONCLUSION

Precedents are major players in the legal field as they lessen the burden on courts to a larger
extent. It helps the judges deciding the subsequent cases to understand the crux and
jurisprudence behind a legal principle rather than just applying it. Moreover, as the ratio
decidendi is the part that has to be identified from the whole judgment while using a precedent,
the legal students, academicians, lawyers, and the judges would require skill in culling out the
ratio and leaving behind general observations.

CASE COMMENT
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A case comment is a technical piece of legal writing which delves deep into several layers
of the case. You are required to peel these layers off to bring out the issues and analyse the
significance of the case in the light of those issues. You can do this by following four simple
steps: -

1. Re-reading the case keeping in the mind the issues that you are going to discuss in
the Comment;
2. Comprehending complex situations and identifying the legal problems or lacunae
in the case;
3. Sieving out relevant details and indicators from the case that support your analysis.
4. Reaching the conclusion by adopting a particular approach.

PURPOSE

Case comments provide academic insight into judicial decisions. They are useful to, amongst
others, practitioners and those working in the voluntary sector who may not have the time to read
around a subject in depth; to other academics studying in similar areas; to the judiciary to assist
them in future judicial decision making and to students researching in the area.

Case comment may carry out one or more of the following:

Critically examine a judgement: This involves asking the questions “what is the law
established by the judgement” whether the court’s judgement is or is not, in the light of academic
and other opinion, in the author’s view, just?” or “what should the law be”? It may
involve synthesizing law with another discipline such as theology, philosophy, economics or
sociology.
Examine the context and background: This involves explaining the legislative context, case
law and factual background to the case. It can involve considering how the judgement further
develops the law. This type of comment can be predictive in nature where the case is still subject
to appeal.
Explain the background and then the implication: This involves understanding the wider
implications of the judgement on other areas of law, or on other groups or individuals beyond
the immediate parties to the action.
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Create a comparison: This involves examining other cases that have been decided on the issue
and highlighting and explaining similarities and differences
Present two or more points: This involves examining what others with different views have
written about the topic or considering the arguments presented by counsel for both sides in the
case and reaching a conclusion by weighing these views
Create a dialogue with an existing commentary: Where a case comment already exists a
subsequent author might choose to take issue with a comment that has been made and “reply” to
the points made in the earlier comment and then add in some original thought of their own. This
creates a useful dialogue between academics on points of current debate

POSSIBLE APPROACHES TO WRITING A CASE COMMENT

• Law is not clear: Here, you need to focus more on how statutory provisions and relevant
case laws including the present case have created an uncertainty of law on that particular
issue or failed to fill the legal void.
• The judgment is correct and clears the law: Here you need to focus more on the positive
implications of the case and its bearing on the future course of law on that particular issue.
You may also have to provide additional reasons for how the counter-arguments do not
have a legal standing.
• The judgment was wrong: In this approach, you try to prove how the courts take on the
issue was not correct by presenting reasons for the same. The common mistake which
students usually do here is that they reiterate the dissenting opinion in their own words
without adding their own personal critic of the judgment
• The judgment was not wrong but the reasoning: Here, you need to clearly distinguish
your reasoning from that of the court and demonstrate how the court’s reasoning is
incompatible with the reasoning given in prior similar cases on that issue and goes against
the spirit of law or public policy.
• Important issue not discussed: Here, you can identify an issue which you think the Court
should not have ignored or should have discussed in greater detail.
• Personal Approach: The above approaches are suggestive in nature and you are free to
adopt your own unique way of presenting the critic of a judgement or come up with a
combination of the given approaches.
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STRUCTURE OF A CASE COMMENT

The body of a case comment or note consists of four limbs. These are:

INTRODUCTION: A case comment should ideally begin with a short paragraph identifying
the subject of the case so as to give the reader a fair idea regarding the issues you are going to
address in the comment. The second paragraph should be a very brief statement of facts stating
only the part of the factual matrix which is essential to the issue being discussed. Thereafter, you
should write the disposition and what was eventually held in the case in a very precise manner.

BACKGROUND: The purpose of writing this section is to let the reader get the general idea
about the factual subject matter of the case before you start your analysis. The very first step to do
this is to draw an outline of the development of the law leading up to the case under review
by touching upon landmark cases and significant statutory developments. This helps the reader
to appraise the court's decision and understand your arguments more clearly.

ANALYSIS: This constitutes the main limb of the case comment. Here you need to ask yourself
four pertinent questions, namely

1. Was the Court’s decision appropriate?

2. Does this decision change/conform with existing law? Was the reasoning consistent with
previous reasoning in similar cases? Is it likely that the decision will significantly influence
existing law?
3. Did the court adequately justify its reasoning? Was its interpretation of the law
appropriate? Was the reasoning logical /consistent? Did the court consider all/ omit some
issues and arguments? And, if there was omission, does this weaken the merit of the
decision?
4. What are the policy implications of the decision? Are there alternative approaches which
could lead to more appropriate public policy in this area? If you have answered these
questions satisfactorily, 80% of your job is done. As the sole purpose of the case comment
is to dissect a particular legal issue, you must be extremely careful here as to not touch
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upon any extraneous or peripheral issue. Your answer to these questions must be
substantiated by logical assertions and adequate reasoning.

CONCLUSION: The conclusion to the case comment should encapsulate the main essence
of the author’s findings and arguments. It is not always necessary to reach a conclusion to
decide upon whether or not the court's decision was right. You can simply end your analysis
by briefly stating the impact of the case and pointing out certain lacunae (if any).

USING FOOT-NOTES IN A CASE COMMENT: It is advisable that you use speaking

footnotes to briefly elaborate or discuss other relevant information which might be useful for
the reader to know. Although there is no rule as to how many footnotes should be there, you
must avoid excessive footnoting keeping in with the general policy followed by most of the
reputed law journals in the world. Secondly, though you are free to use any type of uniform
citation method, it is advisable that you use the Blue Book method which is most commonly
used for law journals.
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BIBLIOGRAPHY

BOOKS

• S.R. Myneni, Legal Research Methodology (Allahabad Law Agency, Faridabad, 2012)
• Prof. (Dr.) Rattan Singh, Legal Research Methodology (Lexis Nexis, 3rd edn., 2021)
• Shipra Aggarwal and M.S. Rao, Legal Research Methodology (Allahabad Law Agency,
Faridabad, 2nd edn., 2001)

ARTICLES/JOURNALS

• Chunuram Soren, “Legal Research Methodology: An Overview” Vol. 8 Issue 10 JEITR

(Oct 2021)

WEBSITES

• http://www.legalserviceindia.com/legal/article-742-obiter-dictaand-ratio- decidendi-a-
tug-of-war.html
• https://byjus.com/free-ias-prep/ratio-decidendi-and-obiter-dicta-upscnotes/
• Kothari C.R. Research Methodology, Hyderabad, New Ag International Limited, 2004
• https://blog.ipleaders.in/law-precedent-reference-ratio-decidendiobiter-dicta/
• https://legaldictionary.net/ratio-decidendi/
• https://lawbhoomi.com/ratio-decidendi-and-obiter-
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