Deciphering Ratio Decidendi – A Case Study

However, it is not always easy to discern what is the ratio decidendi, especially when there is more than one judgment in a given case. These judgments may be based on different, divergent reasoning, even though the conclusion is the same. How then, is the ratio of a judgment to be ascertained. This article seeks to discuss this issue with reference to some cases where this particular conundrum arises.

Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another (1968) 3 SCR 251

In this case, the challenge was to Section 150 of the Delhi Municipal Corporation Act, 1957 on account of impermissible delegation of legislative power. A Seven Judge Bench upheld the law by a majority of 5 : 2. The majority itself was divided and three separate judgments were delivered to uphold the legislation.

• Chief Justice Wanchoo and Justice Shelat held that the Act contained certain inbuilt safeguards which saved the law from being characterized as a piece of excessive delegation.
• Justices Hidayatullah and Ramaswami took the view that the proper test to apply is not the existence of safeguards, but whether the legislative will to pay the tax is adequately expressed. In the case at hand, the legislature was held to have kept a check, making Government answerable to itself. This was not a safeguard, but indicative of the exercise of legislative will and hence, not a case of excessive delegation.
• Justice Sikri took the view that the tax was levied only for the purpose of achieving the objectives or results of the Act, and it was not necessary to rely on the safeguards to sustain the delegation.

The Order of the Court was as follows :-

"in accordance with the opinion of the majority, the appeals are allowed, the order of the High Court is set aside in so far as it is against the appellant and the writ petitions filed by the respondent are dismissed. There will be no order as to costs throughout"^[2]

Faced with these divergent views, how are we to determine the ratio decidendi of this case ? After excluding the minority judgments, is there a common thread between the views of the majority ? Seervai^[3] states that "in substance" the view of Justices Hidayatullah and Ramaswami are not different from those of Justice Sikri and so three out of the five judges in the majority (in other words, the majority within the majority) could be said to have a common view.

I submit that a different approach for the purpose of determining the ratio decidendi would be to see only if the majority of Judges on the bench agree on a view. To consider the "majority within the majority" is anomalous as that would not, in every case, represent the numerical majority.

Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225

Let us now consider the Kesavananda case, which we know as having held that Parliament cannot amend the basic structure of the Constitution. Six out of the thirteen Judges (in four separate judgments and with different reasons) took the view that the amending power of Parliament is limited. A further six judges held that there were no such limitations on the amending power. Justice H.R. Khanna, while rejecting the view that there were inherent or implied limitations on the amending power^[4], held that any amendment was required to retain the "basic structure or framework" of the Constitution^[5].

As mentioned by Shri H.M. Seervai in his article titled – "The Fundamental Rights Case at the Cross Roads^[6], 9 out of the 13 judges "took the unusual course, in spite of the opposition of 4 judges", to give a "summary of the conclusions which the majority had reached" One of the six points in the "summary", taken from Justice Khanna's conclusion was :–

"2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution."

The article goes on to state as follows :-

"(b) Though all the 13 judges signed the unanimous Order of the Court, 4 of them declined to sign the summary, a fact which shows that there was a difference of opinion among the judges themselves as to what the majority had decided, and that conflict could only be resolved by the Constitution Bench to which the petitions were remitted to be disposed of according to law. That law was to be found principally in the present Case, and no summary made by 9 judges without any argument can relieve the Constitution Bench of finding out the law for itself. If the Full Bench had decided to dispose of the petitions according to law after a further hearing - in which their judgments would have been dissected and discussed by counsel for the parties – the Full Bench could have found the law for itself. But the Full Bench disabled itself from doing so, when it remitted the petitions to a Constitution Bench." (emphasis provided)

On the contrary, Shri Nani Palkhivala, in an article titled "Fundamental Rights Case : Comment"^[7] took the view that it was the judgment of Justice Khanna that became the law. He wrote :-

"Thus, six judges decided the case in favour of the citizen and six in favour of the State. Justice Khanna agreed with none of these 12 judges and decided the case midway between the two conflicting viewpoints. He held that (a) the power of amendment is limited; it does not enable Parliament to alter the basic structure or framework of the Constitution; and (b) the substantive provision of Article 31-C, which abrogates the Fundamental Rights, is valid on the ground that it does not alter the basic structure or framework of the Constitution. But the latter part of Article 31-C, which ousts the jurisdiction of the Court, is invalid.

Thus, by a strange quirk of fate, the judgment of Justice Khanna, with which none of the other 12 judges agreed, has become the law of the land. This result follows from the fact that while Justice Khanna did not agree with the six judges who decided in favour of the citizen, he went a part of the way along with them; and the greatest common denominator between the judgments of the six judges in favour of the citizen and the judgment of Justice Khanna became the judgment of seven judges and thus constituted the majority view of the Supreme Court." (emphasis provided).

Thus, the ratio decidendi of the Kesavananda case was based on a "summary" or "view of the majority" signed by nine Judges and, as noted by Shri T.R. Andhyarujina^[8], subsequent judgments "ritualistically repeated that Kesavananda Bharati had held that the amending power of Parliament was limited by the basic structure of the Constitution without examining whether there was a ratio to this effect from the eleven judgments in the case"^[9].

It was only some years later, in Minerva Mills v. Union of India (1980) 3 SCC 625, that it was held the "summary" reflected the majority view and was, hence, the ratio in the Kesavananda case . Paragraph 12^[10] of Minerva Mills is as follows :-

"The summary of the various judgments in Kesavananda Bharati was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution". Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view". (emphasis provided)

So, conjointly, Kesavananda and Minerva Mills cases lead to the principle that where a judgment is subsequently interpreted by a Court and a ratio deduced, that would be the binding ratio.

Harper & Others v. National Coal Board (1974) 2 All ER 441

The judgment of Lord Denning, MR provides an interesting insight into interpretation of a judgment when there is no discernible ratio decidendi common to the majority judgments. The Court of Appeal was considering a judgment of the House of Lords in the case of Central Asbestos Co. Ltd., v. Dodd^[11], (a judgment by a majority of three to two and a "perplexing difference of view"). In Dodd, the question was as to when cause of action for a claim of damages would run under the Limitation Act. Two judges (Lord Reid and Lord Morris) opined that time would not run until the claimant knew he had a worthwhile cause of action. Two other judges (Lord Simon and Lord Salmon) took a different view and held that time would run as soon as all the material facts were known, even if the claimant did not know that he had a worthwhile cause of action. Lord Pearson ("the odd man out") agreed with Lord Reid and Lord Morris on the question that the claim was not barred, but he also agreed with the opinion of Lord Simon and Lord Salmon on the proper construction of the statute.

In such a situation, Lord Denning held as follows:

"One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House."^[12] (emphasis provided)

In the circumstances, the Court of Appeal held that the Court would be at liberty to adopt the reasoning which appears to it to be correct, namely the opinion of Lord Morris and Lord Reid. A point of importance is that the Court of Appeal did not accept the view of two of the three Law Lords who were in a majority (being the majority within the majority), as being the ratio of Dodd, but accepted it as a reasoning which appeared to them to be correct, which also supported the actual decision in Dodd.

In Shanti Fragrances v. Union of India (2018) 11 SCC 305, the Supreme Court has referred two issues for determination, namely the reckoning of numerical strength of Judges assenting to a particular view and whether the judgment in Harper would guide the Supreme Court in future, in determining the ratio decidendi.

Shayara Bano v. Union of India (2017) 9 SCC 1

In Shayara Bano, the challenge was to the practice of talaq-e-biddat (triple talaq). The Supreme Court, by majority, set aside the practice though the judgments took divergent views in reaching the same conclusion.

Justice Nariman (Justice Lalit agreeing) took the view that the practice of triple talaq would be included under the Muslim Personal Law (Shariat) Application Act, 1937 ("the 1937 Act") and, being a pre-constitutional legislative measure, would fall within the expression of "laws in force" under Article 13(3)(b). Thus, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III, to the extent of such inconsistency. It was held that Article 14 would apply in the context of constitutional invalidity of statutory law and such law can be struck down if found to be "arbitrary". The judgment concluded that the practice of triple talaq is manifestly arbitrary, as the marital tie can be broken capriciously and whimsically without any attempt at reconciliation. The 1937 Act was, thus, struck down as being void to the extent that it recognizes and enforces triple talaq.

Chief Justice Khehar (Justice Nazeer agreeing) held that personal law had been elevated to the status of a fundamental right and was enforceable as it is. Judicial interference with personal law could only be in a manner provided for under Article 25 and triple talaq was not contrary to "public order, health and morality", did not violate Articles 14, 15 and 21 (which are limited to State action alone), and also was not based on State legislative action. It was also held that the 1937 Act was not a legislation regulating triple talaq, and that the practice of talaq-e-biddat was considered integral to the religious denomination i.e., the Sunni Hanafi School.

Justice Kurian, on an interpretation of the verses, took the view that triple talaq is against the basic tenets of the Holy Quran and, consequently, violates Shariat. Thus, there can be no constitutional protection for such practice. On the questions of freedom of religion and whether the 1937 Act regulated the practice, this judgment agreed with the view of Chief Justice Khehar. However, on the question of whether legislation can be challenged on the ground of arbitrariness, the judgment agreed with the view of Justice Nariman.

The final order of the Court was -

"In view of different opinions recorded, by a majority of 3:2, the practice of talaq-e-biddat – triple talaq is set aside."^[13]

Given the considerable divergence of views in Shayara Bano, an exercise to find a discernible ratio decidendi would have to be undertaken. It is submitted that a subsequent interpretation of the Shayara Bano case will be necessary as, after disregarding the minority view, there is no common thread of reasoning between the majority judgments, except that legislation can be challenged on the ground of arbitrariness. As noted earlier, the exercise to find "the majority within the majority" would not give a numerical majority, as the practice of triple talaq has been declared as unconstitutional on wholly different grounds by the majority.

Conclusion

The above case study clearly indicates some of the difficulties in ascertaining the precedential effect of decisions in which no clear rationale can be established from the decision that enjoys majority support^[14]. While waiting for the matter to come up for consideration in the reference in Shanti Fragrances (supra), the following are some conclusions that can be presently drawn :-

Opinions of judges in the minority cannot form part of the ratio decidendi of a case as they are not reasons for the Court reaching its decision^[15]. So the minority judgments must be completely disregarded from this exercise.

The reasons of the majority ought to be accepted, provided such reasoning can be discovered. In the writer's view, the reasons of the majority should not be ascertained with reference to the "majority within the majority".

If no such reasoning of the majority can be discerned, a subsequent Bench is at liberty to adopt the reasoning that appears to be correct, provided it is in accordance with the with the decision of the Court.