Types _ Sources of LawConstitution

Constitution 

The Constitution differs from legislation in so far as legislation finds its authority in the Constitution while the Constitution is the ultimate source and its authority lies in the political fact that it has been so accepted. – 

A Constitution may be the fundamental law of the land or it may simply be a political document. Our Constitution is the fundamental law of the country. Its provisions lay down binding rules, violation of which can be checked and remedied through court action. But there are Constitutions like that of China, which simply lay down the rules for the guidance of the governance and their violation may be checked only at the political level. 

Custom 

Custom is the oldest and most important source of law, though its importance is now diminishing with the growth of legislation and precedent. Custom means ‘uniformity of conduct of people under like circumstances.’ Holland says that custom is a generally observed course of conduct. 

Salmond opines that custom embodies those principles as are acknowledged and approved, not by the power of the State but by public opinion of the society at large. He states: “Custom is the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility.” 

According to Herbert Spencer, before any definite agency for social control is developed there exists a control arising partly from the public opinion of the living, and more largely from the public opinion of the dead. Thus, it is tradition passing from one generation to another that originally governed human conduct. This tradition is called ‘custom’. 

Keeton defines “custom as those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by court and applied as a source of law because they are generally followed by the political society as a whole or by some part of it.” 

According to Halsbury “custom is some kind of special rule which is in actual existence or possibly followed from times immemorial and which have acquired the force of law in specified territory, although it may be contrary or inconsistent with the general law of the land.” 

Reasons for Recognition of Customs

Custom necessarily involves two conceptions, namely, (i) the conviction or faith, and (ii) constant use. It is presumed that customs must have been followed on account of their utility and also because they enjoyed the express or implied sanction of the society. Custom played a considerable role in the evolution of early law. It provided material for other law-constituting agencies, especially legislation. Psychologically it is easier to secure obedience for a code if it is based on an established custom. It is too great an effort to create law de novo (afresh). 

It is not always necessary that the court should recognize all the practices which are prevalent in a community as custom. In other words, such customs are not obligatory (viz. wearing black clothes at a funeral procession). On the other hand, there are certain customs which are binding and are enforceable by a court of law since they are backed by the sanction of the State. For instance, a Hindu marriage solemnised without the performance of Saptapadi is not legally valid and can be set aside by the court. 

Kinds of Customs 

A custom may not necessarily be practised all over the country. Further, the Privy Council and the courts in India have accepted the principle that a clear proof of usage would override the written text of law. Thus, a custom may be either (1) conventional or (2) a legal custom. 

(1) Conventional Custom 

A ‘conventional custom’ is also called ‘usage’, viz. certain trade practices. Its authority is conditional on its acceptance and incorporation in the agreement between the parties bound by it. A conventional custom should be reasonable and be consistent with the statute law; a usage which is contrary to any express condition laid down in a contract shall not be enforceable by law. 

Before becoming a part of the law, such customs pass through three stages: (i) they should be proved before the court as a question of fact, (ii) the court takes judicial notice of them and they are established as a precedent, and (iii) the custom is embodied in a statute and takes its final shape. 

A conventional custom may either be ‘local’ or ‘national 

general’. Local conventional customs are limited to a particular place or market or to a particular trade or transaction it may be noted that unlike usage, a custom is binding irrespective of the consent of the parties to be bound thereby. Further, a usage, unlike custom, need not be of immemorial antiquity 

(2) Legal Custom

Legal customs are those which are operative per se as binding rules of law independent o f any agreement between the parties. Legal customs are o f two kinds: (i) Local/ special custom, and (ii) General custom. 

When the word ‘custom’ is used simpliciter it refers to local custom. A local custom can derogate from the general or common law of the realm, but not from statute law A local custom in India is further divided into (a) geographical local (limited to a particular locality —town, district, etc.) and (b) personal local (limited to a sect or family e.g a ‘family’ custom amongst the members of a particular tribe). Sometimes, certain sects or families take their customs with them wherever they go. They too are called local customs 

A ‘general’ custom prevails throughout the realm i.e. binds all the persons within a community and constitutes one of the sources of the common law of the country. It is treated to be part of the law of the land. It should not be in conflict with the common law or statute law. Common law of England was once thought to 6e derived from general customary law, but now it is established that it is derived from judicial precedents. 

Theories regarding Transformation of Custom into Law 

There are two theories in this regard: Analytical and Historical theory. According to Analytical theory (John Austin), custom derives its binding force not from its Own nature but by State recognition. A customary rule may become a legal rule either by recognition through a statute law or by a precedent. Being of a persuasive value, custom is considered as a historical material source of law. Austin thus concluded that “customary law is nothing but judiciary law founded upon anterior custom”. 

Holland also called custom as law when it is recognized by a court through its decision. Salmond, too, supported this view. However, he said that a custom becomes law when it satisfies the conditions prescribed by the law which are necessary for its legal validity. Custom is, therefore, rightly treated as a legal material source of law. 

Allen criticised Austinian theory of customary law on the ground that the customs are recognized not because the court or legislature gives them sanctity of law but because they are treated as law by the community as a whole and people feel themselves bound by them. 

According to Historical theory (Savigny, Puchta, Blackstone and Maine), law has its existence because of the common consciousness of the people and “customary observance is not the cause of law but the evidence of its existence”. Savigny observed, “customary laws completely modify or repeal a statute; it may create a

pew law and substitute it for a statutory rule which it has abolished”. Thus, customs give authority to precedent and 

statute law. Maine regards custom as a formal source of law. He regarded custom “posterior to that of Themistes (awards dictated by the King or Goddess of justice) or judgments”. 

According to Savigny, customary law is the real law of the people, while the rest is only a superimposition. This is true because good and successful laws represent the legitimate aspirations of the people. However, in the present-day highly technical and advanced society, one cannot completely rely on custom as a source of law. It is only in traditional and tribal societies that the custom is the major source of law. In contemporary society its inadequacy to meet the fast changing situations is beyond doubt in so far as customs cannot suddenly be created to meet a situation. 

Essentials of a Valid Custom 

There is more than one reason for attributing to custom force of law. Firstly, it is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Secondly, the existence of an established practice is the basis of a rational expectation of its continuance in the future. It is, however, not the development of any practice, as such, that qualifies to be a legal custom; say, of wearing black at funerals. 

To acquire the force of law or become a source of law, custom must satisfy the following conditions: 

(i) Custom must be ancient – A custom cannot be created in a day. It must be of long standing. Unlike England where a custom should have existed from time immemorial, in India long usage or observance is enough and, thus, even a 20-year old custom may be recognized. 

Under English law, however, living memory is now substituted, by legal fiction, for legal memory. Now if a person proves the existence of a particular practice for a substantial period, i.e. if no living person could show the beginning of that practice in his life-time, existence of a custom since 1189 is presumed, unless rebutted. In India, the courts have sanctioned a custom on proof of a period of longevity varying between 20 to 50 years. 

(ii) Custom must be continuous, certain and precise – The custom must have been in use continuously and it should not be vague or indefinite. Its existence must be proved by clear and unambiguous evidence.

(iii) Reasonableness – A custom is reasonable if no good legal reason can be assigned against it. Further, it is not that a custom will be admitted if reasonable, but that it will be admitted unless it is unreasonable. 

The reasonableness of a rule is not to be judged by the contemporary judicial standards, but by those prevailing at the date of its inception. If it does more mischief than good, then it should be discarded. A custom among Jat Sikhs o f Punjab which permitted a woman expelled and deserted by her husband to remarry was held reasonable; but not the practice which authorised a woman to desert her husband at pleasure with a view to marry someone else. Similarly a customary rule prejudicial to a class and beneficial to few cannot be reasonable viz. begar by harijans for higher castes. Immoral customs and those abhorrent to decency are also unreasonable viz. a custom permitting marriage with a daughter’s daughter. 

(iv) Conformity with statutory law – No custom however old or reasonable can stand if it conflicts with a statute or legislation. 

‘By no length of desuetude’, observes Salmond, ‘can a statute become obsolete and inoperative in law and by no length of contrary usage its provisions can be modified in the smallest particular’) 

Custom must have obligatory force – The custom must have been 

“as of right”. Because without this it cannot be said that it exerts obligatory pressure to conform. The custom must have been followed openly, the necessity for recourse to force. 

What distinguishes a legal custom from a mere convention is the opinio juris sine necessitatis – the ‘feeling of being bound’. The stark test of a custom is the growth of conviction that it shall be followed whenever a proper occasion arises. Facultative or optional enjoyment of a practice robs it of the vitality so essential to transform it into a binding rule of law. 

Usage and Custom – The terms are often used interchangeably, but there is a clear distinction between the two. Usage represents the twilight stage o f custom. Custom begins where usage ends. ‘A custom is such a usage as hath obtained the force of law’. 

(vi) Consistent with morality and public policy – Customs must not be inconsistent with morality, public policy and other customs in some area. In a case, the court refused to recognize a custom claimed by prostitutes of adopting daughters because it would perpetuate prostitution.

Legislation 

Today, legislation is the most important and biggest source of law. The term “legislation” means the ‘making or the setting of law’. Legislation is that source of law which consists in the declaration of legal rules by a competent authority e.g. Parliament or State legislatures. Thus, legislation is a deliberate process of legal evolution which consists in the formulation of norms of human conduct in a set form 

through a prescribed procedure by agencies designated by the Constitution. 

Legislation may be of two kinds – supreme and subordinate legislation. When the sovereign authority itself makes the law, it is supreme legislation. Subordinate or delegated legislation is by any other authority than the sovereign, by virtue of powers delegated to it by the sovereign, and subject to the control of the sovereign. The supreme legislation is not superior to the Constitution and it is subject to various constitutional limitations e.g. a legislation which infringes the fundamental rights of citizens is invalid. Further, supreme legislation cannot delegate the “essential” legislative functions which relate to the making of policy. 

In our legal system. Acts of Parliament and the ordinances and other laws made by the President and Governors, is ‘supreme’ legislation. Examples o f ‘subordinate’ legislation includes rules, regulations, bye-laws, orders, directions, notifications, etc. made by various authorities such as corporations, municipalities, universities, government departments. Supreme and High courts, etc. The amount of subordinate legislation far exceeds the amount of supreme legislation. In order to ensure that delegated legislation is not misused, it has been 

subjected to: (i) Procedural control (prior consultation, prior publicity and publication), (ii) Parliamentary control, and, (iii) Judicial control (doctrine of ultra vires, etc.). 

The general principle is that a delegate is not able to delegate further i.e. the maxim Delegatus non potest dele gare. Thus, “sub-delegation” of delegated legislation without express authority would be invalid. It may be noted that delegated legislation is different from ‘conditional legislation’ in which the law is complete in itself and certain conditions are laid down as to how and when the law should be applied by delegatee (e.g. lo bring it into force in an area or at a particular time). 

Advantages and Disadvantages of Legislation 

Salmond said: “So great is the superiority of legislation over all the other methods of legal evolution that the tendency of the advancing civilization is to acknowledge its exclusive claim, and to discard the other instruments as relics of infancy of law”.

(i) Certainty and precision – Statute law leads to greater certainty as it is clear, easily accessible and knowable as compared to other sources of law – a coin of the realm ready for immediate use. 

However, multiplicity of statutes on the same issue, with amendments and alterations superimposed makes it a ‘disjointed series’ of particular rules. Moreover, modern statutes are so numerous and so complicated that an ordinary citizen knows little of their breach till he actually lands in trouble for their violation. 

(ii) Instrument o f legal reform – The creative power of legislation is beyond doubt. It is not merely a source of law but as a destructive and reformative agent it has no equivalent. Legislation takes into account the needs of present- day society. Thus, in recent times, legislation like Dowry Prohibition Act, Environment (Protection) Act, Consumer Protection Act, etc. have been enacted. Legislation may be resorted at any time to change the existing law or create a new law. 

However, this ‘dynamism’ of legislation appears in sharp contrast to the rigidity it introduces in law. The legislation must apply equally in disregard of needs of individual justice in a particular case. 

(iii) Conforms to natural justice – Legislation satisfies the requirements of natural justice since laws here are known before these are enforced. Then statutes are prospective in operation leaving vested rights untouched. However, the tiniest statutes are made retrospective. 

Conclusions – Legislation is, undoubtedly, the most powerful instrument of legal growth. It is indispensable, keeping in view the complexities of modem society, for the efficient regulation of human relationships in our days. 

Rules of Interpretation of Statutes 

It is not possible for the legislature to foresee all situations, while drafting laws i.e. modem Acts and Rules. Thus, it is quite often that one finds courts and lawyers busy in unfolding the meaning of ambiguous words and expressions and resolving inconsistencies. The age-old process of the application of the enacted law has led to formulation of certain ‘rules of interpretation or construction’. According to Salmond, “Interpretation or construction is the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed’’. In short, interpretation refers to ‘actual finding of true meaning of a particular word in a statute’. 

Liberal.and strict interpretation are two major types of interpretation. The literal or -strict interpretation is confined to the ‘letter’ i.e. actual words used in statute. The liberal or logical interpretation permits departure from the letter of law. Social welfare

legislations (e.g. Rent Act, Industrial and Labour legislations, etc.) are construed liberally, while fiscal statutes (I.T. Act) and penal statutes (Cr. P.C., Law of Limitation) are construed strictly 

The rules of interpretation followed by courts are: 

1. Heydon’s rule (Mischief rule) – The ‘oldest’ or ‘classical’ rule of construction it was laid down in Heydon’s case (1584) that for the true interpretation of all statutes in general the four things are to be considered: (i) What was the law before the making of the Act (history, etc.), (ii) What was the mischief and defect for which the law did not provide any limit, (iii) What is the remedy the Act has now provided, and (iv) What is the reason of providing that remedy. The rule then directs that the courts must adopt that construction which “shall suppress the mischief and advance the remedy” pro bono publico. This rule is very rarely applied in India. 

2. Literal, grammatical or plain meaning rule —It means to give to the words their ordinary, natural and grammatical meaning prima facie. This has been called the “safest rule” because the legislator’s intention can be deduced only from the language through which it has expressed itself. However, the rule fails to take into account that the essence of law lies in its ‘spirit’ and not in its ‘letter’. A strict adherence to this rule is not possible; departure is inevitable in so many circumstances. 

3. Golden rule —If the strict literal interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose of legislation will be put on the words, if necessary even by modification of the language used. On the face of it, this rule solves all problems and is, therefore, known as the ‘golden rule’. The court would, however, go not beyond what is absolutely necessary in a practical situation, as it cannot extend the meaning and scope of the statute. 

4. Beneficial/ Equitable construction rule – This rule permits the judges to construe liberally. When the statutory words are capable of two meanings preference should be given to that meaning which produces the more reasonable and just result, as the justice and reason constitute the great general legislative intent in every piece of legislation. For instance, socio economic legislation with the object of securing social welfare is not meant to

be interpreted narrowly so as to defeat its object, viz. Workmen’s Compensation Act, Equal Remuneration Act, Juvenile Justice Act, etc. 

5. Harmonious construction rule – This rule lays down that “every effort should be made to give effect to all the provisions of an Act by harmonising any apparent conflict between two or more of its provisions”. It is to prevent or avoid inconsistency or repugnancy between two sections or within a section or between different provisions of a statute or between the two statutes. 

Precedent 

In a common law system like ours precedents constitute a very important source of law. It means the employment of past decisions as guides in the moulding of future decisions. 

Galinond defines precedent as “the making of law by the recognition and application of evVrules by the courts themselves in the administration of justice”. A judicial precedent jSajudicial decision to which authority has in some measures been attached (Keeton). The doctrine of precedent provides the evidence of what the law is at a particular time, judicial precedent is purely constitutive in nature and never abrogative i.e. it can create law but cannot abolish it. The Judges are not at liberty to substitute their own views where there is a settled principle of law. 

A precedent may be authoritative (i.e. having a binding force) or persuasive (i.e. which the Judges are under no obligation to follow but which they may take into consideration). The persuasive precedents are merely historical sources viz. Foreign judgements, Judicial dicta (obiter dicta). Authoritative text books and commentaries. 

Precedents get authority from various factors. For instance, the power exercised by these courts (Supreme and High Courts) is one such fact which invests authority and elevates them as precedents. These courts exercise power of judicial review; this enables them to lay down original precedents i.e. precedents which lay down new principles of law. In England, as these courts have lost such power o f review, there are only declaratory precedents. 

Do Judges Make Law? 

It is a debatable question as to whether judges make law or simply declare an existing one. According to the declaratory theory of precedent, judges are merely law finders and not law-makers. Blackstone said that judges did not create any new principles of law through their decisions but simply put a stamp of authority on the already existing principles of law in the society. The judges either apply the

Constitution or a legislation or a custom to come to a conclusion. Coke said that judicial decisions are not the source of law but as the proof of what the law is. 

A number of jurists like Gray, Holmes, Dicey, Salmond and others have proved beyond doubt that judges not only declare law but also make it through their decisions. The law of torts is almost entirely a creation of judges through their decisions. Dicey said that the best part of the law of England i.e. common law is judge-made law. Bacon observed that there frequently arises novel cases or cases of first impression which the judge has to decide without the assistance of any predetermined legal rule. The principles laid down by judges in such cases are bound to be a distinct contribution to the existing law. Judges may give a new meaning to the existing law which becomes a new law (Law- making theory). 

Constitutional cases decided by the Supreme Court are binding and are “law”. However, the judge has to interpret and make law only within the material given by the Statute. In Devki Nandan Agarwal v Union o f India (AIR 1992 SC 96), the Supreme Court held that the power of judges to interpret statutes is not unlimited. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The court shall decide what the law is and not what it should be. The court cannot add words to a statute or read words into it which are not there. The court will adopt a construction which can out the obvious intention of the legislature but could not legislate itself. 

Conclusions – True, the primary function of a judge is to adjudicate the conflicting claims and not to lay down a new law, but he cannot refuse to decide a case on the ground that the law is silent or obscure on the point. The legislation or legal rules cannot take into account all the situations or circumstances that may arise in the future. In the process of adapting law to new circumstances the judges very often extend the law. 

In conclusion, we can say that ‘by removing ambiguities, clarifying obscurities and harmonising antinomies the judges impart to the legal system that certainty and clarity without which it would be reduced to the level of mere futility. There is in bold relief the creative power of the judicial process as a source of law’. The function of the precedent will be to supplement, to interpret, to reconcile and to develop the principles which a statute contains. 

Legislation v Precedent (Statutory Law v Case Law) 

Legislation has its source in the law-making will of the State, precedent has its source in the ratio decidendi and obiter dicta of the judgement of a court.

Legislation is the formal and express declaration of new laws or rules by legislature; precedent is the creation of law by recognition and application of laws or rules by the courts in the administration of justice. 

Legislation is a formal general declaration of law in abstract while in precedent law is created by its application to a specific situation. Thus, precedent is more practical. It is the extreme manifestation of ‘law in action’ – application of certain principles to specific fact situations. 

Legislation is generally made for future transactions (prospective operation), but precedent is always created with respect to past transactions (retrospective operation). Thus, parties are governed by a law which did not exist at the time when the transaction took place. While in case of legislation, the law becomes known to the people in advance. 

Legislation is more coherent and certain, and it is easier to get the law as compared to the difficulty in finding the precedent. Over ruling o f earlier decisions and conflicting decisions of superior courts make the precedent uncertain. 

Precedent has another drawback. Sometimes an erroneous decision is established as law due to not being brought before superior court. This is not so in case of legislation which can change a ‘wrong’ or ‘unpopular’ law at any time. 

Legislation is rigid and must apply equally in disregard of needs of individual justice, while precedent has the flexibility of being moulded and applied according to the needs of individual cases. Thus, precedent brings flexibility and scientific development in law. And, precedent has greater justice than legislation. 

Doctrine of Stare decisis 

According to the doctrine of stare decisis (“let the decision stand in its rightful place”), when a point of law has been once settled by a judicial decision, it forms a precedent which is binding and must be followed. It is this binding nature of certain judicial decisions that makes precedent an independent as well as an important source of law in common law jurisdictions (British Commonwealth including India, U.S.A.). But in civil law countries- France, Germany, Italy, Japan and Latin American countries), no single decision, even the highest court, is absolutely binding. The rationale being that if an erroneous decision has been given it ought not to be allowed to spread and so as to corrupt the judgement of other judges- Decisions should be based on laws, not on precedents. 

In India, precedents constitute a very important source of law. The Supreme Court in a case observed that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary

circumstances or special reasons to do so. The Supreme Court may depart from a previous decision if it is convinced of its error and its beneficial effect on the general interests of the public(Bengal Immunity Co. v State o f Bihar AIR 1955 SC 661). 

The most serious charge against stare decisis is that it tends to make the law a ‘wilderness of single instance’, since legal issues are infinite in number and are infinitely various. Austin comments: “It is to the bulk of the community absolutely unknown and unknowable… even to the mass of lawyers it is imperfectly known and liable to be misconceived”. The enormous bulk of judge-made law poses a serious danger to the very future of stare decisis. 

On the question of suitability of stare decisis to Indian conditions, the Law Commission of India opined: “The system was so bound up with the growth of law and judicial development in India that it was not practicable to go back upon it at the present stage even if the taking of such a step was desirable”. In its 14th Report, it observed that if decisions of superior courts or even of the same courts are not to be regarded as binding on the judges, it will be impossible for individuals to regulate their future conduct relying on any particular view of law. 

The operation of the doctrine depends upon the hierarchy of the courts. A court is bound by the decisions of a court above itself in the hierarchy and, usually, by a court of equivalent standing. In India, the decisions of the Supreme Court and the High Courts are binding over their subordinate courts and tribunals. The authority of the Supreme Court decisions as precedents is enshrined under Art. 141 of the Constitution – “The law declared by the Supreme Court shall be binding on all courts within the territory of India”. 

A High Court Whether Bound by the Decision ofAnother High Court? 

Single Bench of a High Court is bound by the decisions of a Division Bench of that court and a Division Bench by the decision of a Full Bench (except that the latter Division Bench has the right to refer the case to a Full Bench for reconsideration of the earlier decision in the event of the disagreeing with the view of the former Division Bench). However, the decision of a High Court has only persuasive authority outside the territory subject to its jurisdiction (Law Commission, 14th Report). Thus, a High Court is not bound by the decision of another High Court. 

Supreme Court Whether Bound by Its Own Decisions? 

The Supreme Court of India is not bound by its own decision. It can overrule its own decisions. For instance, ‘right to die’ once considered as unconstitutional was recognised as an implied fundamental right by the Supreme Court and now, again, recently, declared as unconstitutional by the Supreme Court. The expression ‘all

courts, in the territory of India’ (Art. 141) clearly means courts other than the Supreme Court. 

Doctrine of Prospective Overruling 

If the courts merely declare pre-existing law. It logically follows that an overruled decision operates retrospectively. This caused considerable hardship and injustice to the affected parties who relied and acted on previous decisions. In order to avoid such hardships the doctrine of Prospective overruling provides that the case before the court is determined under the old principle but caution is given that future cases will be decided according to the rule newly created. In other words, it was not to operate retrospectively 

The Supreme Court of India restricted the effect of Golak Nath case (AIR 19 5 7 1642) to future cases only by applying this doctrine. Since that case, the Judges in India apply the existing law to past transactions and newly created formulation to future instances 

Ratio decidendi and Obiter dicta 

Every statement made in a judicial decision is net an authoritative source to be followed in a later case presenting a similar situation. Only those statements in an earlier decision which may be said to constitute the ratio decidendi of that case are held to be binding as a matter of general principle in subsequent cases. 

The part of a case that is said to possess authority is the ratio decidendi, i.e. the rule of law upon which the decision is founded. What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Thus, ratio decidendi of a case can be defined as the material facts o f the case plus the decision thereon. A case may have not one but several ratio decidendi (e.g. different opinions of different judges in a case). The judgement in a precedent must, moreover, be read secundum subjectam materiem; it is a judgement in relation to the facts of a particular case and the judge may not be laying down a rule for any case other than the one before him and precisely similar cases. 

Obiter dicta – In simple terms, it refers to the observations made by a court in a particular case. All that is said by the court by the way or the statement of law which goes beyond the requirements of the particular case are obiter dicta (e.g. hypothetical facts, illustrations and casual expressions). The judges are not bound to follow them though they can take advantage of the same. The obiter dictum may be respected according to the reputation of the judge, the eminence of the court, and the circumstances in which it came to be pronounced. The reason for not regarding an obiter dictum as binding is that it was probably made without a full consideration of the cases on the point.

Nevertheless, they (obiter) are important as not only do they help to rationalise the law but also they serve to suggest solutions to the problems not yet decided by the courts. It may be noted that the Allahabad, Bombay, and Karnataka High Courts have held that the obiter dicta of the Supreme Court is also ‘Law’ within the meaning of Art. 141 of the Constitution, and hence, binding on all Courts