Obiter dicta

According to Wharton’s Law Lexicon (14th ed. 1993) ‘obiter dictum’ means an
opinion not necessary to a judgement; 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; often called as obiter dictum. Obiter dicta means statement or opinion
expressed by the judge upon a cause that is incidentally or collaterally, and not
directly upon the question before the court. According to Talbot1, J.,1 an obiter
dictum is an opinion on some point which is not necessary for the decision of the
case. The expression “observation” means a view, reflection; remark; statement;
observed truth or facts; remarks in speech or writing in reference to something
observed.2
The expression “obiter dicta” or “dicta” has been discussed in American
Jurisprudence 2d, vol. 20, at p.437 as thus:
“74. Dicta
Ordinarily, a court will decide only the questions necessary for determining the
particular case presented. But once a court acquires jurisdiction, all materials
questions are open for its decision; it may properly decide all question so involved,
even though it is not absolutely necessary to the disposition of the case, if the issue
of constitutionality is involved in the suits and its settlement is of public
importance. An expression in an opinion which is not necessary to support the
decision reached by the court is dictum or obiter dictum.
‘dictum’ or ‘obiter dictum’ is distinguished from the holding of the court in that
the so-called ‘law of the case’ does not extend to mere dicta, and mere dicta are not
binding under the doctrine of stare decisis.
As applied to a particular opinion, the question of whether or not a certain part
thereof is or is not a mere dictum is sometimes a matter of argument. And while
the term ‘dictum’ and ‘obiter dictum’ are generally used synonymously with regard
to expressions in an opinion which are not necessary to support the decision, in
connection with the doctrine of stare decisis, a distinction has been drawn between

1
Dew v. United British Steamship Co. Ltd., (928) 139 LT 628
2
Arun Kumar Aggarwal v state of M P (2014)13 scc 707
mere obiter and ‘judicial dicta’, the latter being an expression of opinion on a point
deliberately passed upon by the court.”
The Black Law Dictionary, (9th Edition, 2009) defines term ‘obiter dictum’ as a
judicial statement or expression made while delivering a judicial opinion, but one
that is not necessary to the decision in the case and therefore not precedential
(although it may be considered persuasive).- often shortened to dictum or, less
commonly, obiter. …
‘strictly speaking an “obiter dictum” is a remark made or opinion expressed by
a judge, in his decision upon a cause, “by the way”-that is, incidentally or
collaterally, and not directly upon the question before the court merely by way of
illustration, argument, analogy or suggestion…. In the common speech of lawyers,
all such extrajudicial expressions of legal opinion are referred to as ‘dicta’, or
“obiter dicta”, these two terms being used inter changeably.’”
Those judicial statement are not crucial are obiter dicta. The judges are not bound
to follow them. The opinion of judge can help in the growth of the law and also
sometimes help the cause of the reform of law. Defects in the law can also be
pointed in the obiter dicta. It is not binding as a precedent, because the observation
was unnecessary for the decision pronounced by the Court. Obiter dicta is well
settled that obiter dictum is a mere observation or comment made by the court by
the way of aside while deciding the actual issue before it. The expression of the
personal view or opinion of the Judge is just a casual remark made whilst deviating
from answering the actual issue pending before the court.3 These casual remarks
are considered as beyond the ambit of the authoritative or operative part of the
judgement.
In England, an ‘obiter dictum’ has no binding upon a co-ordinate court or upon a
sub-ordinate court.4 An ‘obiter dictum’ by the privy council or the House of Lords
would be entitled to the highest respect. But a judge would not feel that he would
be bound an opinion expressed by the higher authority. Mr. Justice Tendolkar
conceded that the Supreme Court had not actually decided this point; but the view
which the learned Judge took was that it was an 'obiter dictum' of the Supreme
Court and, according to the learned Judge, an 'obiter dictum' was as much binding

3
Anil Kumar Aggarwa V State of M.P. (2014)13 SCC 707
4
Mohandas v. Sattanathan, 56 Bom LR 1160
upon him as an express decision given by the Supreme Court.5 Palkhivala’s
contention is that in India an ‘obiter dictum’ is binding upon the Courts if the
‘obiter dictum’ is that of that of the supreme court.6

5
Mohandas v. Sattanathan, 56 Bom LR 1160
6
Mohandas v. Sattanathan, 56 Bom LR 1160