Friday, 4 February 2022

OBITER DICTA

 OBITER DICTA: AN ANALYSIS 

Obiter dictum  phrase meaning “that which is said in passing,” an incidental statement. Specifically, in law, it  refers to a passage in a judicial opinion which is not necessary for the decision of the case before the court.  Obiter dicta an important element of a judgement is not material to the final decisions of the case, however these remarks are respected and tend to carry significant weightage and value in future cases and acts as a guide to the judges. Over the span of judgment a judge

may mention objective facts not absolutely pertinent to decide the issue.. These obiter dicta are useful to excuse law just to propose answers for issues not yet chosen by the Court. For instance the right to live in a pollution free environment, there is a bench of three judges and two agree that right to live in a pollution free  should be included in in article 21 and one judge gives his reasons which is different from the other two judges, although it hardly matter to the decision of the court.

For instance the most relevant case that highlights the relevance of obiter dicta and how it was beneficial to other future cases in order to pronounce their verdict was the of  case  Kasturilal here the appellant Kasturilal Ralia Ram Jain, was taken into custody for suspicion of possessing stolen property, he later was released from jail, the police returned the silver but the gold was not returned. Ralia Ram made repeated requests for its returns but was unsuccessful, therefore he went on to file a suit against the respondent(the police officers) and demanded that the god was returned or its value be pained with interest. The constable who took the gold has run away to Pakistan and the police department claimed that they could not be held liable. The mains issues of the case was whether the police offers in question guilty as they failed to take care of the gold in custody, was the respondent liable to compensate the applicant for the loss due to negligence of public servants employed by the state and whether the tort of negligence committed by a public servant in discharge of his statutory function be categorised under sovereign powers and held liable? However the court decided that the police officers in the exercise of their sovereign powers were allowed to arrest a person, search him and seize his property. The court also added that the although it was negligent on the part of the respondents’ employee but the employee himself was

discharging his sovereign powers.Hence, The state was held to be not liable. 

 Justice Gajendargatkar cited the obiter dicta for this case , expressed his dissatisfaction by stating that "Our only point in mentioning the Act is to indicate that the doctrine of immunity, which has been borrowed in India in dealing with the question of the immunity of the state in regard to claims made against it for tortious acts committed by its servant, was really based on the Common Law principle which has now been substantially modified by the Crown Proceedings Act. In dealing with the present appeal we have ourselves been disturbed by the thought that a citizen whose property was seized by the process of law, has to be told when he seeks the remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in Law. The remedy to cure this position, however, lies in the hands of the legislation”. 

Subsequent to this judgement  a report on the ‘Liability of State in Tort’  the law commission of India recommended a legislation prescribing state liability and on this basis the “The Government (Liability in Tort) Bill 1967” was introduced in the Lok Sabha, although it has not been passed, the bill aims at holding the state liable for the negligence of its servants, agents and individual contractors employed by it. The Kasturilal case is a precedent case that is referred to by many judges to decide present day issues on matters relating to state liability.  Subsequent judgement’s like the Bhim Singh case where the the court granted compensation to the appellant as he was prevented from attending the assembly session and the Rudra Shah case where court granted compensation for the delay in release from prison.



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