BASICS OF CASE LAW (Semester-1)

UNIT 1: INTRODUCTION TO CASE LAW

1.1
1.2
1.3 The Doctrine of Precedent or Stare Decisis Along with legislation and customs,
Precedent also serve as a source. Precedent refers to a judgment deciding a question of law,
given by the constitutional courts i.e., higher judiciary constituting High Courts or Supreme
Court and to be followed by lower courts. Lower courts are bound to follow ratio decidendi.
Since England doesn’t have any written constitution, the importance of this doctrine is more.
India follows the Doctrine of Precedent. In Bengal Immunity Ltd v State of Bihar (1955), the
Hon’ble Supreme Court of India held that the Supreme Court is not bound by its own
decision.
Different Definition of Precedent
● In general English, the term precedent means, “A previous instance or case which is,
or may be taken as an example of rule for subsequent cases, or by which some similar act or
circumstances may be supported or justified.”
● According to Gray, “A precedent covers everything said or done, which furnishes a
rule for subsequent practice.”

According to Salmond, the doctrine of precedent can be followed in two senses:

1. In strict/ rigid sense, that case law which not only has a great binding authority but
must also be followed. This view was followed till 27 July 1966 as people grew
dissatisfaction from this viewpoint due to absolute binding of precedents. The
advocates of this idea propounded that Parliament does have shortage of time to make
amendments and it would bring certainty, predictability of decision and will prevent
any unsatisfactory decision in future.
2. In loose sense, it includes merely reported case law which may or may not be cited &
followed by the courts. This view originated in nineteenth century. Some of the
advocates of this view are Holdsworth and Dr. A.L. Goodhart. On 27 July 1966,
House of Lords in Judicial Practice Statement, announced that it would no longer be
absolutely binding by its own previous decisions and said that absolute binding of the
doctrine may lead to injustice and thus, it should be done away with. Although rigid
 sense brings certainty to law, the contemporary aspirations of changing society shall
also be addressed. Following loose sense won’t alter the basic foundation of the
doctrine. Also, the law can’t be allowed to stand still while the society is changing.
The per incuriam judgments that means judgments passed in ignorance of law can’t
be allowed to be followed. The cases for same are,

Bridge v Hawkeworth 1851 HoL

South Standard Water Company v Scharman 1896 HoL

● According to Bentham, “precedents are Judge made Law.”

● According to Austin, “precedents are Judiciary’s Law.”
● Justice Blacktone supported the doctrine of precedent and said that this is an establish
practice that if the same point of law have come up before the Court then judges have to
follow the precedent.
● Justice Cardozo also supported the doctrine of precedent and said, “Adherence to the
doctrine of precedent should be a rule, not an exception. The rule of precedent can be ignored
if it is inconsistence with the notion of justice and social welfare policies.

TYPES OF PRECEDENT: Binding/ Authoritative Precedents & Persuasive Precedents

Binding/ Authoritative Precedents

Binding precedent (authoritative/ mandatory precedent) is precedent which must be

followed by all lower courts, whether lower court judges approve of it or not, under
common law legal systems. In India, Supreme Court’s decisions constitute the binding
precedents for all the lower and subordinate courts.

In Civil law and pluralist systems, as under Scottish law, precedent is not binding but case

law can be taken into consideration by the courts.

There are two elements needed for a precedent to work.

1) The hierarchy of the courts needs to be accepted, and an efficient system of law
reporting should be there. Because until the judgments won’t be reported people
would left unaware about judgments and there would be difficulty in making them act
as precedent.
 2) There should be a balance between the need for the legal certainty that results from
the binding effect of previous decisions, and the avoidance of undue restriction on the
proper development of the law.

Binding precedent relies on the legal principle of stare decisis. A stare decisis literally means
to stand by things decided. It ensures certainty and consistency in the application of law.

Persuasive precedents

Persuasive precedent (also persuasive authority) is precedent or other legal writing that is

related to the case at hand but is not a binding precedent on the court under common
law legal systems. There is no obligation on the courts to follow these precedents. However,
persuasive authority may guide the judge in making the decision in the instant case.
Persuasive precedent may come from a number of sources such as lower courts, horizontal
courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil
law and pluralist systems, as under Scottish law, precedent is not binding but case law is
taken into the consideration by the courts.

Lower Courts: If the judge believes that the lower court has applied the correct legal
principle and reasoning then that court’s opinion may be considered as persuasive authority

Higher Courts: A court may consider the ruling of a higher court that is not binding. For
example, the Supreme Court of India could consider a ruling made by the Bombay High
Court as persuasive authority.

Horizontal Courts: Courts may consider rulings made in other courts that are of equivalent
authority in the legal system. For example, the Delhi High Court could consider a ruling
made by the Bombay High Court as persuasive authority.

Statements made in Obiter dicta or judicial dicta: Courts may consider obiter dicta in
opinions of higher courts. Obiter Dicta or judicial dicta of a higher court is not binding but
will often be persuasive to lower courts.

A Dissenting judgement: A judgment heard by the Supreme Court, in which one judge
dissented from the decision. The dissenting judge’s obiter and rationale have persuasive
value.
Treatises, Restatements, Law Review Articles: Courts may consider the writings of eminent
legal scholars in treatises, restatements of the law, and law reviews. The reputation of the
author and the relevance of the argument in these literary works matter to have its
persuasive value.
Courts in other countries (foreign cases): An Indian court might cite judgments from
countries that share the common law system.

Same precedent may be authoritative for one court and persuasive for another court. For
example, the Delhi High Court’s judgments do have persuasive value for Bombay High Court
but these precedents are binding on all lower courts under its jurisdiction.

Merits of the Doctrine of Precedents

1) The doctrine brings certainty in law because if the courts do not follow this rule and
the judges start deciding and determining issues every time afresh without having regard to
the previous decisions on the point, then the law would become the most uncertain.
2) Flexibility to law is brought by this doctrine. Judges while delivering judgments are
influenced by social, economic and many other values of their age. All such values mould
and shape the law conforming to the change in conditions and thus bring flexibility to law.
3) Precedents highlight the practical solution to a problem pertaining to law. Therefore,
they are more practical than Parliamentary laws, which are more of hypothetical nature.
Precedents are the case laws deciding a real case.
4) The case laws or Precedents bring scientific development to law. In a case Justice
Baron Parke observed ‘It appears to me to be great importance to keep the principle of
decision steadily in view, not merely for the determination of the particular case, but for the
interest of law as a science.’
5) Precedents guide judges and consequently prevent them from committing errors
which they would have committed in the absence of precedents. Judges are prevented from
any prejudice by following precedents and partially because they are bound to follow
precedents. When Judiciary follows the doctrine, people’s confidence in Judiciary is
strengthened.
6) It brings flexibility of law, certainty, continuity and predictability. Besides these
qualities, it saves Judiciary’s time, keeping into consideration the amount of pending cases in
Indian Judiciary, it’s extremely important to try every way possible to save its time.

Demerits of the Doctrine of Precedents

1) There is always a possibility of overlooking authorities. The increasing number of the
cases has an overwhelming effect on the judge and the lawyer. It is very difficult for them to
trace out all the relevant authorities on the very point.
2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower
court on the horns of a dilemma. The courts faced with what an English judge called
“complete fog of authorities.”
3) A great demerit is that the development of the law depends on the incidents of
litigation. Sometimes, most important points may remain unadjudicated because nobody
brought action upon them.
4) A very grave demerit or rather an anomaly of the doctrine of precedent is that,
sometimes extremely erroneous decisions are established as law due to not being brought
before a superior court or any appeal filed against that.

1.4 The Authority of Precedents

Ratio Decidendi: Ratio decidendi is a Latin phrase that means ‘the rationale for the
decision’. In simpler words, Ratio decidendi is a legal principle derived from those parts of
legal reasoning within a judgment on which the outcome of the case depends. The plural of
ratio is rationes. The essential ground without which it would have been impossible to arrive
at judgment is ratio decidendi. And, not all reasons why judgment is given can be said ratio
decidendi, although it literally means that.
It is a legal phrase which refers to the legal, moral, political and social principles used by
a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio
decidendi is binding on lower courts through the doctrine of stare decisis. In Somwanti v
State of Punjab (1963), the Hon’ble Supreme Court clarified that obiter dicta of higher court
is not binding on the lower court, only ratio decidendi is binding on the lower courts.

The process of determining the ratio decidendi requires ‘abstraction’ which means the

mental operation of picking out quality facts from the material. The more the abstraction is,
the larger Ratio it would be. Abstraction includes (i) reading judgment again and again, (ii)
knowledge of law, (iii) application of common sense and (iv) lawyer skills. In Lakshmi Devi v.
State of Bihar case on Land Acquisition Act, 1984 (now repealed), the hon’ble Supreme
Court said that State placed heavy reliance on Lt. Governor of Himachal Pradesh v. Abhinav
Sharma 1993 and failed to check the facts of 1993 judgment. Therefore, Lawyer skills are
required as well. Ratio Decidendi must be crystal clear and has to be ascertained by the
material facts of case concerned.

Once the case is decided, it is declared res judicata, which means Parties aren’t permissible
to reopen the case after solving question of facts, when everything is decided it can’t create
further queries or conflict. The question then arises is, whether the decision would change
when the rule of law is now changed. Then no, it’s quite impossible to change past
judgments as there are a lot of orders, judgments.

Ratio decidendi also involves the holding of a particular case which would allow future cases
to build upon such cases by citing precedent. However, not all holdings are given equal
merit; factors that can strengthen or weaken the strength of the holding include:

1) Rank of the court

2) Number of issues decided in the case
3) Authority of the judges
4) Number of concurring and dissenting judges
5) New applicable statutes
6) Similarity of the environment as opposed to the age of the holding

Salmond defined the Ratio Decidendi, “It is the law applied by and acted upon by the court
or rule which the court regards as governing the case.”

Professor Doorkin, “Doctrine of precedent enables citizens to plan their conduct in the
expectations that past decisions were to be honoured in future - certainty predictability and
continuity, are not only the objective of law, but they are important because people can
foresee how courts will respond to certain types of conduct and behaviour.”

Professor Goodhart, “Ratio is nothing more than the decision based on the material facts of
the case.” Material facts are the facts that are important in order to decide the question of
law.

Criticism

● Judges can interpret facts differently

● Too much emphasis on material facts.
 Obiter Dictum
Obiter dictum is Latin phrase meaning "by the way". It is a concept derived from English
common law in which, a judgment comprises only two elements: ratio decidendi and obiter
dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter
dicta has persuasive value only.

Significance of Obiter Dicta

Statements that are not crucial, or which refer to hypothetical facts or to unrelated law
issues, are obiter dicta. Obiter dicta (often simply dicta) 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.

Under the doctrine of stare decisis, statements constituting obiter dicta are not binding,
although in some jurisdictions, such as England and Wales, they have strong persuasive
value. In other instances, obiter dicta can suggest an interpretation of law that has no
bearing on the case at hand but might be useful in future cases. 

Determining the Obiter Dicta

The 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. Even if the statement goes
through minute change, would it have affected the decision then that’s ratio decidendi, and
any change would not lead to change in judgment, that’s dicta. If so, the statement is crucial
and is ratio; whereas if it is not crucial, it is obiter.

Obiter Dicta: Jurisdiction and Dissenting Opinion

If a court rules that it lacks jurisdiction to hear a case or dismisses the case on technicality
basis, but still goes on to offer opinions on the merits of the case, such opinions may
constitute obiter dicta. 
The arguments and reasoning of a dissenting judgment (UK) or dissenting opinion (US) also
constitute obiter dicta.

● Persuasive not binding on the court.

● Support the ratio.

Mohan Das Ishar Das v A.N. Sanathan (1954) (Bombay High Court)

The Chief Justice of Bombay High Court Justice Chagla made a distinction between ratio and
obiter dicta and said that latter is an expression of opinion on a point which is not necessary
for the decision of a case. Two questions may arise before a court for its determination. The
court may determine both although 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, and the opinion of the court on the question which was not necessary to decide
the case would be on the obiter.

Judicial Dictum
Judicial dictum is an opinion by a court on a question that is not essential to its decision
even though it may be directly involved. It is not binding value rather has only persuasive
value. SUMMARY: ‘ratio decidendi’ part of the judgment that specifies the legal rationale
used to decide the case or used while delivering the judgment. Lower courts aren’t bound to
follow other left out part, which is ‘obiter dicta’ which covers the statements and
observations of judge(s) or court.

1.5 Circumstances destroying/ weakening and strengthening the binding force of

Precedent

Circumstances decreasing the binding value of precedent

1. Overruling – when the judgment is overruled, that remains no longer an authority. If

the judgment has been partially overruled, that can be cited. But, if the altogether different
stand has taken place then the precedent can’t even be cited. Supreme Court has also
overruled its own previous judgments because of change in the social outlook. For ex, In
M.P. Sharma v. Satish Chandra, the hon’ble SC held that Right to Privacy is not protected by
the Constitution. But, later on, in Justice K.S. Puttaswamy (retired) & Anr. v. Union of India &
Ors. Right to Privacy was considered as a Fundamental Right guaranteed by Constitution.
2. Reversed Judgment – when the judgment has been reversed after filing an appeal in
higher court, it’s binding value is decreased. As the intra-court hierarchy can’t reverse a
decision, only a higher court can do that.
3. Statute – a precedent can be disregarded its authority by way of passing a legislation
inconsistent to it. Parliament and State Legislatures can pass such statute for judgment
affecting nation or state respectively. For ex, In Mohd Ahmed Khan v. Shah Bano Begum,
1995, the hon’ble Supreme Court held that muslim women after divorce are entitled to
maintenance and alimony from her husband. But, law passed by Parliament made the
decision abrogated and it loses its binding value. Such judgments can be cited, but won’t
operate as precedent.
4. Constitutional Amendment – by way of amending constitution, a judgment’s binding
value can be decreased. For ex, In ADM Jabalpur v. Shivkant Shukla, 1976, decided during
emergency, it was held that even Right to life can be suspended during emergency. But, 44 th
constitutional amendment said that Right to life can’t be suspended even during
emergency, thus, decreasing the authority of ADM Jabalpur case, although it can be cited. In
Golaknath v. State of Punjab, 1967, the hon’ble Supreme Court held that no Fundamental
right can be curtailed by the Parliament. The 24th constitutional amendment of 1971
provided that the Parliament can amend any provision of the Constitution thus nullifying the
judgment of Golaknath case.
5. Ignorance of Statute – A precedent is not binding if it was rendered in ignorance of a
statute or a rule having the force of statute i.e. delegated legislation. A court may know of
existence of the statute or rule and yet not appreciate in the matter in hand. Such a mistake
also vitiates the decision. Even a lower court can refuse to follow a precedent on this
ground. Higher Court’s decision in ignorance of statute won’t be binding on lower courts
within its jurisdiction. Eg, in recent POCSO judgments of Bombay High Court, a single judge
bench of Justice Pushpa knew about the legislation but didn’t apply that.
6. Inconsistency with Earlier Decision of Higher Court – A precedent is not binding if
the court that decided it overlooked an inconsistent decision of a high court. High courts
cannot ignore decision of Supreme Court of India. In some case, the binding value of
precedent is completely abrogated.
7. Inconsistency with Earlier Decision of Same Rank – A court is not bound by its own
previous decisions that are in conflict with one another. The court of appeal and other
courts are free to choose between conflicting decisions, even though this might amount to
preferring an earlier decision to a later decision. Same rank means court of same level and
judge bench of same rank.
8. Precedent sub silentio or not fully argued – When a point is not involved in a
decision is not taken notice of and is not argued by a counsel, the court may decide in
favour of one party, whereas if all the points had been put forth, the decision in favour of
one party. Hence, such a rule is not an authority on the point which had not been argued
and this point is said to pass sub silentio.  Binding force of a precedent does not depend on
whether a particular argument was considered therein or not, provided the point with
reference to which an argument was subsequently advanced was actually decided by the SC.

Circumstances which increase the authority of a precedent

1. Statute – A precedent can be strengthened by passing a subsequent legislation

consistent to it. When Parliament or State Legislature passes a legislation supporting
the decision, its authority increases. For ex, In Shayra Bano v. Union of India, the
hon’ble Supreme Court declared triple talaq or talaq-ul-biddat unconstitutional. A
subsequent legislation Muslim Women Protection Act, passed by the Parliament
strengthened its authority or binding value.
2. Status of Court – higher the court would be, more the judgment would be
authoritative. Status of judge, the opinion of author judge further strengthens the
binding value. The number of judges constituting the bench and their eminence is a
very important factor in increasing the authority of precedent.
3. Decision being Unanimous – A unanimous decision carries more weight especially of
a larger bench. For eg, ceiling of 50% reservation was breached and it was held
permissible be the Constitution and M.R. Balaji & Ors v. State of Mysore case. The
unanimous decision in Indira Sawhney and Maneka Gandhi cases carry weight.
4. Decision that is consistently followed – other courts following the precedent,
especially the higher tribunal and consistent follow of the judgment without
questioning the rationale or principle add to its strength.
5. Other factors – Old judgment which haven’t been disturbed by way of overruling
and longer time lapse would add to the authority of precedent.
UNIT 2: BASIC PRINCIPLES UNDERPINNING CASE LAW
2.1 Reportable and Non-Reportable judgments
There are no such guidelines of deciding the reportability of judgment. It depends upon the
wisdom of judges or cases or judgments. It is not like judge X decides whether the judgment
given by judge Y is reportable or not, only a judge can choose the reportability of a
judgment given by him/ her. There are certain principles for identifying and categorizing
judgments into Reportable or Non-Reportable that are to be applied in order to curl out
whether the judgment is reportable or not.

Judgments that not only resolve dispute of the parties concerned, but also lays down
principles for similar disputes in which these principles can be applied are called Reportable
Judgments. So, all the judgments that justices think that include legal principles which can
be applied in similar cases that may arise are Reportable.

Judgments that concern only the parties involved, not including any legal principle that can
be used for future case would possibly be designated as Non-Reportable Judgments. Since
there’s no legal principle involved, then what’s the purpose of reporting the judgment.

Initially it was the practice that principles of law that will guide the future decision making
will be published. But now, it’s not so. Publishers publish all the judgments and they aren’t
bothered about whether it has been designated as reportable or not. This has also led to
exponential growth of law reports. Fali S. Nariman, Senior Advocate in his book Indian Legal
System: Can it be saved? said “Judges don’t exercise their jurisdiction judiciously evicted by
overweening while deciding that Judgments should be reported or not”.

There is no such specific criteria for categorizing reportable and non-reportable judgments.
Stephen believed that publishers shall decide the criteria.

Consequences of identifying judgment as reportable and non-reportable

(i) Marking a judgment ‘reportable’ lends creds to it.

(ii) Just because a judgment is reportable, its binding value or its importance would not
increase or strengthen or vice-versa when a judgment is tagged as non-reportable.
 (iii) The publishing enterprises such as SCC, SCR, AIR make the task easy and reader-
friendly by highlighting ratio decidendi of a judgment.

Constitutional courts could not develop any substantial standard criteria or yardstick to identify
judgments as reportable or non-reportable.

LAW REPORTING AND ITS HISTORY IS LEFT

Difference between Judgment and order:

(i) Their nature – Judgments are usually final in nature. Indian judiciary provides
opportunity to file appeal. If an appeal is dismissed by the hon’ble Supreme Court,
then one can also file for review of the delivered judgment. The grounds to file for
review are different. Appeal can also be filed through curative petition that has
been created by judicial activism through case law.
Orders are more interim in nature. Some orders are final, and these can be challenged in
review. Ordinarily, the orders are passed by the Supreme Court. Orders usually
don’t cite previous authority.
(ii) Disposing of case – Judgments usually dispose off the matter. Although, orders
are in interim in nature but that doesn’t mean orders don’t dispose off the matter.
An order may not finally decide the case but judgments finally decide the case.
(iii) In rem and in personam – Judgments are usually in rem in nature, which means
something that concerns everyone, society at large. Orders are usually in
personam in nature, which means concerning only the parties involved. Eg, the
privacy judgment delivered in KS Puttaswamy case and this recognition of privacy
is something relatively new for Indian society and concerns with everyone.
(iv) Per curiam and per incuriam – As per courts, orders are per curiam i.e., decision
made by a court of numerous judges, but without attaching a particular judge’s
name in author. Judgments are per incuriam, something that must be
distinguished.
(v) Judgments may have dissenting and concurring opinions; majority and minority
opinions. Order is unanimous, no majority and minority opinion. There can be
counter-orders with different opinions.
 A similarity between Judgments and orders is, both have binding character. Judgment
and order, both are binding and authoritative.

2.2. Do Judges make law?

UNIT 3: CASE LAW ANALYSIS

Case Law refers to the judgment delivered by Supreme Court which has some legal issue
involved in it and the judgment which is capable to act as precedent for subsequent cases.
Every judgment has important contents in it.

3.1. Citation- It is the reference number or rank in form of combination of alphabets and
digits, required by publisher for publishing the judgments. Media houses have their own
unique method for publishing the judgments. It also helps to locate a specific judgment in a
whole long collection of judgments. For example, “AIR 2007 SC 71”, AIR here stands for
publishing house All India Reporter, 2007 is the year in which the judgment was delivered,
SC refers to Supreme Court which means that a bench of Supreme Court pronounced the
judgment and 71 is the page number.

3.2. Origin- Origin of a case means from where the case has come before Supreme Court.
Supreme Court took suo moto cognizance of the case, or it was filed through appeals, or it
has been directly heard by the Supreme Court which can happen in cases of violation of
Fundamental rights, or dispute between states, dispute between state and Central
government or through advisory jurisdiction.

3.3. Constitution of the Bench- It refers to strength of judges who have decided the
case and delivered the judgment.

One judge bench ~ Single bench

Two judge bench ~ Division bench
(In case of difference of opinion between judges in a division bench, Chief Justice’s opinion
is considered or longer bench is constituted.)

Three judge bench ~ Full bench

Five judge bench ~ Constitutional bench
If same question of law is to be addressed then bench consisting higher number of judges
than earlier time should be constituted. When a constitutional case is to be resolved, or
important legal issue is to be looked after then the constitutional bench is constituted.
There is no specific formula for constitution of the bench. Until now, the largest bench has
been constituted in Kesavananda Bharati case which was 13 judge bench. Although 15 judge
bench was to constituted for reviewing the Kesavananda Bharati judgment, but then it got
dissolved.

3.4. Parties- one can know about the nature of dispute by looking at parties’ titles. For
instance, appellant and respondent shows that the case has go through one stage. Plaintiff
and Defendant shows that there is civil dispute. Petitioner and respondent shows that the
dispute involved is of criminal nature. If Supreme Court has taken suo moto cognizance then
there won’t be any parties’ name.

3.5 Index- When a case is filed in the court, there’s a case filing number, which is called its
Index.

3.6 Lawyers- Names of the lawyers appearing for the parties involved are written on
starting page. It helps in identifying the nature of case. For example, one can predict case
related to environmental issue involved by looking at the name of Advocate M.C. Mehta.
Also, late Senior Advocate Nani Palkhivala was famous for his active involvement in pro
Fundamental Rights petitions.

3.7 Judges-

3.8 Judgment- In a case, there can be several opinions, minority, majority, concurring and
dissenting.

1. Majority Opinion- it refers to the opinion of majority judges consisting same legal
reasoning, interpretation and application of legal principles for deciding the case, that would
then serve as opinion of the court because majority judges have agreed to form that
opinion. This then also forms judgment delivered in a specific case.

2. Minority Opinion- it means opinion of one or more judges who are disagreeing from the
majority opinion and thus, judgment delivered in a case.
3. Concurring Opinion - A concurring opinion agrees with the majority opinion but not
necessarily on the basis of same legal reasoning behind that opinion. In case of tie-breaker
situation, the concurring opinion forms part of majority opinion. For eg, while giving verdict
of Kesavananda Bharati case,

4. Dissenting Opinion – it refers to the opinion of judges who gave minority opinion and
disagree with legal reasoning applied by judges forming the majority opinion. In this,
minority judge explains that why do the disagree from the legal reasoning used by the
majority judges. It also provides valuable insight into the deliberative process behind a case
that can be revisited or considered in future cases.

3.9 Operative Part of Judgment – Execution or Operative part of a whole long

judgment is small as not all pages can be executed upon. Ratio decidendi of a judgment
forms its operative part or final order. For eg, whole 703-page judgment of Kesavananda
Bharati case doesn’t form its operative part.

UNIT 4: CASE BRIEF (CASE NOTING)

4.1 Importance of Briefing- Case noting or Case briefing refers to the summary of the
case. It is different from what lawyer prepares because they prepare case noting in support
of their client. Here, case briefing is done for the academic purposes. The importance of
case briefing is as follows:

i. It tells about how the case has to be structured in a manner so that it’s easy to
understand the various aspects of a case.
ii. It also tell about what all things a law student should look for while reading a case
iii. It highlights court’s interpretation of facts and question of law involved in a case
iv. It clearly demarcates each small portion of reasoning behind the judgment, which
otherwise in absence of, the judgment can be challenged in higher court through
appeal.

4.3 How to read a case?

There are various steps involved in reading a case. Each step needed to be understood.

1) Background- This step primarily talks about the origin of the case and the court which
decided the case i.e., Supreme Court, High court or Subordinate Court. It also
 includes the year as when was the case decided. Background of a case consists the
legal doctrine or principle that is involved in the case.
2) Facts- It is important to know about the facts of the case including the parties
involved and their nature i.e., plaintiff/ defendant, petitioner/respondent, appellant/
respondent. Then, it’s necessary to know the kind of defense, kind of remedy and
damages that plaintiff/ petitioner/ appellant seeks from the court
a) What side did the Court seems to be more convinced even if the Court’s
explanation of the facts seems relatively neutral. Can you identify points at which
a close question of factual interpretation as one way or other.
3) Question of law involved and how court addressed it- The question of law that a case
poses to the court is to be known about along with how the court has addressed that
question. The legal question is the key determining factor of the outcome of case and
while answering court has come up with some test is also important. The answer
given to the question should be convincing and relevant.
4) Reasoning behind court’s decision- While reading a case law, one has to identify the
arguments given by the court to justify its answer to the legal question involved. It
also includes other cases cited by court to support the delivered judgment.
5) Separate opinion- While reading a case, one has to see whether there are different
opinions i.e., majority, minority, concurring and dissenting. For concurring opinion, it
has to be looked that how concurring opinion of judge differs from the majority
opinion and what were the facts and legal issues that gave rise to disagreement. How
does a portion of concurring opinion agrees with majority opinion.
For dissenting opinion, it has to be looked whether the dissenter had the same
interpretation of facts and legal question as the majority had and how their legal
reasoning differs from majority opinion. The response of the dissenter for the
majority’s reasoning and how majority has addressed dissenter’s reasoning is to be
seen while reading a case.
6) How does the decision fit in with other cases?
a) In what way does this case address the issue that I have seen before I identified or
what cases does the fact in this case extent or modify legal reasoning that was
employed in earlier cases
b) What issue does this case left unresolved, what kind of question do I expect to
arise in the next case dealing with this doctrinal area
4.4 Elements of case brief
Step 1: Read the entire judgement

The first step of briefing the case is to go through the case carefully and note down all
important information. One should not brief the case until one have read the case at least
once.

Steps 2: Citation

The title of the case shows who is opposing whom. The name of the person who initiated
legal action in that particular court will always appear first. The citation tells how to locate
the reporter of a particular case. The following things should be there in a citation of a case:

1) Name of the Case (Plaintiff v Defendant or Appellant v Respondent)

2) Name of the Court (Where the case decided)
3) Date of decision
4) Page no. (Where case has been reported)

Steps 3: Statement of facts

Identify name, relationship shared and status of parties of the case. A good brief includes
summary of pertinent facts and legal points which are relevant to the case.

Some facts are legally relevant which are important to arrive to the judgment known as
material facts. There should be complete knowledge of material facts before preparing case
brief. Procedurally relevant facts highlight the cause of action and prayers of plaintiff and
defendant. If case reaches directly to Supreme court, then there is no need of Procedurally
Significant facts.

Steps 4: Procedural History

When the case is directly filed to the Supreme Court, then there is no procedural history. It
refers to decision of lower court if it has reached to Supreme Court through appeals. It
highlights the journey of case.
Steps 5: Issues
Issues in a case are of two types (i) substantive issues and (ii) procedural issues.
i. Substantive issues- it refers to the point of law in a dispute. It also include legally
relevant facts.
 ii. Procedural issues- it refer to the claims made by the parties and also talk about
why the aggrieved party believe that the lower court has taken the wrong decision.
If the case has been directly filed to Supreme Court, then there is not going to be
any procedural issue.
Step 6: Judgment
It means the final decision of the court to rights of the parties concerned. It has two elements,
ratio decidendi and obiter dicta.
Step 7: Holding
It is the statement of law which tells the basis on which the judgment is given. Court’s legal
statement behind the judgment is holding.
Step 8: Rule of law or Legal Principles applied
This primarily includes the authorities that have been cited by the courts to reach to a
particular judgment in a case. Important case laws of Indian Courts, any recognized foreign
court or statutory laws, constitutional laws.
Step 9: Ratio Decidendi
It refers to the legal reasoning and legal principles applied to reach to a judgment of the case.
Step 10: Concurring or dissenting opinion
The opinions with different reasoning from the majority opinion. But, the concurring opinion
agrees with the judgment of majority opinion whereas the dissenting opinion disagrees.