News By/Courtesy: Varsha Subramaniam | 15 Nov 2020 7:03am IST

HIGHLIGHTS

  • The Obiter Dictum is problematic since it does not confirm with the constitutional mandate of Article 226 of the Constitution.
  • The Obiter Dictum is problematic since it essentially takes away the power of the High Court where the Central Act or Provision has been subsequently challenged.
  • The obiter dicta of the Supreme Court are entitled to considerable weight and normally even an

The Obiter Dictum is problematic since it does not conform with the constitutional mandate of Article 226 of the Constitution. Article 226(1) specifies that the power conferred is to be exercised within the territorial jurisdictional limits of a High Court. Article 226(2) merely provides that (i) such power can be exercised by any High Court, provided that whole or part of the cause of action arises within its territorial limits and (ii) such power is not to be confined only because of the reason that such Government/authority/person is not located within the territorial limits of the particular High Court.

Based on the aforesaid, there is no indication that the territorial jurisdictional limitation expressly placed by Article 226(1) is wholly exempted by Article 226(2) with respect to Central Legislations. The only exemption provided in Article 226(2) is that the power conferred can be exercised notwithstanding that the relevant Government/authority/person is located outside the territorial limits of the High Court. However, this is no way extends to an interpretation that any such order passed in exercise of the power conferred by Article 226(1) will apply to the whole of the country when the question at hand involves a constitutional challenge to Central Legislations.

Furthermore, the Obiter Dictum is problematic since it essentially takes away the power of the High Court where the Central Act or Provision has been subsequently challenged, to adjudicate on the constitutionality of the same (if it has already been adjudicated by another High Court previously). This problem is aggravated if an act or provision has been upheld as constitutional by one High Court and other High Courts are thus precluded from interfering and rendering an opposite finding to protect the rights of the people. It is pertinent to note that an order of the nature described in Para 22, is not qualified to be an order striking down or staying a Central Legislation as unconstitutional, and it could also be an order upholding its constitutional validity.

A further outcome of such a scenario is that it results in stifling of different interpretations and contrary opinions from arising, which also means an alternate view is not available to the Supreme Court if and when the constitutional challenge reaches there.

As provided in Article 141 of the Constitution and as reiterated by the Supreme Court in the case of Bengal Immunity Co. v. the State of Bihar, all courts within the territory of India including the High Courts are bound by the judgments of the Supreme Court. The only court that is not so bound is the Supreme Court itself.

Even an obiter dictum of the Supreme Court may bind the High Courts in the absence of any other direct pronouncement on that question by the Supreme Court. The obiter dicta of the Supreme Court are entitled to considerable weight and normally even an "Obiter Dictum" is expected to be obeyed and followed.

However, although the obiter dictum of the Supreme Court should be accepted as binding by High Courts, it does not mean that every statement contained in a judgment of the Supreme Court would be attracted by Article 141. The same was held by Kerala High Court in the case of the State of Kerala v. Parameswaran Pillai and relied upon by Supreme Court in Municipal Committee, Amritsar v. Hazara Singh. It was further held that 'Statements on matters other than law have no binding force.

In Ambica Industries, it was held that a High Court exercises its power to issue a writ of certiorari and its power of superintendence only over subordinate courts located within the territorial jurisdiction of that High Court or if any cause of action has arisen within such territorial jurisdiction.

 

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. 

Section Editor: Pushpit Singh | 15 Nov 2020 18:27pm IST


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