Legal Notes by Arvind Datar: The Precedential Value of Minority Judgments

The general belief is that the ratio decidendi is contained in the majority judgment and nothing said in the dissenting judgment has precedential value. However, this is incorrect and it has been held that if four issues arose for consideration before the Supreme Court and the majority has expressed its views on three, but the dissenting judge takes a view on the fourth issue, it will be a binding precedent.  

While there are no Supreme Court decisions on this point, there are a few interesting High Court decisions that merit consideration.

In the famous decision in KT Moopil Nair v State of Kerala AIR 1961 SC 552: (1961) 3 SCR 77, the Supreme Court, inter alia, held that a flat tax of ₹2 per acre irrespective of the nature of land was violative of Article 14. One could not impose the same tax on wet lands and dry lands. The court held that treating unequals equally violated Article 14 and the absence of proper classification could also result in a statute being held ultra vires Article 14.  

One question which arose before the Supreme Court was whether the impugned levy, although purporting to levy tax on land, was really a tax relating to forest. 

It was argued that this levy would not come within the purview of Entry 18 of List II read by itself or read with Entry 45 of List-II. It was really a law relating to forests under the erstwhile Entry 19 of List II (which is now Entry 17A of List III) and taxation was permissible only on land and buildings under Entry 49 of List II. Therefore, a tax on forests would be invalid. In the Moopil Nair case, the majority noted this submission but did not deal with it. 

However, Justice AK Sarkar in his dissenting judgment dealt with this submission and held that the power to tax land and buildings under Entry 49 of List-II would include taxation of land on which there is a forest. Thus, the levy was valid on the ground that related to legislative competence.

When this contention came before the Kerala High Court in a challenge to another enactment, Justice Vaidyalingam (as he was then), observed that since there was no adjudication by the majority in the Supreme Court, he was bound by the minority view of Justice Sarkar on this point and held that the State Legislature had the competence to levy tax on land on which forests stood. [V. Padmanabha Ravi Varma Raja v Deputy Tahsildar AIR 1963 Ker 155: 1962 SCC Online Ker 98- para 203].  

A similar view was taken by the Bombay High Court in Mahinder Bahawanji Thakar v S.P. Pande AIR 1964 Bom 170: 1963 SCC Online Bom 28. This judgment pointed out that Article 141 makes the law declared by the Supreme Court to be binding on all courts within the territory of India. 

The law declared by the Supreme Court must be understood from Article 145(5) which reads as follows:

          (5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

The Bombay High Court held that the law declared is not only from the judgment of the judges forming the majority but can be ascertained from the law declared by a judge in the minority as well. Thus, the minority decision will also have precedential value on a particular point when the law has not been discussed by the majority. In this  case, on facts, it was found that the notice for reopening assessment was improper and was quashed. 

Another interesting decision on this point is that of the Allahabad High Court in Sudha Tiwari v Union of India 2011 (87) ALR 374: MANU/UP/0210/2011. 

The validity of the ninety-third amendment to the Constitution was considered by the Supreme Court in Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1.

Article 15(5), which was inserted by the ninety- third amendment, permitted reservation for socially and educationally backward classes of citizens even in private educational institutions, whether aided or unaided by the State. This would not apply to minority educational institutions referred to in Article 30(1). 

Four out of five judges did not express any opinion on whether the ninety-third amendment would be valid as regards private unaided educational institutions. 

However, Justice Dalveer Bhandari, in his dissenting judgment, declared the ninety-third amendment is constitutionally to be invalid in so far as the private unaided institutions were concerned. In para 668 of the reported decision, it was made clear that the majority did not consider this issue and left it to be decided in an appropriate case. The order pointed out that the minority view of Justice Bhandari had declared Article 15(5) to be unconstitutional to this limited extent.

When a law enacted by the UP Government which provided reservation even to private unaided colleges was challenged, the Allahabad High Court relied on the minority judgment of Justice Dalveer Bhandari and declared the UP enactment to be ultra vires. It was urged that the view of a dissenting judge on a point not dealt with by majority may not be binding on the Supreme Court but will be binding on the High Courts. 

The Allahabad High Court accepted this submission and held that when the minority view has rendered a judgment, a point on which there is no conflicting view by the majority, the High Courts would be bound by such a law as being declared by the Supreme Court under Article 141.   

Thus, on a consideration of  these decisions, the following principles emerge:

(i) The view of the dissenting judge of the Supreme Court relating to a particular point not considered by the majority will be treated as the law declared under Article 141 read with Article 145(5);

(ii) The minority view has to be followed as a binding precedent by the High Courts.

It is further submitted that if the minority view is to be taken as the law declared under Article 141, it will equally be binding on a coordinate bench of the Supreme Court.

Thus, if a minority view is taken by one judge in a five-judge-bench case, the view of the minority judge will be the law declared by the Supreme Court.  The question that arises is whether the subsequent five-judge-bench can ignore the view of the minority judge or must refer the issue to a bench of seven-judges.

In my submission, the view of the minority judge should also be the law declared under Article 141 read with Article 145(5) and this minority view can be reconsidered and overruled only by a bench of seven-judges.

Arvind P. Datar is a Senior Advocate of the Supreme Court and expresses thanks to Maninder Singh, Senior Advocate for the case laws.