Obiter dictum (Latin: "said in passing"; plural: obiter dicta) is a judicial observation or remark made by a court during the course of a judgment that is not essential to the decision and does not form a binding precedent for future cases. Under Indian law, only the ratio decidendi of a Supreme Court judgment is binding under Article 141 of the Constitution; obiter dicta carry persuasive value but are not obligatory for subordinate courts to follow.
Legal definition
Indian statute law does not define "obiter dictum." The concept is a judicial construct, developed through the common law tradition and adopted in Indian jurisprudence as the counterpart to ratio decidendi.
The constitutional context is provided by Article 141:
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
The Supreme Court has consistently held that "the law declared" refers exclusively to the ratio decidendi — the legal principle that is necessary and sufficient to decide the case. Observations, comments, hypothetical discussions, and remarks on questions not directly arising in the case, however erudite, are obiter dicta and do not constitute "law declared" within the meaning of Article 141.
An obiter dictum has been judicially defined as "an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision." In other words, if the court could have reached the same decision without making the observation, the observation is obiter.
How courts have interpreted this term
Career Institute Educational Society v. Om Shree Thakurji Educational Society (2023)
The Supreme Court, through Justices Sanjiv Khanna and M.M. Sundresh, directly addressed the distinction between obiter dicta and ratio decidendi. The Court held: "It is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding as a legal precedent is the principle upon which the case is decided." The Court applied the "inversion test" from State of Gujarat v. Utility Users' Welfare Association (2018): if a legal proposition can be removed from the judgment without changing the conclusion, it is obiter dictum and not binding precedent.
State of Gujarat v. Utility Users' Welfare Association (2018) 6 SCC 21
This case introduced the inversion test into Indian jurisprudence as the standard method for distinguishing obiter from ratio. The Supreme Court drew on Professor Eugene Wambaugh's 1892 formulation: invert the proposition — if the decision stands without it, the proposition is obiter. The Court observed that one of the persistent difficulties faced by subordinate courts is determining which portions of a superior court's judgment constitute binding "law declared" and which are merely persuasive observations. The inversion test was offered as a practical solution to this difficulty.
ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
In the infamous habeas corpus case during the Emergency, Justice H.R. Khanna's solitary dissent — holding that the right to life under Article 21 could not be suspended even during a proclaimed Emergency — is often cited as the most consequential obiter in Indian constitutional history. Although his view was technically a dissent (and thus not even part of the majority's ratio or obiter), his reasoning was subsequently vindicated when the 44th Constitutional Amendment, 1978 ensured that Articles 20 and 21 could not be suspended during an Emergency. The Supreme Court itself, in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, expressly approved Justice Khanna's reasoning and overruled the majority in ADM Jabalpur.
Types of obiter dicta
- Considered obiter: Observations made by the court after full argument and deliberation on a point of law that was not strictly necessary for the decision. Such obiter carries strong persuasive weight and is often treated as near-binding by lower courts, particularly when it comes from a larger bench of the Supreme Court.
- Passing obiter: Casual remarks, hypothetical illustrations, or observations made without detailed argument or analysis. This type of obiter carries minimal persuasive value.
- Dissenting observations: Statements made in a dissenting opinion. These are not binding in any circumstance, as they do not form part of the majority's decision. However, dissents can be profoundly influential, as the ADM Jabalpur example demonstrates.
Why this matters
Understanding what constitutes obiter dictum is essential for accurate legal reasoning. Indian Supreme Court judgments frequently contain extensive discussions that go well beyond the narrow legal question before the court. Judges may comment on comparative law, social policy, legislative intent, or hypothetical scenarios. While such discussions enrich the jurisprudence, they do not bind subordinate courts and cannot be cited as settled law.
For legal practitioners, the practical consequence is significant. An advocate who cites an obiter dictum as though it were a binding precedent weakens their argument and risks misleading the court. Conversely, an advocate who correctly identifies that an apparently adverse judgment is distinguishable — because the unfavourable observation was obiter rather than ratio — may successfully argue that the precedent does not apply. This analytical skill is central to effective advocacy in the Indian court system.
A common misconception is that obiter dicta are worthless. They are not. Considered obiter from the Supreme Court, particularly from Constitution Benches, carries substantial persuasive authority. Lower courts frequently rely on such obiter, and it may guide the development of the law even though it does not technically bind. The difference is that a subordinate court may decline to follow obiter if it finds the reasoning unpersuasive, whereas it must follow the ratio regardless of its own view.
Related terms
Opposite concept:
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Frequently asked questions
Is obiter dictum binding on lower courts in India?
No. Under Article 141 of the Constitution, only the ratio decidendi (the essential legal principle) of Supreme Court judgments is binding. Obiter dicta — observations that are not necessary to the decision — carry persuasive value but are not binding. However, considered obiter from larger benches of the Supreme Court often carries strong persuasive weight and is routinely followed by subordinate courts.
How do you distinguish obiter dictum from ratio decidendi?
Apply the inversion test established in State of Gujarat v. Utility Users' Welfare Association (2018). Take the legal proposition in the judgment and hypothetically remove it. If the decision would still have been the same, the proposition is obiter dictum. If the decision depends on the proposition, it is ratio decidendi. The test requires careful analysis of the material facts, the legal question, and the court's reasoning.
Can obiter dictum become binding law in the future?
An obiter observation does not become binding merely because it is frequently cited. However, if a subsequent case squarely raises the legal issue that was the subject of the obiter, and the court adopts the same reasoning as its ratio decidendi, then the principle becomes binding from that subsequent decision. The obiter itself remains non-binding in its original context.
What is the difference between obiter dictum and a dissenting opinion?
An obiter dictum is a non-essential observation in the majority judgment — it is part of the judgment that wins the case but is not necessary to the decision. A dissenting opinion is the view of a judge who disagrees with the majority's conclusion entirely. Neither is binding, but obiter comes from the winning side and may carry persuasive weight, while a dissent, though it may be intellectually powerful, has no formal legal effect until vindicated by a later decision.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.