When opposing counsel says "that passage is mere obiter and not binding," most advocates have no effective response. They either concede the point or weakly insist on the passage's importance without being able to explain why.
This post gives you seven responses to the "mere obiter" objection — and more importantly, teaches you how to use obiter strategically so the objection rarely lands.
What Obiter Dicta Is — and Why It Is Not Useless
Obiter dicta — literally "things said in passing" — are observations, opinions, and statements in a judgment that were not necessary for the court's decision on the specific facts before it. They are the judge's views on collateral questions, hypothetical situations, or broader principles that arose during reasoning but were not essential to the outcome.
The conventional position is that obiter is persuasive but not binding. In practice, in Indian law, this is only partially accurate — and the exceptions are where the real advocacy value lies.
The distinction that matters is not simply binding versus persuasive. It is: which category of obiter, from which court, in what context, with what subsequent judicial treatment? Answer these four questions correctly and you will find that a well-chosen passage of SC obiter carries more weight before a High Court than a ratio from a poorly-reasoned Division Bench of another High Court.
When Obiter Dicta Carries Real Weight in Indian Courts
When It Is From a Constitution Bench
The Supreme Court in Municipal Committee, Amritsar v. Hazara Singh, (1975) 1 SCC 794 held that judicial propriety, dignity, and decorum demand that even obiter dicta of the Supreme Court be accepted as binding by High Courts. This principle was applied in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428: SC obiter has "clear persuasive value" even before the Supreme Court itself.
More pointedly, Peerless General Finance v. CIT, (2019) SCC Online 851 held: "A pronouncement by this Court, even if it cannot be strictly called the ratio decidendi, would certainly be binding on the High Court."
When your obiter comes from a Constitution Bench — five or more judges — its persuasive weight is effectively equivalent to a binding precedent for High Court purposes, provided it is a considered opinion on a point that arose in the case rather than a passing remark.
When It Has Been Repeatedly Cited and Followed
Obiter that has been cited approvingly and applied in multiple subsequent decisions undergoes a transformation. The Supreme Court has stated this explicitly: repeated citation and application is evidence that a legal proposition, even if originally obiter, has achieved the status of an established legal principle.
When you use obiter that has been cited in five or eight subsequent Supreme Court decisions, frame it accordingly: "The observation in [Case] has been consistently endorsed and applied in [list of cases]. It has thereby crystallized into an established proposition of law, regardless of whether it constituted the formal ratio of [Case]."
When No Binding Ratio Exists on the Point
Courts frequently encounter questions that have been discussed but not formally decided. When there is no ratio on your exact point, SC obiter on that point is the best available authority in the Indian legal system. In this situation, the "not binding" character of the obiter is largely theoretical — there is nothing more authoritative to look to.
Frame this clearly: "There is no direct binding authority on this specific question. The Supreme Court addressed this question in [Case] and observed [passage]. This observation, while technically obiter, represents the considered view of the highest court in the country and is the best available guidance on the point."
When It Is From a Larger Bench Than the Binding Ratio
The hierarchy of bench strength creates a situation where a Constitution Bench's obiter may carry greater persuasive weight than a smaller bench's ratio. If opposing counsel cites a 2-judge bench ratio against you, and you have a 5-judge bench observation supporting you, the bench strength differential is a legitimate argument.
Submit: "My learned friend relies on the ratio of a 2-judge bench in [Case]. I respectfully submit that the considered observations of a Constitution Bench of five learned judges in [Case], even if technically obiter on that point, carry far greater weight and should be preferred."
The most consequential example of obiter becoming law in Indian constitutional history: Justice Mudholkar's observation in I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 about the Parliament not having power to amend fundamental rights was technically obiter on the question of basic features — the actual holding was about the retrospective nature of the amendment. That observation, cited approvingly in successive cases, became the foundation for the basic structure doctrine formally adopted in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. From a passing judicial observation in 1967 to the most important constitutional principle in Indian law by 1973.
How to Frame an Obiter Argument So It Cannot Be Easily Dismissed
The advocate who says "the Supreme Court has observed in [Case] that..." without any framing gives opposing counsel an easy target. The advocate who contextualizes the observation before citing it makes the "mere obiter" objection much harder to land.
The Framing Technique: Persuasive Authority, Not Binding Precedent
Before citing the obiter passage, establish its context. Say: "The point before this court was not directly in issue before the Supreme Court in [Case]. However, the Court expressly considered this question while examining [the related issue], and delivered a considered opinion on it. The observation is technically obiter, but it is judicial dicta of the highest court — a deliberate expression of the Court's view on a question that arose for its consideration, not a casual remark."
This framing does three things. It pre-empts the "mere obiter" objection by acknowledging it before opposing counsel can make it. It elevates the observation from "mere obiter" to "judicial dicta." And it demonstrates to the bench that you have engaged honestly with the nature of the authority, which builds credibility for the argument that follows.
Building the Argument From Principles Rather Than the Observation Alone
The most resilient obiter arguments are those where the obiter is corroborated by an independent principled argument. Do not rely solely on the passage — use it to reinforce a position you have already established through ratio, statute, or principle.
Structure: (1) Establish the principle from ratio or statute; (2) Show that the SC's observation in [Case] is consistent with and expresses the same principle; (3) Cite the observation as confirmation rather than foundation.
When the obiter confirms rather than constitutes the argument, opposing counsel's objection that it is "not binding" becomes irrelevant — the binding authority is already in place, and the obiter merely reinforces it.
Indian courts classify judicial observations into a hierarchy of persuasive weight. At the top: judicial dicta — deliberate expressions on a collateral point, briefed and argued by counsel. Below that: considered obiter — a definite reasoned opinion on a legal point that arose but was not necessary to decide. At the bottom: casual remarks — passing expressions unconnected with points in dispute. Only the last category is truly dismissible as "mere obiter." Per Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101: "Mere casual expressions carry no weight at all." The strength of your obiter argument depends on correctly classifying the passage you are relying on and demonstrating to the bench that it falls in the first or second category.
How to Counter When Opposing Counsel Relies on Obiter
When opposing counsel cites an observation that works against you and you know it is obiter, your response has three options — in order of strength:
Option 1 — The passage is a casual remark, not judicial dicta. Show that the observation was made in passing, without briefing or argument on the point, and without the court's conscious engagement with the question. Cite MCD v. Gurnam Kaur for the proposition that casual expressions carry no weight. This is the strongest counter and should be used when it is genuinely accurate.
Option 2 — The observation is inconsistent with a binding ratio. When the obiter passage conflicts with a ratio (yours or another court's), the ratio must prevail. Submit: "The observation my learned friend relies upon, even if accepted as judicial dicta, is inconsistent with the binding ratio in [Case] at paragraph [N]. Where there is a conflict between obiter and ratio, the ratio must govern."
Option 3 — The observation is distinguishable on facts. Treat the obiter as you would treat a ratio for the purpose of distinguishing it. Show that the factual context of the observation differs from your case in a way that makes the observation inapplicable.
Finding Obiter in Long Judgments
Obiter tends to cluster in two locations within a judgment. The first is the opening section where the court surveys the state of the law — here judges frequently make observations about allied principles that were not directly in issue. The second is toward the end, after the ratio has been stated and the holding announced, where judges sometimes add observations about the broader implications of the decision or about related questions they have deliberately left open.
In long Constitution Bench judgments, look for the phrase "we leave open the question of" or "we do not decide" — these signal areas where the court has been deliberate about not creating ratio, but may have made observations. Also look for passages that begin "We may observe" or "We think it appropriate to note" — these signal deliberate judicial dicta on points adjacent to the main issue.
On SCC Online, after reading the headnote, search within the judgment for these signal phrases. On IndianKanoon, use the search-within-document function with the same phrases.
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The High-Value Obiter Dicta Every Litigator Should Know
Certain passages of SC obiter have been so frequently cited and applied that they function as effective authority in Indian courts. These are worth knowing by heart.
"Bail is the rule, jail is the exception" — originating in State of Rajasthan v. Balchand, (1977) 4 SCC 308 (Krishna Iyer J.) and elaborated extensively as obiter in multiple subsequent bail matters before being treated as a guiding principle in Sanjay Chandra v. CBI, (2012) 1 SCC 40. This observation has been cited in thousands of bail applications and forms the philosophical foundation of India's contemporary bail jurisprudence.
The triple test for privacy infringement — formulated in detail in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 primarily by Chandrachud J. The three-pronged test of legality, legitimate state aim, and proportionality was the ratio on the privacy right question but has been applied as an administrative law principle — including to non-privacy state action — in subsequent decisions, making the proportionality limb function as effective authority well beyond the privacy context.
Natural justice as a component of Article 21 — the observation in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 that the procedure established by law must not be arbitrary or unreasonable has been applied as binding authority in thousands of service law matters and regulatory proceedings involving natural justice.
The basic structure elements — the specific elements of the basic structure doctrine (judicial review, fundamental rights, separation of powers, federalism, secular character) were elaborated by individual judges in Kesavananda Bharati with varying emphases. Many of these elaborations are technically obiter relative to the core holding, but subsequent courts have treated them as effectively authoritative because no bench of equivalent strength has qualified them.
Obiter dicta in Indian law occupies a spectrum from effectively binding (repeated SC Constitution Bench obiter) to weightless (casual judicial remarks). The advocate's skill is in correctly identifying where on this spectrum a passage sits, and framing it accordingly before citing it. Never cite obiter without classifying it first. Never allow opposing counsel to dismiss obiter as "mere passing remark" without putting the court to proof that the observation was not a deliberate judicial opinion on a question that arose for the court's consideration.
Frequently Asked Questions
Is obiter dicta binding in India?
Technically no — only ratio decidendi constitutes "law declared" under Article 141 and is formally binding. However, the practical position in India is more nuanced. The Supreme Court has held that judicial propriety requires High Courts to follow SC obiter as a matter of discipline and respect for the highest court. SC obiter that has been repeatedly cited and applied in subsequent decisions carries effective authority that is difficult to distinguish from binding in practical terms.
Can I rely on obiter dicta of the Supreme Court in a High Court?
Yes, and in many situations you should. Where there is no binding ratio on your specific point, SC obiter is the best available guidance. Frame it correctly — acknowledge its character as obiter, classify it as judicial dicta rather than a casual remark, show its subsequent endorsement if available, and present it as the considered view of the highest court on a question that arose before it.
What is the difference between obiter dicta and ratio decidendi?
Ratio decidendi is the legal rule without which the court's decision would have been different — it is binding under Article 141. Obiter dicta are observations that were not necessary for the court's decision — they are persuasive but formally not binding. The test is Wambaugh's Inversion Test: remove the statement and ask whether the decision would have been different. If yes — ratio. If no — obiter.
How do I know if a statement is obiter or ratio?
Apply the subtraction test. State the proposed ratio, reverse its meaning, and ask whether the decision would have changed. If the inverted statement would have changed the decision, the original proposition is ratio. If not, it is obiter. For complex multi-issue judgments, the subtraction test must be applied issue-by-issue — a statement may be ratio on one issue and obiter on another.
Can obiter dicta become ratio decidendi?
Yes, through two mechanisms. First, a subsequent court may adopt the obiter as the ratio of a later case when the same point directly arises for decision. Second, through the crystallization effect — repeated citation and application of an obiter observation by subsequent courts gradually elevates it to the status of an established legal proposition. The basic structure doctrine illustrates the first mechanism; the bail jurisprudence built on Krishna Iyer J.'s observations illustrates the second.