Supreme Court Should Clarify Its Obiter Dictum In Kusum Ingots

Recently, the High Court of Kerala struck down Section 10A of Indian Divorce Act (applicable only to Christians) observing that the fixation of the minimum period of separation of one year as stipulated is violative of the fundamental right. This raises an interesting question of constitutional law : Does this judgment has effect in Kerala only or can it be applied by the concerned anywhere in India ?

This question is rooted in the following observation of the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India 2004 (6) SCC 254 : An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

Various High Courts have followed this observation and held that when a Central Act provision is struck down by a High Court, it applies to other states as well. For example, in Shiv Kumar v. Union of India ( ILR 2014 KAR 2474), the Karnataka High Court, relying on the above observation in Kusum Ingots, held that a judgment of the Kerala High Court which read down Section 10A(1) of the Indian Divorce Act will apply throughout India. Thus now if someone claims applicability of the present Kerala HC judgment in Karnataka, then the Karnataka HC has to consider its own precedent in Shiv Kumar. The Madras, Kerala and Orissa High Courts has also followed these observation in Textile Technical Tradesmen Association v. Union of India (2011) , Dr. T. Rajakumari v. Government of Tamil Nadu , Pradeep vs KSCEC 2016 (3) KLT 551 and Dinabandhu Sahoo vs. Union of India.

Now let us see what was the issue before the Supreme Court in Kusum Ingots. The judgment begins by stating the issue itself: Whether the seat of the Parliament or the Legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under of the Constitution of India ? While answering this issue, the Court made the above observations.

In Arun Kumar Aggarwal vs State Of M.P.,(2014) 13 SCC 707, the Supreme Court explained the concept of Obiter Dicta , after referring to various authorities, as follows: Obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.

If we read the above observations in Kusum Ingots, it can be seen that all the above mentioned ingredients of Obiter Dictum is satisfied.

The Madras High Court in one of the judgments (mentioned above) had noted that the question was not directly raised and argued before the Supreme Court and therefore it can be considered as an obiter dicta of the Hon’ble Supreme Court. But, according to the High Court, such obiter dicta is also expected to be followed by the High Courts. In this regard, the Court referred to another Supreme Court judgment in Sarwan Singh Lamba v. Union of India AIR 1995 SC 1729, which held that “normally even an “Obiter Dictum” is expected to be obeyed and followed”. 

In this context, it is important to notice two Articles of Constitution : (1) Article 141 which states that the law declared by the Supreme Court shall be binding on all courts within the territory of India and (2) Article 144 which provides that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Cout. There is no similar Constitutional provision which applies to a law declared by the High Court to apply it across the Country. This conspicuous absence must be relevant to answer the question posed in the beginning of this article.

The ambiguity that these observations create can be illustrated as follows: Suppose the High Court (of X State) declared that marital rape exception is unconstitutional. However, another High Court (of Y State) had already upheld the constitutional validity of the said exception. Now can a husband who is accused of raping his wife be charged under Section 376 in Y State by virtue of this judgment ? So if both the High Court judgments have effect on Y State, which one should prevail? Similarly can a husband of X State can rely on the judgment of Y state and claim the exception?

I wish and hope that some day this question would arise before the Supreme Court itself and that it would hold that the observations made in Kusum Ingots are obiter dictum.