“In 1923, Scrutton L.J. expressed his regret that the “Counsels who argued this case would probably not recognize any of the Judgments as having any relation to the arguments they addressed to us” [Smith v. Smith, (1923) P. 191, 202]. Lord Maugham too lamented once that it was hard for him to realize “how some days were spent in arguments”, in which “no less than 60 authorities were cited” [Noble v. Southern Railway Company, (1940) UKHL 1]. Hon’ble Justice Vikramajit Sen has taken after the tradition of discouraging prolix submissions. In the recent Judgment of Sundeep Kumar Bafna v. State of Maharashtra [2014 (4) SCALE 215] he has advised that, “Members of the Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedents that holds the field”. The otherwise innocuous observation would have escaped my due attention unless I had realized, with statistical proof, how crucial is the phrase “holds the field” to Hon’ble Justice Sen. It is a phrase that he has used throughout his stints at the Delhi High Court and the Karnataka High Court. On being elevated to the Hon’ble Supreme Court of India too, Hon’ble Justice Sen, has noted previously in Rashmi Metaliks Ltd. v. KMDA, (2013) 10 SCC 95 that the SC often has to “face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law” and that the “correct approach is to predicate arguments on the decision which holds the field”. Years of emphasizing of the ‘correct approach’ have finally crystallized into the advisory words of Hon’ble Justice Sen in Sundeep Kumar.”
“En passant is a move in chess. It refers to a pawn capture. The capture is so effortless, it is imagined to be ‘in passing’. There is a pawn that is ‘passing’ too, literally, when it is won. Recently, in Union of India v. Purushottam, (2015) 3 SCC 779 the SC has clarified that the obiter in Murad, (1988) 4 SCC 655 was ‘expressed en passant’ and does not correctly state the law. In Purushottam, Hon’ble Justice Sen labelled 27 year old observations as ‘in passing’. And even more recently in Sher Singh v. State of Haryana, (2015) 3 SCC 724 he wrote, “the bludgeoning burden of obiter dict .invariably causes confusion”.”
“Hon’ble Justice Vikramajit Sen turns 65 on the last day of this year and retires duly. I shall forever associate him with ‘precedents’. What binds and what holds is a recurrent theme in several of his Judgments. It is not surprising, that with 5 months to go, Hon’ble Justice Vikramajit Sen felt that this would be the apposite time and place for a brief discussion on the contours and connotations of the term ratio decidendi [See, Laxmi Devi v. State of Bihar, (2015) 7 SCALE 555].”
“Hon’ble Justice Vikramajit Sen has yet again described what “holds the field”. The phrase “holds the field” is to Sen J what a “means and includes” definition is to Nariman J. A Smaller and a Later Bench has no freedom other than to apply the law laid down by the Earlier and Larger Bench; that is the law which is said to hold the field [See, State of U.P. v. Ajay Kumar Sharma, 2015 (12) SCALE 658].”
“A plethora of precedents on the subject in which we are presently concerned compels us, in order to avoid prolixity, to refer to only a few decisions of this Court.”
“In the interest of avoiding prolixity, we shall refrain from recording the arguments before us in unnecessary detail.”
“So far as the essential concomitants of Article 14 are concerned, we need not, nay, cannot travel beyond the decision of the Seven-Judge Bench of this Court in In Re: The Special Courts Bill, 1978, 1979 (1) SCC 380.”
“This finding was clearly obiter and must be treated as such.”
“An observation made in passing or obiter has persuasive value but is not binding on us.”
– Hon’ble Justice Vikramajit Sen, The Kerala Bar Hotel Association v. State of Kerala, [Civil Appeal No. 4157 of 2015].
Happy Birthday! Happy Retirement, My Lord! Faster Higher Stronger.