En passant is a move in chess. It refers to a pawn capture. The capture is so effortless – that it is imagined to be “in passing”. There is a pawn that is “passing” too, literally, when it is won.
Hon’ble Judges of the Supreme Court of India are not averse to “in passing” orations. In Richpal Singh v. Ghasi, (2014) 8 SCC 918 it was “mentioned en passant that excessive reporting of judgments…is ‘case law diarrhoea’.”
It is not always the case though that the Judge itself recognizes its oration to be en passant. I say “it” for a Judge is a hard pressed animal. In State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 (“Murad”) the Division Bench of Hon’ble Justice Venkatachalliah and Hon’ble Justice R. Misra had held that, “protection against re-prosecution after acquittal….has received constitutional guarantee under Article 20(2)”. Recently, in Union of India v. Purushottam, [Civil Appeal No. 7133 of 2008] (“Purushottam“) the SC has clarified however that the obiter in Murad was “expressed en passant” and does not correctly state the law. Article 20(2) only imbibes within it the principle of autrefois convict and not autrefois acquit. In broad terms, there should not only be a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
Hon’ble Justice Vikramjit Sen’s principled issue against obiter dicta is now well known. I have already written on the same in the post entitled “Proverbial Chickens of Destiny“. In Purushottam, Justice Sen labelled 27 year old observations as “in passing“. And even more recently in Sher Singh v. State of Haryana [Criminal Appeal No. 1592 of 2011], he wrote, “the bludgeoning burden of obiter dicta….invariably causes confusion.”
Trivia: “En passant” is also the name of the contemptuous article called in question before the High Court at Bombay in 1922 (See, 72 Ind. Cas. 73). The object of the writer was to convey to his readers that Judges are the creatures of the Executive. The relevant paragraph had the title, “Long Live our Judges”.