Doctrine of ‘Per Incuriam’: Critical Analysis based on Precedents*
Meaning: According to the Black’s Law Dictionary (Fourth Edition, 1891) per incuriam means through inadvertence. The word ‘incuria’ literally means ‘carelessness’.[1] The purport of the doctrine of per incuriam is that, a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute, or of a rule having the force of a statute.[2] ‘Per incuriam’ means ‘through want of care’; a decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam, that is, without the Court’s attention having been drawn to the relevant authorities or statutes.[3] The ‘per incuriam’ rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. An important caveat that is required to be borne in mind at all times is that, the non-reference of earlier decisions in the judgment does not indicate non-consideration of those cases in the judgment.[4]
When a decision/judgment can be stated to be ‘per incuriam’?
A decision/judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision/judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench; or if the decision of a High Court is not in consonance with the views of the Supreme Court.[5] It is a settled rule that if a decision has been give per incuriam the court can ignore it.[6] In the case of, Buta Singh v. Union of India[7], it was held that, when a two-judges bench without noticing or ignoring the binding decision of a three-judges bench renders a decision, then such a decision is per incuriam. Similarly, in the case of K.H. Siraj v. High Court of Kerala[8], it was held that, when a decision is rendered by the High Court without having regard to the relevant line of decisions rendered by the Supreme Court, then such a decision of the High Court is per incuriam.
In the case of, Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh)[9], it was held that, the problem of judgment per incuriam when it actually arises should present no difficulty as the Supreme Court of India can lay down the law afresh, if two or more of its earlier judgments cannot stand together. It is important to note that, the non-consideration of an irrelevant provision cannot make the ratio of the decision per incuriam.[10] Lastly, in the case of, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd[11], it was held that, unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment per incuriam; it has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.
Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam.[12]
Can a ‘per incuriam’ decision operate as ‘res judicata’?
Per incuriam decisions are those decisions which do not state the law correctly and hence are not to be followed.[13] In the case of, Union of India v. Indian Railway SAS Staff Association[14], it was held that, ‘per incuriam’ decision does not operate as res judicata.
Can a ‘per incuriam’ decision operate as a precedent?
In the case of, Hyder Consulting (U.K.) Ltd. v. State of Orissa[15], it was held that, a prior decision of the Supreme Court on identical facts and law binds the court on the same points of law in a later case. In exceptional circumstances, where owing to obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply.
In the case of, State of Assam v. Ripa Sarma[16], it was held that, a judgment rendered in ignorance of earlier judgments of benches of co-equal strength would render the same per incuriam, and thus, such a judgment will not be elevated to the status of precedent. Further, in the case of, State of M.P. v. Narmada Bachao Andolan[17], it was held that, the courts have developed the principle of per incuriam in relaxation of the rule of “stare decisis”; thus, the “quotable in law” is avoided and ignored if it is rendered in ignorance of a statute or other binding authority. Moreover, in the case of, Central Board of Dawoodi Bohra Community v. State of Maharashtra[18], it was held that, a ruling making a specific reference to an earlier binding precedent may or may not be correct but it cannot be said to be per incuriam.
Lastly, in the case of, Chauharya Tripathi & Ors v. L.I.C. of India & Ors[19], it was held that, there can be no cavil over the proposition that once a judgment has been declared per incuriam, it does not have the precedential value. However, it is worth noting that, in the case of, Mukesh K. Tripathi v. L.I.C.[20], it was held that, even though a case may not have been expressly over-ruled but once it has been held that it has been rendered per incuriam, it cannot be said that it lays down good law.
Doctrine of ‘per incuriam’ and Judicial Discipline:
In the case of, Jai Singh v. M.C.D.[21], it was held that, judicial discipline and propriety demands that, there should be consistency in the views as regards the decisions rendered by co-equal benches on the same issue; however, subsequent bench is to follow the decision rendered by the earlier co-ordinate bench, except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam. Further, in the case of, U.P. Power Corporation Ltd. v. Rajesh Kumar[22], it was held that, it is the duty of the court to acknowledge the fact that, a judgment which erroneously appreciates or construes a binding precedent is not per incuriam.
It is important to take note of the ratio laid down in the case of, K.G. Derasari v. Union of India[23], in this case the Supreme Court of India categorically observed that, if the tribunal has not looked into previous decision of the Supreme Court which is the law of the land and by which it was bound, the remedy available to the aggrieved person was to file an application for review.
In the case of Chandra Prakash v. State of U.P.[24], it was held that, in case a two-judge bench finds fault with the decision rendered by a three-judge bench, then, in that case, the two-judge bench must restrain itself from referring the matter to the Constitution Bench, as judicial discipline and propriety as also the doctrine of binding precedent demands that a two-judge bench must follow the decision given by a three-judge bench.[25]
Citing per incuriam decisions at Bar:
In the case of, State of Orissa v. Nalinikanta Muduli[26], the Supreme Court of India coming down heavily on the members of the bar, took occasion to state that, advocates are officers of the court and they have a bounden duty to assist the court and not to mislead it; citing an over-ruled decision before a court without disclosing the fact that it has been over-ruled is a matter of grave concern, and the falling standards of the advocates citing over-ruled decisions at bar has become a dreadful reality, which needs to be curbed as early as possible.
Conclusion:
From the above analysis we draw the following conclusion:
- Principle of res judicata does not apply to decisions given per incuriam;
- Decisions given per incuriam do not have any precedential value;
- If ‘Case X’ did not consider a binding decision i.e. ‘Case Y’, but did consider another case i.e. ‘Case Z’, which had considered the said binding precedent i.e. ‘Case Y’, then in such a case, the view taken in ‘Case X’ cannot be said to be per incuriam;
- When no relevant provision of the Constitution or any statute is left out for consideration as regards a judgment delivered, then, in such a case, the judgment delivered, cannot be termed as per incuriam.[27]
*Shivam Goel, B.Com (H), LL.B., LL.M. (WBNUJS); Author of: Corporate Manslaughter & Corporate Homicide: Scope for a New Legislation in India, Penguin-Partridge, Bloomington, 2015; and Concept of Rights in Islam, Lambert Publications, Germany, 2014.
[1] See: State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139
[2] See: Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Union of India v. Manik Lal Banerjee, (2006) 9 SCC 643
[3] P. Ramanatha Aiyar’s Concise Law Dictionary, Fifth Edition, Lexis Nexis Publication, p.937
[4] See: Gupta Sugar Works v. State of U.P., AIR 1987 SC 2351
[5] See: Sundeep Kumar Bafna v. State of Maharashtra, Criminal Appeal No. 689 of 2014, Supreme Court of India, Judgment delivered by: Vikramajit Sen, J.
[6] See: Rattiram & Ors. v. State of M.P. (Through Inspector of Police), Criminal Appeal No. 223 of 2008, Supreme Court of India
[7] (1995) 5 SCC 284
[8] (2006) 6 SCC 395
[9] (1990) 3 SCC 682
[10] (1999) 3 SCC 176
[11] (2001) 6 SCC 356
[12] See: M.C.D. v. Gurnam Kaur, (1989) 1 SCC 101
[13] See: A. Srimannarayana v. Dasari Santakumari, (2013) 9 SCC 496
[14] (1995) Supp (3) SCC 600
[15] (2015) 2 SCC 189
[16] (2013) 3 SCC 63
[17] (2011) 7 SCC 639
[18] (2005) 2 SCC 673
[19] Civil Appeal Nos. 5690-5691 of 2010, Supreme Court of India, Judgment dated: 11.03.2015
[20] (2004) 8 SCC 387
[21] (2010) 9 SCC 385
[22] (2012) 7 SCC 1
[23] (2001) 10 SCC 496
[24] AIR 2002 SC 1652
[25] See: Union of India v. Raghubir Singh, 1989 (2) SCC 754 (Para 27)
[26] (2004) 7 SCC 19
[27] See: Usha Bharti v. State of U.P., (2014) 7 SCC 663
