Stare decisis, amongst High Courts - The High Courts should consider to adopt the doctrine of stare decisis in the matters of the decisions of other High Courts in interpreting the same laws and the common laws applicable to the people in their states.

'Stare decisis', amongst High Courts

• It is difficult to believe that in the common constitutional culture the High Courts should have different opinions on the rights and liabilities of the citizens of the country interpreting the same laws. 

• The High Courts should consider to adopt the doctrine of stare decisis in the matters of the decisions of other High Courts in interpreting the same laws and the common laws applicable to the people in their states. 

• Article 261 of Constitution of India guides to such approach. It is difficult to believe that the High Courts in the country committed to the same constitutional goals and values may be allowed different and sometimes conflicting resolutions and interpretations on the same issues in law. 

• The unity and integrity of the nation, foreseen in the preamble of the Constitution of India can be achieved by uniting the institutions, working together towards the same constitutional goals.

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Sunil Ambwani

Judge

High Court Allahabad

Introduction

1. The principle of 'stare decisis' (to stand by decided cases) is as old as the establishment of the courts. It is derived from legal maxim 'stare decisis et non quieta movere':. It is best to

adhere to decisions and not to disturb questions, which have been put at rest. When a point of law has been settled, it forms a precedent which is not to be ordinarily departed afterwards. When the same point comes for consideration again in litigation, the scales of justice must be kept even and steady. A principle of law should not change from case to case. The judgments are not to be altered or changed in accordance with the individual opinions or private sentiments of the judges. The primary duty of the judiciary is to maintain rule of law. The law does not change with the opinion of the judges. In a given case the opinion of the judges may change, the principles of law however must remain on surer foundations until there is any change in legislation, or the society needs such change.

2. In the hierarchy of courts the opinion of judges on the questions of law decided by the superior courts are binding on the lower courts. The Constitution of India declares in Article 141 that the law declared by the Supreme Court shall be binding in all courts within the territory of India. The High Courts do not have liberty under this rule of discipline, to take a different view or to rely upon supposedly conflicting decisions, where the Supreme Court has laid down clear law on the subject. The High Courts are not to contradict the law declared by the Supreme Court.

3. A judgment of competent court is binding upon the parties and is subject to appeal, if there be any. The principle or the question of law decided in the case, however is binding on the subordinate courts and has great persuasive value on the courts of coordinate jurisdiction. This principle keeps the judiciary within the bounds of law. It is also a rule of discipline to avoid confusion, uncertainty and to subserve the ends of justice. The principle of stare decisis is however not applicable amongst High Courts. This article seeks to examine whether this practice has any legal basis. Ratio decidendi

4. A precedent to be binding must be express and founded on reasons. The 'ratio decidendi' and not 'obiter dicta' has the binding force. 'Ratio decidendi' means the reasons or the grounds of a decision. Reason is the soul of law. Ratio est radius divine luminous; reason is a ray of the divine light. Ratio injure aequitas integra; reason in law is total equity.

5. The 'obiter dicta' is the incidental question which may arise indirectly connected with the main questions for consideration. The observations on such questions are not binding as precedent. 

6. Only that much which has been decided, and is the ratio decidendi is binding1. The judgments are not to be read like statutes2. The courts relying upon a binding precedent should be careful to find out the ratio of the decisions. Such ratio must be on the matter in law and not the decisions on facts. The judgment must be read as a whole. The observations in the judgment must be considered in the light of the questions which were before the court. What is binding is the principle underlying a decision. A decision cannot be relied upon in support of a proposition that it did not decide3 .

7. In case of conflict between the decisions of the Supreme Court itself, it is the latest pronouncement, which is binding upon lower courts unless the earlier decision is of a larger bench4. The exceptions

8. The doctrines of 'per-incurium' and 'sub-silentio' are exceptions to the rule of stare decisis. If a decision has been given in ignorance of law or any statute or any binding authority, the doctrine of 'per-incurium' is attracted5. Rule of 'sub-silentio' is applicable where a particular point of law is not perceived by the court or was not present to its mind or is not consciously determined by the court6 .

9. Where no reasons are given in dismissing a petition the judgment is not binding on the subordinate courts7. The Supreme Court has ruled that it is not infallible. It may be the highest court but that there may be occasions when its judgment may be reconsidered. The Supreme Court has given unto itself the power to entertain curative petitions on the certificate given by a Senior Advocate8. In such cases the Supreme Court has reconsidered its decisions. This power however has not been conceded to the courts lower in hierarchy. The power to reconsider its decisions however has been very rarely exercised by the Supreme Court. In ITO Tutiqurin vs. T.S.D. Nadar in his dissenting judgment Justice Hedge observed that: “........the decisions of this court should not be overruled excepting under compelling circumstances. .......Every time this court overrules its previous decisions the confidence of public in the soundness of the decisions of this court is bound to be shaken....... decisions of this court should be confined to questions of great public importance in law. Finality is of utmost importance. Legal principles should not be treated as mere subjects of mental  exercise. This court must overrule its previous decisions only when it comes to the conclusion that it's manifestly wrong, not upon a mere suggestion that some or all the members of the later court might arrive at a different conclusion if the matter was res intigra.”

The persuasive value

10. The judgments of the High Courts have persuasive value to the other High Courts. The principle of stare decisis is not strictly applicable when the High Court is considering the judgment of another High Court, on same issue. These judgments are treated with respect. The High Courts however are not obliged in law to follow them or to refer it to larger bench if they take a different view.

11. The High Courts are constituted under Article 214 of the Constitution of India and are courts of record. The High Courts, under the Constitution of India, administer both central and state laws and very often decide common questions, on the matters of central laws and principles on issues involving state laws, municipal laws, personal laws, administrative laws and international laws coming before them. The new constitutional norms and values require a serious consideration to extend the doctrine of stare decisis to the judgments by the High Courts, on the other High Courts. The 'doctrine of amity or comity', in judiciary persuades us to consider whether the judgments of other High Court should be given more than just persuasive value. Persuasion in the matters of stare decisis means something more than a request. It means respect. If we respect the statutes then why not the judgments given by other High Courts? It is difficult to believe that in the common constitutional culture the High Courts should have different opinions on the rights and liabilities of the citizens of the country interpreting the same laws. Article 261 of Constitution of India provides:-

• “261 (1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.

• (2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.

• (3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.”

12. Fairness and non-arbitrariness are the essential requirements of every state action, more so in the acts of judges. The object of Article 261 is to respect the public acts, records and judicial proceedings by all the authorities in the country. The final judgments and orders passed by civil courts are capable of execution anywhere within the territory of India. A purposive and meaningful interpretation of Article 261 would suggest that the judgments of courts in any part of India should be given faith and credit by all authorities including the judges of the High Court. How then it is possible that the judgments on the same question of law interpreting same statutes may not have binding effect upon the other High Courts?

13. While reorganising the States parts of the State are declared as territory of the new state. Very often the laws applicable to these territories, when they were part of the erstwhile States, are adopted by the new states or the State to which the territories are given. In such cases High Courts ordinarily follow the judgments rendered by the parents States on the legal issues. In such cases the courts have given more than the persuasive value to these judgments. Similarly very often the local or the personal laws applicable to the citizens of the neighbouring states are common. In such cases the doctrine of stare decisis should be held applicable and the judgments of the High Court should be given more than persuasive value to the judgments where same laws or customs are the subject matter of decisions.

The administration of justice

14. The Gauhati High Court is administering justice to the seven states, namely Assam, Nagaland, Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh. The Punjab High

Court is administering justice in the union territory of Chandigarh. The Calcutta High Court is administering justice in Andman and Nicobar Island through a circuit bench at Portblair; Madras High Court in the union territory of the Pondichery; the Bombay High Court in the state of Goa, through a bench. The central laws relating to union territories and the local laws have provided mechanism of administering justice in these states. The High Courts have been effectively functioning and implementing the legislative will in these states according to constitutional values. The doctrine of stare decisis in these High Courts does not make any distinction applying principles of binding precedents when the judgment is rendered by the High Court in respect of issues arising in different states. Why then the High Courts should not respect the decisions of the other High Courts on the same laws?

15. In the matters of interpretation of local statutes the view taken by the High Court over a number of years has been respected by the Supreme Court. The manner in which the people of the State arrange their affairs on any interpretation of provisions of law is accepted as the correct view. The doctrine of stare decisis has been invoked in such decisions and the Supreme Court has not interfered in such matters9. These decisions on common issues should receive same respect from other High Courts as well.

Conclusion

16. The High Courts should consider to adopt the doctrine of stare decisis in the matters of the decisions of other High Courts in interpreting the same laws and the common laws applicable to the people in their states. Article 261 of Constitution of India guides to such approach. It is difficult to believe that the High Courts in the country committed to the same constitutional goals and values may be allowed different and sometimes conflicting resolutions and interpretations on the same issues in law. The unity and integrity of the nation, foreseen in the preamble of the Constitution of India can be achieved by uniting the institutions, working together towards the same constitutional goals.

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1. State of Orissa vs. Md. Illiyas AIR 2006 SC 258 para 13

2. Punjab National Bank vs. R.L. Vaid AIR 2004 SC 4269 para-5; Bharat Petroleum Corporation Ltd vs. N.R. Vairamani AIR 2004 SC 4778 para 9

3. Mittal Engineering Works Pvt. Ltd. vs. Collector of Central Excise, Meerut (1997) 1 SCC 203.

4. Mattu Lal vs. Radhay Lal AIR 1974 SC 1596 para11; State of UP vs. Ram Chandra Trivedi AIR 1976 SC 2547 para 22 and Commissioner of Income Tax Bihar vs. Trilok Chandra Mehrotra (1998) 2 SCC 289 para 4.

5. State of UP vs. Synthetics and Chemicals Ltd (1991) 4 SCC 139.

6. Arnit Das vs. State of Bihar AIR 2000 SC 2264 para 21

7. Rupa Ashok Hurra vs. Ashok Hurra AIR 2002 SC 1771

8. India Oil Corporation vs. State of Bihar AIR 1986 SC 1780; Supreme Court Employees Welfare Association vs. Union of India AIR 1990 SC 334 (para 22)

9. Raj Narain Pandey vs. Sant Prasad Tiwari AIR 1973 SC 291; Bishambhar Das Kohli vs. Satya Bhalla 1973 AIR SCW 643; Misrilal vs. Dhirendra Nath AIR 1999 SC 2286.

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Imp. Rulings - Doctrine of Per Incuriam

 Per incuriam, literally translated as "through lack of care", refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant.

Significance 

The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the rationes of a judgment must be followed thereafter by lower courts while hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam. Also the said doctrine is an exception to article 141 of Constitution of India which embodies the doctrine of precedents as a matter of law.

 

Sir John Salmond in his 'Treatise on jurisprudence' has aptly stated the circumstances under which a precedent can be treated as 'per incuriam'. It is stated that a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute or delegated legislation.

 

C.C.K. Alien in 'Law in the Making' (Page No. 246) analyzed the concept of 'per incuriam'. According to him, 'Incuria' means literally 'carelessness' which apparently is considered less uncomplimentary than ignorantia; but in practice 'per incuriam' applies to mean 'per ignorantiam'. It would almost seem that 'ignorantia juris neminem excusat' – except a Court of law, ignorance of what? Ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it.

 

The rule applies even though the earlier court knew of the statutes in question but it did not refer to and had not present to its mind, the precise terms of the statute. Similarly a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand, such a mistake is again such 'incuria' as to vitiate the decision. Even a lower court can impugn a precedent on such grounds.1

 

International View

The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

 

In Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 it was observed that: "Where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam."

 

Indian Perspective

Supreme Court (2010.12.02) in Siddharam Satlingappa Mhetre vs. State of Maharashtra [Criminal Appeal No. 2271 2010. - Arising out of SLP (Crl.) No.7615 of 2009) refused to follow the decision of co-ordinate benches, which was opposed to the decision of an earlier Constitutional Bench. The Hon'ble Supreme Court explained the concept of "per incuriam" as following:

" # 139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

……..In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.); or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."

 

# 140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

 

# 141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:

• "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."

 

# 142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:

• "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

 

# 143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:

• "...It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act."

 

# 144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9, two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:

• "With great respect, we must say that the above quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."

 

# 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.

 

# 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

 

# 147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi and Others (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:-

• "We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."

 

# 148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-

• "Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio." 

# 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam."

Therefore, it can be concluded that when a lower court ignores the decision of a higher court, the decision passed by such court can be discarded as being per incurium of the decision of the higher court.

Footnotes

1 INVOKING THE DOCTRINE OF 'per incuriam' by Mr. M. GOVINDARAJAN

2 Criminal Appeal No. 2271 of 2010 (Arising out of SLP (Crl.) No. 7615 of 2009)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

SC: Rule of per incuriam applies only to the ratio of the judgement

 A Constitution Bench of the Hon’ble Supreme Court (2020.03.02)  in the matter of Dr. Shah Faesal and Ors. vs Union of India and Anr. pronounced that the rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment. The same having an impact on the stability of the legal precedents must be applied sparingly, when there is an irreconcilable conflict between the opinions of two co­ordinate Benches.

The Hon’ble Supreme Court observed that:
Supreme Court’s jurisprudence has shown that usually the Courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. The Supreme Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. (Para 17) 

Doctrine of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, judges owe a duty to the concept of certainty of law, therefore they often justify their holdings by relying upon the established tenets of law. (Para 18)  

When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well­ established principle, that a reference will be made to a larger Bench. (Para 19)

The decisions rendered by a coordinate Bench is binding on the subsequent Benches of equal or lesser strength. (Para 23)

A judgment of the Supreme Court can be distinguished into two parts: ratio decidendi and the obiter dictum. The ratio is the basic essence of the judgment, and the same must be understood in the context of the relevant facts of the case. (Para 25)

The rule of per incuriam has been developed as an exception to the doctrine of judicial precedent. Literally, it means a judgment passed in ignorance of a relevant statute or any other binding authority. (Para 28)

Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. (Para 42)

The framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in office by virtue of the Maharaja’s proclamation dated March 5, 1948, prior to the sitting of the Constituent Assembly of the State, would have to be placed before the Constituent Assembly, for its decision as provided under Article 370(2) of the Constitution. The rationale for the same is clear, as the task of the Constituent Assembly was to further clarify the scope and ambit of the constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as defined under Article 370 might have already taken some decisions, before the convening of the Constituent Assembly, which the Constituent Assembly in its wisdom, might ultimately not agree with. Constituent Assembly’s decision under Article 370(2) was final. This finality has to be read as being limited to those decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly of the State, in line with the language of Article 370(2). (Para 43)

Rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment. The same having an impact on the stability of the legal precedents must be applied sparingly, when there is an irreconcilable conflict between the opinions of two co­ordinate Benches. (Para 46)

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Article - Per Incuriam - An Analysis

In the normal course all decisions of a High Court would be binding on a District Court or a Tribunal which is subject to supervisory jurisdiction of a particular High Court [1] and the decisions of the Supreme Court are considered the law of the land [2]. When a High Court or Supreme Court is faced with a judgement cited before it there are certain rules for maintaining uniformity in law and of precedents commonly known as the principle of stare decisis. The following is the practice usually adopted:

1. The law laid down by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

2. A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. The principle of stare decisis is stated thus in Waman Rao v. Union of India [3]:

“42… In fact, the full form of the principle, stare decisis et non quieta movere which means “to stand by decisions and not to disturb what is settled”, was put by Coke in its classic English version as: Those things which have been so often adjudged ought to rest in peace.” 

 

Even when a Court is faced with two conflicting judgements of a superior court of equal strength the Court may follow a decision which it considers to be correctly decided. This was stated in Jaydeo v. State of Maharashtra [4].

• “24. The Full Bench of this Court in Kamleshwar Ishwardas Patel v. Union of India [5] reported in 1994 Mh LJ 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co-equal strength, has held that the High Court is not necessarily bound to follow the decision later in point of time, but must follow the one which in its view is better in point of law. For coming at such a conclusion, the Full Bench of this Court has relied on the judgment of the Constitution Bench of the Supreme Court in  Atma Ram v. State of Punjab [6].”

 

The question posed in this article relates to the question we are often faced with at one time or another. What is the correct course to follow when we are faced with a decision which decides in a particular way but does not refer to any statutory provision, decides contrary to statute or ignores relevant provisions or does not give any reasons etc for its decision. What is the value of such a decision, does it amount to a precedent or can it be ignored even though it may be a decision of a superior Court. In such a case it is open to invoke the principle of “per-incuriam” and contend that the judgement be ignored as it does not lay down the correct position in law.

 

The concept of “per-incuriam” was examined in Hyder Consulting (UK) Ltd. v. State of Orissa [7] where it was held:

• “46. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of “per incuriam”. The Latin expression “per incuriam” literally means “through inadvertence”.A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has “declared the law”on a given subject-matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd.[8], wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC p. 162, para 40)

- “40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’.

 

Some of the factors to consider while contending that a decision is not a binding precedent and should not be followed or be ignored on the above principle are now considered set out hereafter: A decision where the point in issue is not argued or considered by the Court or decision rendered without argument, without reference to the crucial words of the rule, and without any citation of authority. A decision where a mere direction is issued without laying down any principle of law. State of UP v. Jeet S. Bisht [9]

• “18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio. The meaning of a judgment sub silentio has been explained by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur [10] (vide paras 11 and 12) as follows: (SCC pp. 110-11)

- “… ‘A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present its mind. The court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.’

 

In Gerard v. Worth of Paris Ltd. [11] the only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. [12] the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided ‘without argument, without reference to the crucial words of the rule, and without any citation of authority’, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

 

* * *

21. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.

 

22. In Municipal Committee, Amritsar v.Hazara Singh [13] the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh[ 14] this Court observed that everything in a decision is not a precedent. In Delhi Admn. v. Manohar Lal [15] the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.”(emphasis supplied) 

 

A decision decided without a discussion on facts and law D.J. Malpani v. Commissioner of Central Excise [16]

• “27. In this case, CESTAT decided against the assessee relying on Panchmukhi [17] (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in TISCO Ltd.[18] (supra) and the counsel for the assessee “was not in a position to dispute this legal position”. The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in Tata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence, Twelfth Edition p.15 states that a decision held is not binding since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, therefore, would not be followed. The author also states that precedents sub silentio and without arguments are of no moment. This is enough reason for not treating the decisionin Panchmukhi (supra) as a binding precedent.” (emphasis supplied)

 

A decision which is not express and is not founded on reasons nor proceeds on consideration of issue 

(i) State of U.P.v. Synthetics and Chemicals Ltd.[19]

• “40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it isN AreVnIGdAeTreIOdN, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.[20] ) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey[21] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.

• 41. Does this principle extend and apply to a conclusion of law, which was neither raisednor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence, 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd.[22] the Court did not feel bound by earlier decision as it was rendered  ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur[23].The Bench held that, ‘precedents sub-silentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry[24] it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” (emphasis supplied)

 

(ii) Arnit Das v.State of Bihar[25]

• “20. A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. v. Synthetics & Chemicals Ltd.[26] ).” (emphasis supplied)

 

(iii) Divisional Controller, KSRTC v. Mahadeva Shetty[27]

• “23. So far as Nagesha case relied upon by the claimant… precedent sub silentio and without argument are of no moment. Mere casual expression carry no weight at all, nor every passing expression of a judge, however eminent, can be treated as an ex cathedra statement having the weight of authority.”

 

Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent Ram Pravesh Singh v. State of Bihar [28]- 

• “23. The appellant next submitted that thisCourt, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd.[29] We extract below the entire judgment: (SCC p. 651, paras 1-2)

“1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Ltd. whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations.

2. The writ petition is disposed of accordingly. There is no order as to costs.” The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu[30] cannot be the basis for claiming relief similar to what was granted in that case. A similar contention was negatived by the Constitution Bench in Umadevi (3)[31] : (SCC p. 39, para 46)

“The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation.”

 

To conclude one has to be mindful of the above when decisions are cited both when you are yourself citing it and when it is used against you and every attempt must be to cite decisions with caution and responsibility so that the correct principle of law is laid down.

 

[1] Article 227. Power of superintendence over all courts by the High Court. - Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 

[2] Article 141. Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India.

[3] (1981) 2 SCC 362

[4] 2005 SCC OnLine Bom 1283

[5] 1995 Supp (3) SCC 732

[6] 1959 Supp (1) SCR 748

[7] (2015) 2 SCC 189

[8] (1991) 4 SCC 139

[9] (2007) 6 SCC 586

[10] (1989) 1 SCC 101

[11] (1936) 2 All ER 905 (CA)

[12] (1941) 1 KB 675 : (1941) 2 All ER 11 (CA)

[13] (1975) 1 SCC 794

[14] (1999) 6 SCC 172

[15] (2002) 7 SCC 222

[16] (2019) 9 SCC 120

[17] CCE v. Panchmukhi Engg. Works, (2018) 11 SCCC 791

[18] TISCO Ltd. v. CCE, (2002) 8 SCC 338

[19] (1991) 4 SCC 139

[20] (1944) 1 KB 718 : (1944) 2 All ER 293

[21] (1962) 2 SCR 558

[22] (1941) 1 KB 675, 677 : (1941) 2 All ER 11

[23] (1989) 1 SCC 101

[24] (1967) 2 SCR 650

[25] (2000) 5 SCC 488

[26] (1991) 4 SCC 139, para 41

[27]. (2003) 7 SCC 197

[28] (2006) 8 SCC 381 : 2006 SCC (L&S) 1986 at page 395

[29] 1986 Supp SCC 651

[30] 1986 Supp SCC 651

[31] (2006) 4 SCC 1

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