Recently, a bench of five-judges in Bajaj Allianz General Insurance Company Limited v. Rambha Devi summarised the law on the per incuriam principle. It is well known that a decision loses its binding force if it is per incuriam. The phrase actually means per ignoratium, as explained in State of UP v. Synthetics and Chemicals Ltd. A decision will also be per incuriam if its conclusion is inconsistent or contrary to a statutory provision, or to an earlier decision that is binding. 

After discussing all the important cases on per incuriam, the Supreme Court (in Bajaj Allianz) referred to its earlier decision in Shah Faesal v. Union of India, which in turn cited an earlier decision that had held:

“It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta."

The statement extracted is from a decision of a bench of two judges in Sundeep Kumar Bafna v. State of Maharashtra, where the issue concerned the relevant scope of the provisions relating to bail and anticipatory bail. A single judge of the Bombay High Court had held that a particular decision of the Supreme Court was per incuriam. Expressing its displeasure, the Supreme Court cautioned all High Courts to be extremely careful and circumspect in concluding that a judgment of the Supreme Court was per incuriam. It then pointed out how the single judge was wrong. In this background, the Supreme Court also emphasised the discipline of following earlier precedents and not casually applying the per incuriam rule. Unfortunately, it went on to make the above remarks, which ironically, is itself is an obiter dictum. The difference between ratio decidendi and obiter dictum never arose for consideration, nor did the question whether the rule of per incuriam would or would not apply to an obiter dictum.

It is submitted that there is no basis to hold that the per incuriam rule will not apply to obiter dicta. If the per incuriam rule is based on the principle that it is a decision given in ignorance of a statutory provision or a binding precedent, then there is no reason why it cannot apply to obiter dicta. There is no doubt that Article 141 is applicable only to the law laid down by the Supreme Court, which is the ratio decidendi in a particular case.

At the same time, it has been held that normally, even obiter dicta of the Supreme Court are expected to obeyed and followed (see Sarwan Singh Lamba v. Union of India – a bench of five judges); and that the obiter dicta of the Supreme Court are entitled to considerable weightage (CIT v. Vazir Sultan & Sons). In Amritsar Municipality v. Hazara Singh, the Supreme Court affirmed a decision of the Kerala High Court which had held that judicial propriety, decorum and dignity demanded that even obiter dictum of the Supreme Court should be accepted as binding declaration of law. It then went on to say that statements on all matters other than law have no binding force.

It is submitted that these observations are also incorrect. The obiter dicta of the Supreme Court are undoubtedly entitled to considerable weightage, but if they are not the ratio decidendi, there can be no expectation that they should be “obeyed and followed” or be treated as binding declaration of law. 

However, if this is the status accorded to obiter dicta, it is submitted that the principle of per incuriam should apply. If it is found that an observation is contrary to statutory provisions or binding precedents, the weightage given to that obiter dictum should be zero. Indeed, an obiter dictum which is in ignorance or contrary to statutory provision has to be discarded. The High Courts can ignore them.

Therefore, it is not correct to state that the per incuriam principle cannot apply to obiter dicta. As mentioned earlier, the observation in the Sundeep Kumar Bafna case is really obiter and was wholly unnecessary. There is no jurisprudential reasoning as to why the per incuriam rule should be confined only to the ratio decidendi and not to obiter dicta. Unfortunately, this statement, without any logical reasoning, was reiterated in Shah Faesal  and again in the recent Bajaj Allianz case. It is submitted that the observation in the Sundeep Kumar Bafna is erroneous and has been incorrectly followed. The per incuriam rule will equally apply to a dictum that is obiter.

Arvind P Datar is a Senior Advocate.