Article 141 makes the law declared by the Supreme Court binding on all courts within the territory of India. The “law declared” is the ratio decidendi of the judgment. However, the binding nature of a decision is lost if it is per incuriam. This Latin phrase has two components: a decision will be per incuriam if
(i) it is given in ignorance of a binding judgment of a higher court or of a court of coordinate jurisdiction; or
(ii) if the decision is given in ignorance of the terms of a statute or a rule.
This meaning was given by the Court of Appeals in Young v. Bristol, (1944) KB 718 and Halsbury’s Laws of England, 4th Edition, Volume 26, page 297 at para 578 and page 300. The view has been followed in several English decisions and in early decisions of our Supreme Court. These judgments were summarised and the principles clearly laid down in the minority judgment of Justice Venkatachaliah in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.
“183. But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen — nor has the overruling Bench any jurisdiction so to do — that the finality of the operative order, inter partes, in the previous decision is overturned. In this context the word “decision” means only the reason for the previous order and not the operative order in the previous decision,(is) binding inter partes. … Can such a decision be characterised as one reached per incuriam? Indeed, Ranganath Misra, J. says this on the point : (para 105)
‘Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench.” ( Misra J. was part of the majority )
This minority view was later affirmed by the Constitution Bench in the case of Shah Faesal v. Union of India, (2020) 4 SCC 1, 13 at para 28.
The principle of per incuriam has been considered for discussion in several later decisions, and, unfortunately, the two clear principles now stand diluted in the light of certain incorrect comments made in subsequent judgments. In Fuerst Day Lawson v. Jindal Exports, (2001) 6 SCC 356, 368 at para 23, the Supreme Court observed that it was not desirable to depend on the principle of per incuriam unless it was a “glaring case of obtrusive omission”. It must be shown that some part of the decision was based on reasoning that was demonstrably wrong.
In State of Bihar v. Kalika Keur, (2003) 5 SCC 448, 454 at para 10, the court held that the “easy course” of terming an earlier decision per incuriam was not proper; the court must either refer the matter to a larger bench if it was felt that the earlier decision was not correct “on merits”, or the earlier decision must be followed.
In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, 642 at para 19, it was held that a decision would be per incuriam, if you could not reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench.
Recently, a five-judge Bench had occasion to reconsider several earlier decisions. In Bajaj Alliance General Insurance Company v. Rambha Devi, 2024 SCC Online SC 3183, this Bench decision summarised the principles and once again used the need of a “glaring case of obtrusive omission”. It reiterated the point that the principle of per incuriam would apply only if the earlier decision was demonstrably wrong and only in exceptional instances where, by obvious inadvertence or oversight, a statutory provision or a binding ruling which was counter to the reasoning had not been noticed.
It is submitted that the test of “obtrusive omission” or the need to apply it only in exceptional circumstances is incorrect. One has to merely apply two simple tests:
(i) Whether a binding ruling was not noticed or ignored?; or
(ii) Whether a statutory provision that clearly applied, was overlooked?
Thus, if what was overlooked or ignored completely alters the conclusion, the judgment is per incuriam. To put it differently, if the conclusion or the ratio decidendi cannot be sustained by either of the tests, the judgment is per incuriam and ceases to be binding even on co-ordinate benches.
Thus, in Bilkis Yakub Rasool v Union of India (2024) 5 SCC 481, it was held that the decision of another co-ordinate bench in Radheshyam Bhagwandas Shah v. State of Gujarat (2022) 8 SCC 552 was per incuriam because it was contrary to larger bench decisions of the Supreme Court.
Similarly, smaller benches of the Supreme Court have also declined to follow decisions of larger benches on the ground that they were per incuriam. See Islam v Gopal Dubey (1994) 4 SCC 459 and State of U.P. v Synthetics and Chemicals (1991) 4 SCC 139. In the latter decision , a two-judge bench decision held that a seven-judge bench decision was partly per incuriam.
It must also be made clear that a decision cannot be treated as per incuriam because certain arguments, which may have led to a different conclusion, had not been raised. In such a case, if a later bench is of the view that the earlier decision requires reconsideration, then the prescribed procedure of referring it to a larger bench must be followed, but the earlier decision cannot be ignored.
The other controversy is whether a decision of the Supreme Court, even if it is per incuriam, must be followed by the High Courts. It is submitted that, by definition, a decision which is per incuriam does not lay down the correct law. If the High Court can clearly discern that a Supreme Court decision is per incuriam, because of either of the two tests cited above, it is entitled to not follow the decision by giving reasons for doing so.
In Haris v Jahfar 2020 SCC OnLine Ker 4009 (FB), a decision of the Supreme Court in Union of India v. Chitra Lekha Chakroborthy (C.A. No.6213 of 2008) was held to be per incuriam, and also sub silentio, because section 22 of the Administrative Tribunals Act, 1985, which conferred the power of review on the Tribunal, was not considered. The Full Bench of the Kerala High Court further held that the provisions of the Civil Procedure Code, 1908 and the Limitation Act, 1963 had also not been considered.
At the same time, the High Courts cannot treat a Supreme Court decision as per incuriam merely on the ground that certain points were not argued. In South Central Railway Employees Cooperative Credit Society Employees’ Union v B. Yashoda Bai (2015) 2 SCC 727, the Supreme Court set aside a decision of the Andhra Pradesh High Court which declined to follow a Supreme Court decision that was not per incuriam. The High Court cannot rely upon additional grounds to come to a different conclusion from that of the Supreme Court.
Thus, the principle of per incuriam is an exception to the rule under Article 141 that the law declared by the Supreme Court is binding on all courts in India. Not only coordinate benches of the Supreme Court but even High Courts are entitled not to follow a Supreme Court, decision on grounds of per incuriam.
Arvind P. Datar is a Senior Advocate.