In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria’ literally means `carelessness’[1]. 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 the Supreme court of India while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
“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[2]. In 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.[3]
Lord Godard, C.J. in Huddersfield Police Authority v. Watson[4]– “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.”
Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others[5] 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.”
Union of India v. Raghubir Singh[6], Chief Justice Pathak observed:
“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.”
Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others[7] a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru[8] 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.”
In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others[9] Constitution Bench of the Supreme Court ruled that a decision of a Constitution Bench of the Apex Court binds a Bench of two learned Judges of the (Supreme) Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
Central Board of Dawoodi Bohra Community v. State of Maharashtra[10]– It was 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.
Official Liquidator v. Dayanand and Others[11] 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[12] 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. The court observed that:
“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.”
Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others[13], the Supreme 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 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 case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.[14]
[1] Young v. Bristol Aeroplane Company Limited (1994) All ER 293.
[2] Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
[3] Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER.
[4] (1947) 2 All ER 193.
[5] (2000) 4 SCC 262.
[6] (1989) 2 SCC 754.
[7] (1991) 4 SCC 312.
[8] (1972) 4 SCC 86.
[9] (2001) 4 SCC 448.
[10] (2005) 2 SCC 673
[11] (2008) 10 SCC 1.
[12] (2006) 4 SCC 1.
[13] (2009) 15 SCC 458
[14] Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors.
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