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 f 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 to 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. ManoharLal[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 decision in 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 is rendered, ‘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 raised nor 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 this Court, 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.


* Advocate, High Court, Bombay. Assisted by Arjun Prabhu, Sheetal Parkash and Mayur Agarwal. Author can be reached at karlshroff@gmail.com

[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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