Author: Nathan Gomes Student, Gujarat Law Society, Ahmedabad
Maintaining the Uniformity of Law and that of Precedents has always been a huge task for the Courts from its inception till today.
A practice which has been followed over the period of time is that, all the decisions given by the Constitutional Courts are considered to be binding i.e., the decision of the High courts are binding on all the subordinate courts within its supervisory jurisdiction, while the decision of the Supreme Court is considered to be binding on all the courts subordinate to it and also considered as the law of the land. Now when we come across the term binding, there is always a thought which comes to our mind as to what is meant by the term binding? How do you conclude that a particular decision is binding? What came to the minds of the then English Courts that inclined them to evolve this principle of Per Incuriam as relaxation to the rule of Stare Decisis[1]? These questions shall be answered as we advance through this article.
Introduction:
Through this article, what we shall try to focus on are the questions that are often faced by us time and again as to when can a decision be considered as a binding precedent? What actually does this Latin term Per Incuriam mean? Is there a straight jacketed formula that showcases what is binding? Is everything said by the constitutional courts binding over its subordinate court? There have been settled rules which have to be followed in order to maintain the uniformity of law: (a) That the law laid down by the larger bench is said to be binding over the bench of coequal and lesser strength (b) There can never be a disagreement by the lower court with the view of the higher court. (c) In case of such discrepancies, all that the lower court can do is refer the matter to the larger bench. So, when we read this, another question that may crop up is what if a particular court is faced with two different decisions over the same subject matter and that too from a bench of coequal strength? A general answer to it by most of us would be that the later decision should be followed but the full bench in the case of Kamleshwar Ishwardas Patel v. Union of India[2], opined that the high courts are not bound to follow the later decision, but must follow the one which upholds the point of law.
Operative Portion:
The doctrine of Per Incuriam in its literal sense would mean “Through Inadvertence”, which is often invoked when the courts are not inclined to follow a particular decision. But why and in which circumstances would the courts decline in following a particular decision? It is a settled proposition of law that ‘A Judgement Per Incuriam Cannot be said to be Binding’ which means that when a judgment is delivered in ignorance of the provisions of the statute and also in ignorance of the earlier decision of the larger bench, then in such cases the decisions is said to be Per Incuriam and therefore, not binding. Another question which we might come across is that in the aforementioned case, can the bench of lesser strength hold the decision of the bench of higher strength as a decision through inadvertence? The answer to this is YES. In Jagadish Prasad v. Passenger Tax Officer[3], the court held that a single judge can uphold a division bench decision as Per Incuriam.
When we say that this doctrine was developed by the English courts in relaxation to the rule of the doctrine of Stare Decisis, we were presumed to be moving in a direction of negating the version put up by Coke “THOSE THINGS WHICH HAVE BEEN ADJUDGED OUGHT TO REST IN PEACE[4]. When can we invoke the principle of Per Incuriam and say that a particular judgment be ignored? A clear answer to this lies in the rule of Sub- Silentio, which means a decision in which the court does not perceive a particular point of law that is involved in the decision, or where the decision has been rendered without any argument or reference or without any authority cited[5]. Such decisions passed by the courts are considered to hit on the rule of Sub-Silentio and thereby considered without moment[6]. It is in these situations the courts at present have opted to take recourse of the doctrine in the aforementioned proposition.
Rather than dealing with the question as to what can be considered a binding precedent, it would be easier to understand what cannot be considered to be binding under Article 141 of the Constitution. Any decision which does not express or any decision which is not founded on reasons nor does it take into consideration the issue involved cannot be deemed to be a law within the ambit of Article 141 of the Constitution. It is a 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[7].The sole reason why the courts have taken recourse under this doctrine is to be relieved from the injustice perpetrated from such unjust precedents in addition to upholding the core principles of judicial discipline.
Furthermore, there is a settled position of invoking the doctrine of Per Incuriam:
The Bombay High court in the case of Yeshbai v. Ganpat Irappa[8] categorically held that in order to decide a case per incuriam, it is not enough that a particular case was argued inadequately but it must be a case which has been decided in ignorance to the rule of law binding on the court.
In Balwant v. State of Madhya Pradesh[9], the court opined that any decision which is in turn disregarding the statutory provisions or is hit by the principle of Sub-Silentio cannot be considered to be a binding precedent.
In cases of identical facts and law, where a later court fails to take note of the statutory provisions and thereby reaches to a particular conclusion then in this case, the decision of the later court cannot be considered to be binding. It has been a settled law that the decision of the prior court on the identical facts or law binds the later courts on the same aspects unless the same has been decided Per Incuriam.
In Bhagawan Pillai v. State of Kerala[10], the courts herein opined that where a decision has been rendered without analyzing the statutory provisions, such decisions would not be considered as binding and would be said to be decided as per incuriam.
In Tata International Ltd v. Trisuns Chemicals Industry Ltd.[11], the court opines that where the ratio of a particular decision is in ignorance of the provisions of the Act, such decisions cannot be considered to be binding. These are some of the factors which should be considered while invoking the proposed doctrine or while labeling a precedent as non-binding.
Conclusion:
I would conclude by simplifying the aforementioned proposition by saying that: “The Rule of Per Incuriam can be applied in cases where the court omits to consider a binding precedent of the superior court or the same court on the same issue or if it omits to consider any statute”. Therefore, we must bear in mind that not all cases decided by the constitutional courts are binding even though it lays down a ratio, if such decisions are in ignorance of law or the provisions of the statute or decisions which are not founded on reasons. It is necessary to be mindful of this fact while citing decisions.
[1] State of UP v. Synthetics and Chemicals Ltd (1991) 4 SCC 139
[2] 1994 MH Lj 1669
[3] 1993 ALL LJ 655
[4] Waman Rao v. Union Of India (1981) 2 SCC 362
[5] (1941) 1 KB 675,677
[6] (1989) 1 SCC 101
[7] AIR 1967 SC 1480
[8] AIR 1975 Bom 20
[9] 2001 (3) MPLJ 414
[10] AIR 2004 SC 2317
[11] 2002 (2) Bom CR 88