The Doctrine of 'Per Incuriam'
The maxim 'per incuriam' is derived from the latin expression which means
'through inadvertence'.
Incuria means 'carelessness'. In practice, per
incuriam appears to mean per ignoratium.
Per incuriam, literally translated as through lack of care is a device within
the common law system of judicial precedent. A finding of per incuriam means
that a previous court judgment has failed to pay attention to relevant statutory
provision or precedents.
According to the Black's Law Dictionary (Fourth Edition, 1891), per incuriam
means through inadvertence. This means something done with oversight without
considering all the relevant factors. Further, the term also means 'through want
of care' or when translating from Latin, it means 'through lack of care' and it
concerns itself with the decision of the court which was mistakenly given.
A judicial decision is made per incuriam if it is made in ignorance of a
relevant statutory provision or a relevant binding decision of court and
awareness of that earlier provision or decision would have led to a different
result. However, a later court has the power to depart from an earlier decision
by relying on the per incuriam doctrine to justify exercising that power. The
English Courts were the first ones to develop this principle in relaxation of
the rule of stare decisis. Accordingly, the earlier decision is to be ignored if
it is rendered in ignorantium of a statute or other binding authority.
If the decision of the court is given per incurium, it is not a binding
precedent and therefore need not be followed by the lower courts. When a
judgment is pronounced without considering the relevant authorities or statutes,
it is said to be wrongly decided and therefore, does not have the force of law.
It would be apropos to refer to the case of
Mamleshwar Prasad and Another vs.
Kanhaiya Lal (Dead) through L.Rs. 1975 (2) SCC 232 wherein the Apex Court
dealt with the principle of per incuriam and observed thus:
7. Certainty of the law, consistency of rulings and comity of courts all
flowering from the same principle converge to the conclusion that a decision
once rendered must later bind like cases. We do not intend to detract from the
rule that, in exceptional instances, where by obvious inadvertence or oversight
a judgment fails to notice a plain statutory provision or obligatory authority
running counter to the reasoning and result reached, it may not have the sway of
binding precedents. It should be a glaring case, an obtrusive omission. No such
situation presents itself here and we do not embark on the principle of judgment
per incuriam.
The Apex Court in a catena of judgments has dealt with the Doctrine of Per
incuriam. It would be relevant to refer to the case of Punjab Land Development
and Reclamation Corporation Ltd. Chandigarh Vs. Presiding Officer, Labour Court
Chandigarh (1990) 3 SCC 682 wherein the Constitution Bench of the Apex Court
held thus:
We now deal with the question of per incuriam by reason of allegedly not
following the Constitution Bench decisions. The Latin expression per incuriam
means through inadvertence. A decision can be said generally to be given per
incuriam when this Court has acted in ignorance of a previous decision of its
own or when a High Court has acted in ignorance of a decision of this Court. It
cannot be doubted that Art. 141 embodies, as a rule of law, the doctrine of
precedents on which our judicial system is based.
The Constitution Bench of the Apex Court in A.R.Antulay vs. R.S. Nayak & Another
1988 (2) SCC 602 in para 42 has quoted the observations of Lord Goddard in Moore
vs. Hewwit [(1947) 2 All.ER 270] and Penny vs. Nicholas [(1950) 2 All.ER 89] to
the following effect:-
Per incuriam are those decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the court
concerned, so that in such cases some part of the decision or some step in the
reasoning on which it is based, is found, on that account to be demonstrably
wrong..................
The Apex Court in State of U.P. & Another vs. Synthetics & Chemicals Ltd. &
Another 1991 (4) SCC 139 in para 40 has observed thus :-
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). ...............
It would be trite to refer to the case of Siddharam Satlingappa Mhetre v. State
of Maharashtra (2011) 1 SCC 694 wherein the Apex Court dealt elaborately with
the doctrine of per incuriam & observed thus:
139. Now we deem it imperative to examine the issue of per incuriam raised by
the learned counsel for the parties. In Young v. Bristol Aeroplane Company
Limited (1994) All ER 293 the House of Lords observed that `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. The 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 Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders:
Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been
elucidated as under:
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
(Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293
at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.);
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.
140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All
ER 193 observed that 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.
141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead)
by LRs. and Others (2000) 4 SCC 262 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.
It would be worthwhile to refer to Hyder Consulting (UK) Ltd. vs. Governor,
State of Orissa, 2015 2 SCC 189 wherein the Apex Court discussed the scope of
this doctrine and observed thus:
13. 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......
14. Therefore, I am of the considered view that a prior decision of this Court
on identical facts and law binds the Court on the same points of law in a later
case. In exceptional circumstances, where owing to obvious inadvertence or
oversight, a judgment fails to notice a plain statutory provision or obligatory
authority running counter to the reasoning and result reached, the principle of
per incuriam may apply. The said principle was also noticed in the case of
Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356.
In State of Assam v. Ripa Sarma AIR 2013 SC 3588 the Apex Court held that when a
judgment is ignorant of earlier judgments of the court by either similar or
larger benches, it would be per incuriam and it falls under this doctrine of per
incuriam. Such a judgment cannot be called a precedent and need not be followed.
The Court held thus:
In the present case, the preliminary objection has been raised at the threshold.
In addition, it is an inescapable fact that the judgment rendered in Eastern
Coalfields Limited has been rendered in ignorance of the earlier judgments of
the Benches of coequal strength, rendering the same per incuriam. Therefore, it
cannot be elevated to the status of precedent.
The deliberation would be incomplete without referring to Apex Court judgment in
State of M.P. v. Narmada Bachao Andolan 2011 (12) SCC 333 wherein the 3 member
bench observed thus:
60. Incuria literally means carelessness. In practice per incuriam is taken to
mean per ignoratium. The Courts have developed this principle in relaxation of
the rule of stare decisis. Thus, the quotable in law is avoided and ignored if
it is rendered, in ignorance of a Statute or other binding authority. While
dealing with observations made by a seven Judges' Bench in India Cement Ltd.
etc. etc. v.
State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges' Bench in State
of West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201, observed as
under:-
A doubtful expression occurring in a judgment, apparently by mistake or
inadvertence, ought to be read by assuming that the Court had intended to say
only that which is correct according to the settled position of law, and the
apparent error should be ignored, far from making any capital out of it, giving
way to the correct expression which ought to be implied or necessarily read in
the context, ..........
A statement caused by an apparent typographical or inadvertent error in a
judgment of the Court should not be misunderstood as declaration of such law by
the Court. (Emphasis added) (See also Mamleshwar Prasad & Anr. v. Kanhaiya Lal
(Dead) by Lrs., AIR 1975 SC 907; A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531;
State of U.P. & Anr. v. Synthetics and Chemicals Ltd. & Anr., (1991) 4 SCC 139;
and Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., (2011) 1 SCC
694).
61. Thus, per incuriam are those decisions given in ignorance or forgetfulness
of some statutory provision or authority binding on the Court concerned, or a
statement of law caused by inadvertence or conclusion that has been arrived at
without application of mind or proceeded without any reason so that in such a
case some part of the decision or some step in the reasoning on which it is
based, is found, on that account to be demonstrably wrong.
The Apex Court in the case of
State of Orissa v. Nalinkanta Muduli,
(2004) 7 SCC 19 deprecated the practice of citing an overruled decision by the
legal fraternity as a precedent without informing the court that it has been
overruled. The Court said that the advocates are officers of the court and it is
their prime duty to assist the Court in delivery of justice and not to mislead
it. The Court observed thus:
It is strange that a decision which has been overruled by this Court nearly
quarter of a century back was cited by the Bar and the court did not take note
of this position and disposed of the matter placing reliance on the said
overruled decision. It does not appear that the decision of this Court reversing
the judgment of the High Court was brought to the notice of the learned Single
Judge who was dealing the matter.
It is a very unfortunate situation that learned counsel for the accused who is
supposed to know the decision did not bring this aspect to the notice of the
learned Single Judge. Members of the Bar are officers of the Court.
They have a bounden duty to assist the Court and not mislead it. Citing judgment
of a Court which has been overruled by a larger Bench of the same High Court or
this Court without disclosing the fact that it has been overruled is a matter of
serious concern. It is one thing that the Court notices the judgment overruling
the earlier decision and decides on the applicability of the later judgment to
the facts under consideration on it.
It also does not appear that learned counsel appearing for the respondent before
the High Court did not refer to judgment of this Court. All this shows that the
matter was dealt with very casually. From the judgment of the High Court it is
noticed that the hearing was concluded on 13.3.2003 and the judgment was
delivered on 25.4.2003.
It was certainly the duty of the counsel for the respondent before the High
Court to bring to the notice of the Court that the decision relied upon by the
petitioner before the High Court has been overruled by this Court. Moreover, it
was duty of the learned counsel appearing for the petitioner before the High
Court not to cite an overruled judgment. It is not that the decision is lost in
antiquity.
It has been referred to in a large number of cases since it was rendered. It has
been referred to recently in many cases e.g. S.M. Datta v. State of Gujarat (
2001 (7) SCC 659), M.C. Abraham V. State of Maharashtra ( 2003 (2) SCC 649),
Union of India v. Prakash P. Hinduja ( 2003 (6) SCC 195) and earlier in many oft
cited decisions in State of Haryana v. Bhajan Lal ( 1992 Supp. (1) SCC 335 ),
Janta Dal v. H.S. Chowdhary ( 1992 (4) SCC 305), Union of India v. W.N. Chadha (
1993 Supp. (4) SCC 260) and State of Bihar v. P.P. Sharma ( 1992 Supp. (1) SCC
222).
We can only express our anguish at the falling standards of professional
conducts. Impugned judgment of the High Court is set aside. We remit the matter
back to the High Court so that it can deal the petitions afresh and decide on
merits taking into account the decision and all other relevant aspects of this
Court. All the petitions before the High Court which were disposed of by the
impugned judgment shall stand restored to its original position to be dealt with
in accordance with law.
The principle of per incuriam is an established principle of law whereby the
judgments carried in forgetfulness or omission of a certain precedent or law or
a statute are not valid judgments and therefore they are an exception to the
rule of doctrine of stare decisis and such judgments are not valid precedents
for other similar cases and do not hold any value in the eyes of law.
Written By: Inder Chand Jain
Email:
[email protected], Ph no: 8279945021
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