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An Analysis Of Concept Of Per Incuriam

The text of Mahabharata says that path is the right path which has been followed by virtuous men. The concept of precedent is based on this theory. The edifice of the common law is made up of Judicial decisions. The doctrine of precedents grew in England in absence of codified laws. The Rule of Law requires not over turning precedents too often.

Aristotle said the habit of lightly changing the laws is an evil. In Government of India Act, 1935, the hierarchy of Courts was created, with Federal Court as the Superior Court. Section 212 of the Act provided that law declared by the Federal Court and any Judgment of the Privy Council shall, so far as applicable, be recognised as Binding Precedent on and shall be followed by all Courts in British India. After Independence, Article 141 of the Constitution of India provided that law declared by the Supreme Court shall be binding on all Court within the territory of India.

महाजनो येन गतः स पन्थाः Meaning of word 'Per Incuriam'


The word 'Per Incuria' literally means 'Carelessness'. 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.

In the Advanced Law Lexicon by P. Ramanatha Aiyer's (5th Edition), it has been defined as under:
Per Incuriam. (Lat.) (of a Judicial decision) wrongly decided, usually because the Judge or Judges were ill-informed about the applicable law.

Through inadvertence or through want of care. Through carelessness, through inadvertence.
'Per Incuriam' means 'through want of care'. A decision of the Court which is mistaken. A decision of the Court is not a Binding Precedent if given Per Incuriam, i.e. without the Court's attention having been drawn to the relevant authorities, or statutes.

If the decision of the Court is given Per Incurium, it is not a binding Precedent and, therefore, need not be followed as a Thumb Rule by the Lower Courts. When a Judgement is pronounced without paying the requisite attention to the relevant authorities or statutes, it is said to be wrongly decided and, therefore, does not have the force of Law.

The significance of a Judgment having been decided Per Incuriam is that it does not then have to be followed as Precedent by a Lower Court. Ordinarily, in the Common Law, the Rationes of a Judgment must be followed thereafter by Lower Courts while hearing similar cases. A Lower Court is free, however, to depart from an earlier Judgment of a Superior Court where that earlier Judgment was decided Per Incuriam. Also the said Doctrine is an exception to Article 141 of Constitution of India which embodies the Doctrine of Precedents as a matter of law.

Sir John Salmond in his 'Treatise On Jurisprudence' has aptly stated the circumstances under which a precedent can be treated as 'Per Incuriam'. It is stated that a precedent is not binding if it was rendered in ignorance of a Statute or a Rule having the force of statute or delegated legislation.

C. C. K. Alien in 'Law In The Making' analyzed the concept of 'Per Incuriam'. According to him, 'Incuria' means literally 'carelessness' which apparently is considered less uncomplimentary than ignorantia; but in practice 'Per Incuriam' applies to mean 'Per Ignorantiam'. It would almost seem that 'Ignorantia Juris Neminem Excusat' � except a Court of Law, ignorance of what? Ignorance of a Statute, or of a Rule having statutory effect which would have affected the decision if the Court had been aware of it.

Constitutional Provisions Regarding Precedents
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 as per Article 227 of the Constitution of India and the Law declared by Supreme Court of India are considered the law of the land and to be binding in all Courts as per Article 141 of Constitution of India. The law declared has to be construed as a principle of law that emanates from a Judgment, or an interpretation of a law or Judgment by the Supreme Court, upon which, the case is decided. Hence, it flows from the above that the law declared is the principle culled out on the reading of a Judgment as a whole in the light of the questions raised, upon which the case is decided. {See: [Fida Hussain & Ors. Vs Moradabad Development Authority & Anr., (2011) 12 SCC 615]; [Ambica Quarry Works & Anr. Vs State of Gujarat & Ors., (1987) 1 SCC 213; and [CIT Vs Sun Engg. Works (P) Ltd., (1992) 4 SCC 363]}.

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 co-equal 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. [Jaisri Sahu Vs Rajdewon Dubey & Ors, AIR 1962 SC 83]; [Union of India & Anr. Vs Raghubir Singh, (1989) 2 SCC 754]; [Anugrah Narain Singh & Anr. Vs State of U. P & Ors. (1996) 6 SCC 303] and [Delhi Development Authority Vs Ashok Kumar Behal & Ors., AIR 2002 SC 2940].
     
  3. Decisions of a Smaller Bench prevails, which deals with and explains the decision of larger Bench. [Union of India Vs Nirala Yadav, (2014) 9 SCC 457].
     
  4. If decision of co-ordinate Benches of equal strength differ, and the later decision does not notice or consider the earlier decision, then the Court may choose to follow that decision which is closer to the facts of the case at hand and deals more directly with the legal issue.
     
  5. If a Court considering a particular provision of law is faced with two decisions, it will follow the one, which deals with the same or identical provision rather than the decision which deals with a similar but not an identical provision, even if the latter is by a Larger Bench or a later Judgment.
     
  6. When a Constitution Bench has decided an issue and subsequent smaller Benches have not considered it or answered the similar issues somewhat differently, the later decisions should be construed in terms of the Constitution Bench decision as the smaller Benches could not have intended a different view.

The principle of Stare Decisis is stated thus in [Waman Rao & Ors. Vs Union of India & Ors., (1981) 2 SCC 362]:

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 Vs State of Maharashtra & Ors., 2005 SCC OnLine Bom 1283] as under;

24. The Full Bench of this Court in [Kamleshwar Ishwardas Patel Vs Union of India & Ors., 1995 Supp (3) SCCN732] reported in 1994 Mah 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 [Atma Ram Vs State of Punjab & Ors., 1959 Supp (1) SCR 748].

The moot questions arise as to;
  1. What is the correct course to be followed when 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?
     
  2. 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.

Judicial Development in India
The concept of Per Incuriam was examined in [Hyder Consulting (UK) Ltd. Vs State of Orissa, (2015) 2 SCC 189], 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. Vs Synthetics and Chemicals Ltd, (1991) 4 SCC 139], wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC Page 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 be considered 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 & Ors. Vs Jeet S. Bisht & Anr., (2007) 6 SCC 586], is a decision where a mere direction is issued without laying down any principle of law.

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 Vs Gurnam Kaur, (1989) 1 SCC 101] (Vide Paras 11 & 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 Vs Worth of Paris Ltd, (1936) 2 All ER 905 (CA)] 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. Vs Bremith Ltd., (1941) 1 KB 675] 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.

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.

In [Municipal Committee, Amritsar Vs Hazara Singh, (1975) 1 SCC 794], the Supreme Court observed that only a statement of law in a decision is binding.
..............But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141 of Constitution of India. Statements on matters other than law have no binding force.
A mere direction without laying down any principle of law is not a precedent. Everything in a decision is not a precedent.

Supreme Court in [State of U. P. & Anr. Vs Synthetics & Chemicals Ltd. & Anr., (1991) 4 SCC 139] while elaborating that a decision which is not express and is not founded on reasons nor proceeds on consideration of issue, held as under;

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 Vs Bristol Aeroplane Co. Ltd., (1944) 1 KB 718].

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 Vs Rajdewan Dubey & Ors., (1962) 2 SCR 558] 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., Page 153).

In [Lancaster Motor Company (London) Ltd. Vs Bremith Ltd., (1941) 2 All ER 11], 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 Vs Gurnam Kaur, (1989) 1 SCC 101].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 Vs Union Territory of Pondicherry, (1967) 2 SCR 650], 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.

A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of Constitution of India. That which has escaped in the Judgment is not ratio decidendi. This is the Rule of Sub-silentio, in the technical sense when a particular point of law was not consciously determined. The Supreme Court of India in [Arnit Das Vs State of Bihar, (2000) 5 SCC 488] held that;

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.

The Supreme Court [ Divisional Controller, KSRTC Vs Mahadeva Shetty & Anr., (2003) 7 SCC 197] held that the scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation as follows;

23. So far as Nagesha's case (supra) relied upon by the claimant is concerned, it is only to be noted that the decision does not indicate the basis for fixing of the quantum as a lump sum was fixed by the Court. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered.

The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.

The task of finding the principle is fraught with difficulty as without an investigation into the facts, it cannot be assumed whether a similar direction must or ought to be made as measure of social justice. Precedents 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.


In [Uttaranchal Road Transport Corporation & Ors. Vs Mansaram Nainwal, (2006) 6 SCC 366], Supreme Court held as under;
A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving Judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates:
  1. Findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
  2. Statements of the principles of law applicable to the legal problems disclosed by the facts; and
  3. Judgment based on the combined effect of the above.

A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the Judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: [State of Orissa Vs Sudhansu Sekhar Misra & Ors., AIR 1968 SC 647] and [Union of India & Ors. Vs Dhanwanti Devi & Ors., 1996 (6) SCC 44]. A case is a precedent and binding for what it explicitly decides and no more.

The words used by Judges in their Judgments are not to be read as if they are words in an Act of Parliament. In Quinn Vs Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every Judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.

Conclusion
The principle of Per Incuriam is an established principle of law, where the Judgments are the results of omission of particular statute or law and hence cannot be considered as a valid Judgment. Therefore, is an exception to doctrine of Stare Decisis. For an instance if a Judgment is given in the scenario where the Court has considered all the relevant provisions and statues before the delivery of the Judgment, the decision is not Per Incuriam. It can be concluded that decision given Per Incuriam are moreover an omission done. Hence, it should not hold any value in the eyes of law.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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