Skip to main content

Authority of SC under article 141

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.

In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under : "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."


1.      Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. It is the ratio decidendi [reasons for the decision] of a judgment and not the final order in the judgment, which forms a precedent.

2.      What is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.

3.      It is not everything said by a judge while giving judgment, constitutes a precedent. The enunciation of the reason or principle on which a question before the court has been decided, is alone binding as a precedent.

4.      A judgment should be understood in the light of the facts of that case, and no more should be read into it than what it actually says.

5.      Every judgment to qualify to be a precedent should invariably answer an issue of law; and a decision is available as a precedent only if it decides a question of law.

6.      The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided.

7.      It is well settled that a decision of the Apex Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of the Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141.

8.      The expression “declared” in Article 141 of the Constitution is wider than the words “found or made”. To declare is to announce opinion. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law.

AIR 2004 SC 2890

Para 13: That being so, the Judgment in Harjeet Singh's case (supra) does not in any assist the appellant. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if they were, said Bose J. about half century back in Willie (William) Slaney V/s. The State of Madhya Pradesh, (1955(2) SCR 1140 at page 1169).

A decision is available as a precedent only if decides a question of law. A Judgement should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the Judgement of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The Judgement must be read as a whole and the observations from the Judgement have to be considered in the light of the questions which were before this Court.


How the Law is declared or laid down


AIR 1992 SC 1593

Para 6: A decision is available as a precedent only if it decides a question of law.


[(2012) 3 SCC 387]

Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.

28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.

28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.

AIR 1991 SC 101 (Constitution Bench of Five Judges)

The expression “declared” is wider than the words “found or made”. To declare is to announce opinion. Indeed the latter involves the process, while the former expresses the result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law.


(2003) 6 SCC 697 [Constitution Bench of Five Judges]

Para 2: The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the Judgement is what is set out in the Judgement itself. The answer to the question would necessarily have to be read in the context of what is set out in the Judgement and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the Judgement has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.

Para 139: A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a Judgement is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others V/s. N.C. Budharaj (Deceased) By LRs. And Others]

Para 143: It will not, therefore, be correct to contend, as has been contended by Mr. Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefore, it would be essential to read the other paragraphs of the Judgement also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties.


2007 (3) SCC 720 (Three Judges Bench)

Para 10: Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent.


2011 (12) SCC 615 (Two judges Bench)

18 In the case of Director of Settlements, A.P. V/s. M.R. Apparao, (2002) 4 SCC 638, this Court held:

"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. ... The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case..."

20 It is now well settled that a decision of this Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of this Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141. However, if the question of law before the Court is same as in the previous case, the judgment of the Court in the former is binding in the latter, for the reason that the question of law before the Court is already settled. In other words, if the Court determines a certain issue for a certain set of facts, then, that issue stands determined for any other matter on the same set of facts.


[(1990) 3 SCR 352]

It was observed that the enunciation of the reason or principle upon which a question before a Court has been decided is alone binding as a precedent, and the ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract the specific pecularities of the particular case which gives rise to the decision.



Precedents – Judgments delivered by Single Bench – Division Bench – Constitution Bench etc

Siddharam Satlingappa Mhetre Versus State of Maharashtra and Others (2011) 1 SCC 694 –The judgment of a larger strength is binding not only 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.


A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 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 (3) and Others (2006) 4 SCC 1 is binding on all Courts including this Court till the same is overruled by a larger Bench.

Para 60 …. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.

Para 65. ……….The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges -- a proposition that learned counsel for the appellants did not dispute.

…..In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges.

Para 66 ……"the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be immediate casualty"


In the case of P. Ramachandra Rao Versus, State of Karnataka, a 7 Judges Bench of the Apex court, in respect of doctrine of precedents, observed to say that –

The well settled principle of precedents which has crystallized into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefrom. (Para 29)


AIR 2011 SC 421

In Central Board of Dawoodi Bohra Community and Anr.V/s. State of Maharashtra and Anr. [(2005) 2 SCC 673], (para 12), a Constitution Bench of this Court summed up the legal position in the following terms :

"(1) 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 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.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing."

The above principles and norms stated with reference to the Supreme Court are equally relevant and applicable to the High Court also.


Doctrine of Precedents vis a vis to doctrine of Stare decisis


[AIR 2001 SC 8]

32 On the other count Mr. Chidambaram's submission pertaining to delegated legislation in taxing statute however, does not call for any detail discussion since the authority of the legislature in introducing the Act of 1957 cannot be doubted in any way and in any event is a settled proposition of law for more than a decade and it is on this score that the doctrine of stare decisis has its due application in the contextual facts and in this context the decision of this Court in Mishri Lal's case, (Mishri Lal (d) by L.Rs. V/s. Dhirendra Nath (d) by L.Rs., (1999) 4 SCC 11 : (1999 AIR(SCW) 2350 : AIR 1999 SC 2286) seem to be rather apposite. This Court observed :

11. It is further to be noted that Meharban Singh's case, (AIR 1971 SC 77) came to be decided as early as 1970 and has been followed for last three decades in the State of Madhya Pradesh and innumerable number of matters have been dealt with on the basis thereof and in the event, a different view is expressed today, so far as this specific legislation is concerned, it would unsettle the situation in the State of Madhya Pradesh and it is on this score also that reliance on the doctrine of 'stare decisis' may be apposite. While it is true that the doctrine has no statutory sanction and the same is based on a Rule of convenience and expediency and as also on 'Public Policy' but in our view, the doctrine should and ought always to be strictly adhered to by the Courts of law to sub-serve the ends of justice.

12. This Court in Maktul V/s. Mst. Manbhari, 1959 SCR 1099 , explained the scope of the doctrine of stare decisis with reference to Halsbury's Laws of England and Corpus Juris Secundum in the manner following :-

"The principles of 'Stare Decisis' is thus stated in Halsbury's Laws of England :
"Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the Court establishing the rule, even though the Court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake".

The same doctrine is thus explained in Corpus Juris Secundum :-
"Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the Courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the Courts, it is not universally applicable."

13. Be it noted however that Corpus Juris Secundum, adds a rider that "previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the Courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the Court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.

14. The statement though deserves serious consideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does not denude the time tested doctrine of Stare Decisis its efficacy".

33 The two English decisions (Admiralty Commrs. V/s. Valverda Owners, (1938) AC 173 at 194 and Button V/s. Director of Public Prosecution, Swain V/s. Director of Public Prosecutions, (1966) AC 591 also sound a similar note.

34 Recently Paripoornan, J. in Kattite Valappil Pathumma V/s. Taluk Land Board, (1997) 4 SCC 114 : (1997 AIR(SCW) 1142 : AIR 1997 SC 1115) in paragraph 18 observed :

"We are further of the view, that even if another view is possible, we are not inclined to take a different view at this distance of time. Interpretation of the law is not a mere mental exercise. Things which have been adjudged long ago should be allowed to rest in peace. A decision rendered long ago can be overruled only if this Court comes to the conclusion that it is manifestly wrong or unfair and not merely on the ground that another interpretation is possible and the Court may arrive at a different conclusion. We should remember that the law laid down by the High Court in the above decision has not been doubted so far. The Act in question is a State enactment. These are weighty considerations to hold that even if a different view is possible, if it will have the effect of upsetting or reopening past and closed transactions or unsettling titles all over the State, this Court should be loathe to take a different view. On this ground as well, we are not inclined to interfere with the Judgement under appeal."

35 On the wake of the aforesaid, we do feel it expedient to record that taking recourse to the doctrine as above would be an imperative necessity, so to avoid uncertainty and confusion, since the basic feature of law is its certainty and in the event of any departure therefrom the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline - a situation which always ought to be avoided. The central legislature introduced the legislation (MMRD Act) in the year 1957 and several hundreds and thousands of cases have already been dealt with on the basis thereof and the effect of a declaration of a contra law would be totally disastrous affecting the very basics of the revenue jurisprudence. It is true that the doctrine has no statutory sanction but it is a rule of convenience, expediency; prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and subserve the ends of justice.



2011 (2) SCC 132

It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim "stare decisis et non quietamovere", which means "to stand by decisions and not to disturb what is settled." Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. in WamanRao V/s. Union of India, (1981) 2 SCC 362 at pg. 392 thus:

"40. ... for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis."

10 In Manganese Ore (India) Ltd. V/s. Regional Asstt. CST, (1976) 4 SCC 124, at page 127, it was opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

11 In Ganga Sugar Corpn. V/s. State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned that, "the Judgments of this Court are decisional between litigants but declaratory for the nation." This Court further observed:
"28. ... Enlightened litigative policy in the country must accept as final the pronouncements of this Court... unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions."

12 In Union of India V/s. Raghubir Singh, (1989) 2 SCC 754, at page 766, this Court has enunciated the importance of doctrine of binding precedent in the development of jurisprudence of law:
"8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. 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."

13 In Krishena Kumar V/s. Union of India, (1990) 4 SCC 207, at page 233, this Court has explained the meaning and importance of sparing application of the doctrine of Stare Decisis:

"33. Stare decisis et non quietamovere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it."

14 In Union of India &Anr. V/s. Paras Laminates (P) Ltd, (1990) 4 SCC 453 at pg. 457, this Court observed as under :-

"9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters".

It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled.

15 In Hari Singh V/s. State of Haryana, (1993) 3 SCC 114, at page 120, this Court stated the importance of consistent opinions in achieving harmony in Judicial System:
"10. It is true that in the system of justice which is being administered by the courts, one of the basic principles which has to be kept in view, is that courts of coordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on a question of law. If courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy."

16 In Tiverton Estates Ltd. V/s. Wearwell Ltd., (1975) Ch 146 at page 371, Sorman L. J., while not agreeing with the view of Lord Denning, M.R. about desirability of not accepting previous decisions, said as follows:
"I decline to accept his lead only because I think it damaging to the law to the long term--though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty--one of great objectives of law."

17 The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. The pronouncement of law by a larger Bench of the this Court is binding on a Division Bench of this court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. We further add that it would be inappropriate to reagitate the very issue or a particular provision, which this Court had already considered and upheld.




PER IN-CURIAM DECISIONS



1991 (4) SCC 139

Para 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/s. Bremith Ltd. 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/s. Gurnam Kaur. 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 Art. 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the Judgement without any occasion is not ratio decidendi. In B. Shama Rao V/s. Union Territory of Pondicherry 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 arid uniformity but rigidity beyond reasonable limits is inimical to the growth of law.


2011 (7) SCC 639 (Three Judges Bench)

Para 61: "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.



State of Uttar Pradesh and another V/s. Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139

Hon ble Justice Sahai in his concurring Judgement held that a decision which is not expressed and is not founded on reasons, nor it proceeded on consideration of issue, cannot be deemed to be a law declared to have binding effect as is contemplated by Art. 141. The learned Judge further observed that any declaration or conclusion arrived at without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.


AIR 2002 SC 1598

7 So far as the first question is concerned. Art. 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a Judgement as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A Judgement of the Court has to be read in the context of questions which arose for consideration in the case in which the Judgement was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Art. 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a Judgement of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A Judgement of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr. Rao in elaborating his arguments contending that the Judgement of this Court dated 6/02/1986 cannot be held to be a law declared by the Court within the ambit of Art. 141 of the Constitution. Mr. Rao relied upon the Judgement of this Court in the case of Pandit M. S. M. Sharma V/s. Shri Sri Krishna Sinha and others, 1959 Suppl (1) SCR 806, wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject matter of consideration. In the aforesaid Judgement it has been observed by the Court that the decision in Gunupati Keshavram Reddy V/s. Nafisul Hasan, relied upon by the counsel for the petitioner which entirely proceeded on a concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law.

11 A recent decision of this Court in Arnit Das V/s. State of Bihar, 2000 (5) SCC 488, was also pressed into service by Mr. Rao. In the aforesaid case this Court had observed that a decision not expressed and accompanied by reasons and not proceeded on a conscious consideration of issue cannot be deemed to be a law declared to have a binding effect as contemplated under Art. 141 of the Constitution.


1990 (3) SCC 682 (Constitution Bench of Five Judges)

Para 40: 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. In Bengal Immunity Company Ltd. V/s. State of Bihar , it was held that the words of Art. 141, "binding on all courts within the territory of India", though wide enough to include the Supreme court, do not include the Supreme court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice.

Para 43: As regards the judgments of the Supreme court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind.

Para 46: To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided. Sir George Jessel in Osborne V/s. Rowlatt , remarked that (Ch D, p. 785 'the only thing in a Judges decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided'.


[(1989) 1 SCC 101]

Para 11: Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P. J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words :
"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."

Para 12: In Gerard V/s. Worth of Paris Ltd. (K), (1936) 2 All ER 905 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/s. 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. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.


AIR 2012 SC 1228

Para 32: The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young V/s. Bristol Aeroplane Company, Limited reported in 1944 (1) K.B. 718.

Para 33: Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered `per incuriam'. The principles are:
"Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam."
(Page 729)

Para 34: The decision in Young (supra) was subsequently approved by the House of Lords in Young V/s. Bristol Aeroplane Company, Limited reported in 1946 Appeal Cases 163 at page 169 of the report.

Para 35: Lord Viscount Simon in the House of Lords expressed His Lordship's agreement with the views expressed by the Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon at page 169 of the report).

Para 36: Those principles have been followed by the Constitution Bench of this Court in The Bengal Immunity Company Limited V/s. The State of Bihar and others reported in 1955 (2) SCR 603 [See the discussion in pages 622 and 623 of the report].

Para 37: The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. V/s. Wakeling & another [(1955) 2 QB 379 at page 406]. The principle has been stated as followed:

"...As a general rule the only cases in which decisions should be held to have been given per incuriam are those of 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......."
(page 406)

Para 38: In the case of State of U.P. and another V/s. Synthetics and Chemicals Ltd. and another reported in (1991) 4 SCC 139, this Court held the doctrine of `per incuriam' in practice means `per ignoratium' and noted that English Courts have developed this principle in relaxation of the rule of stare decisis and referred to the decision in the case of Bristol Aeroplane Co. Ltd. (supra). The learned Judges also made it clear that the same principle has been approved and adopted by this Court while interpreting Article 141 of the Constitution (see para 41).

Para 39: In the case of Municipal Corporation of Delhi V/s. Gurnam Kaur reported in (1989) 1 SCC 101, a three- Judge Bench of this Court explained this principle of per incuriam very elaborately in paragraph 11 at page 110 of the report and in explaining the principle of per incuriam the learned Judges held:
"......A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute......."

Para 40: In paragraph 12 the learned Judges observed as follows:

"......One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."


2010 (5) SCC 513

Para 51: When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered 'per incuriam'. This concept of "per incuriam' has been explained in many decisions of this Court. Justice sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of a. R. Antulay V/s. R. S. Nayak and another reported in [jt1988 (2) SC 408 : 1988 (2) SCC 602] explained the concept in paragraph 42 at page 652 of the report in following words: "per incuriam" are those decisions given in ignorance or for get fulness 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.

Para 52: Subsequently also in the Constitution Bench judgment of this Court in Punjab Land development and Reclamation corporation Ltd. , Chandigarh V/s. Presiding officer, Labour Court, Chandigarh and others reported in [jt 1990 (2) SC 489 : 1990 (3) SCC 682], similar views were expressed in paragraph 40 at page 705 of the report.

2009 (15) SCC 458

Para 44 …..

In Black's Law Dictionary, 8th edition, 2004, it is stated: "There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, where the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority.... The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked." Louis- Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988) "As a general rule the only cases in which decisions should be held to have been given per incuriam are those of 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 features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence." Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th ed. 1991)"

In an article "Final Appellate Courts Overruling Their Own "Wrong" Precedents: The Ongoing Search For Principle" by B.V. Harris published in (2002) 112 LQR 408-427, it is stated: "A decision may be held to be per incuriam where relevant statutory provisions, or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent.... Considerations Relevant To Deciding whether to Defer to or Overrule Precedent: The first consideration for a final appellate court called upon, in the exercise of its discretion, to overrule an allegedly wrong precedent of its own, will be whether the precedent can be distinguished on the facts, including changing social and other contexts, or distinguished on the law. If the precedent can be distinguished, overruling will not be necessary. The subsequent appellate court will rather be free to choose not to follow the precedent which can be distinguished. Second, the precedent should be considered closely to determine whether the decision was reached per incuriam. A per incuriam precedent may be overruled. Third, the workability of the precedent should be assessed. Evidence of lack of workability may justify overruling. The fourth consideration will be whether any reasons have been advanced in the appeal which were not considered in deciding the precedent. This category could arguably be included in many circumstances, either in the first category as a form of distinguishing, or in the second category if the omission is sufficiently serious to cause the precedent to be per incuriam.

All of the first four considerations have traditionally been accepted as exempting subsequent appellate courts from the obligation to follow precedent."

In the context of overruling the two leading precedents {de Freitas v. Benny [1976] AC 239 and Reckley V/s. Minister of Public Safety and Immigration (No. 2) [1996] A.C.527} which had held the exercise of the prerogative of mercy to be non-justiciable, Lord Slynn of Hadley in Lewis V/s. Att. Gen. Of Jamaica [2001] 2 AC 50 at p. 75, stated: "The need for legal certainty demands that they should be very reluctant to depart from recent fully reasoned decisions unless there are strong grounds to do so. But no less should they be prepared to do so when a man's life is at stake, where the death penalty is involved, if they are satisfied that the earlier cases adopted a wrong approach. In such a case rigid adherence to a rule of stare decisis is not justified."

AIR 2005 SC 498

Incuria literally means carelessness - in practice per incuriam is taken to mean per ignoratium - Art. 141 embodies doctrine of precedents as matter of law - to rectify error is compulsion of judicial conscience - appeal allowed.

Para 18. ……The view regarding extension of time to "move" the higher court as culled out from the decision in K.L. Verma case shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Sec. 439 requiring the accused to be in custody. In State V/s. Raton Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands on a par, if not, on a better footing. The provisions of Sec. 439 do not appear to have been taken note of.

Para 19 "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young V/s. Bristol Aeroplane Co. Ltd. is avoided and ignored if it is rendered "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Art. 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of Uttar Pradesh V/s. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.


1990 (3) SCC 682

Para 40 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. In Bengal Immunity Company Ltd. V/s. State of Bihar , it was held that the words of Art. 141, "binding on all courts within the territory of India", though wide enough to include the Supreme court, do not include the Supreme court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawsons Settlement Lloyds Bank Ltd. V/s. Dawson 0, on 26.07.1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

"Their Lordships regard the use of precedent indispensable foundation upon which to decide what is the its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law."

Para 41 Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when considered justified. sec. 212 of the government of India Act, 1935 and Art. 141 of the Constitution of India were enacted to make the law declared by the Supreme court binding on all courts in the country excluding, as is now being interpreted, the Supreme court itself. The doctrine of ratio decidendi has also to be interpreted in the same line. In England a decision is said to be given per nickname when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. It has been said that the decision of the House of Lords mentioned above, refers to a decision subsequent to that of the court of Appeal. However, "a prior decision of the House of Lords inconsistent with the decision of the court of Appeal, but which was not cited to the court of Appeal will make the later decision of the court of Appeal of no value as given per incunam." But if the prior decision had been cited to the court of Appeal and that court had misinterpreted a previous decision of the House of Lords, the court of Appeal must follow its previous decision and leave the House to rectify the mistake. In Halsburys Laws of England (4th edn" Vol. 10, para 745, it has been said: "While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so. Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle. Only in rare cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the Acts.

Para 42 The position and experience in this court could not be much different, keeping in view the need for proper development of law and justice.

(2011) 1 SCC 694

Para 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."

Para 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.

Para 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."

Para 142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under : 

"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."

Para 143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 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."

Para 144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the Court observed as under : 

"With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or withD. C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."

Para 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.

Para 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has 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.

Para 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 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 (3) and Others (2006) 4 SCC 1 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. In para 90, the Court observed as under : 

"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."

Para 148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458, this 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 Court in para 110 observed as under : 

"Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 andE.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."

Para 149. 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.


2015 AIR SC 856

Para 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. In this regard, I refer to the case of State of U.P. V/s. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, wherein Justice R.M. Sahai, in his concurring opinion stated as follows:

"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'. ..."

Para 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/s. Jindal Exports Ltd., (2001) 6 SCC 356.



AIR 2011 SC 1989

59 The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi V/s. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka & Ors. V/s. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana & Anr.V/s. Dharam Singh & Ors.(2009) 4 SCC 340).
PER INCURIAM - Doctrine:

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/s. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges' Bench in State of West Bengal V/s. 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/s. Kanhaiya Lal (Dead) by Lrs., AIR 1975 SC 907; A.R. Antulay V/s. R.S. Nayak, AIR 1988 SC 1531; State of U.P. & Anr. V/s. Synthetics and Chemicals Ltd. &Anr., (1991) 4 SCC 139; and Siddharam Satlingappa Mhetre V/s. 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.

62 Admittedly, the NWDT Award did not provide for allotment of agricultural land to the major sons of such oustees. The States of Gujarat and Maharashtra had given concessions/relief over and above the said Award. Thus, the Narmada Bachao Andolan-I has been decided with presumption that such a right had been conferred upon major sons by the NWDT Award and Narmada Bachao Andolan-II has been decided following the said judgment and interpreting the definition of "family" contained in the R & R Policy. When the two earlier cases were being considered by the Court, it had not been brought to its notice that the NWDT Award did not provide for such an entitlement. In such cases, the issue is further required to be considered as to whether, as we will consider the definition of the word "family" at a later stage, the mistake inadvertently committed by this Court earlier, should be perpetuated.

63 The Courts are not to perpetuate an illegality, rather it is the duty of the courts to rectify mistakes. While dealing with a similar issue, this Court in Hotel Balaji & Ors. etc. etc. V/s. State of A.P. & Ors. etc. etc., AIR 1993 SC 1048 observed as under:
"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce V/s. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".
(See also Nirmal Jeet Kaur V/s. State of M.P. & Anr., (2004) 7 SCC 558; and Mayuram Subramanian Srinivasan V/s. CBI, AIR 2006 SC 2449).

64 In re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619, this Court observed :

"...None is free from errors, and the judiciary does not claim infallibility. It is truly said that a judge who has not committed a mistake is yet to be born. Our legal system in fact acknowledges the fallibility of the courts and provides for both internal and external checks to correct the errors. The law, the jurisprudence and the precedents, the open public hearings, reasoned judgments, appeals, revisions, references and reviews constitute the internal checks while objective critiques, debates and discussions of judgments outside the courts, and legislative correctives provide the external checks. Together, they go a long way to ensure judicial accountability. The law thus provides procedure to correct judicial errors."


AIR 1988 SC 1531

Para 83: This case has caused us considerable anxiety. The appellant-accused has held an important position in this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act. That could not possibly be done because of the directions of this court dated 16.02.1984, as indicated above. It has not yet been found whether the appellant is guilty or innocent. It is unfortunate, unfortunate for the people of the State, unfortunate for the country as a whole, unfortunate for the future working of democracy in this country which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles. The appellant may be guilty of grave offences alleged against him or he may be completely or if not completely to a large extent, innocent. Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is commonplace today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the crossroads of values. It is, for the sovereign people of the country to settle these conflicts yet the courts have vital roles to play in such matters. With the avowed object of speedier trial the case of the appellant had been transferred to the High court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law, and contrary to the constitutional provisions. The appellant may or may not be an ideal politician'. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant - Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16.02.1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Art. 21 of the constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16.02.1984 this court had also unintentionally caused the appellant the denial of rights under Art. 14 of the Constitution by denying him the equal protection of law by being, singled out for a special procedure not provided for by law. When these factors are brought to the notice of this court, even if there are any technicalities this court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "Actus Curiae Neminem Gravabit" an act of the court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.

Para 84 Lord Cairns in Rodger V/s. Comptoir D'escompte De Paris observed thus:

Now, their Lordships are of opinion, that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression 'the act of the court' is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case. It is the duty of the aggregate of those tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the court.

Para 85: This passage was quoted in the Gujarat High court by D. A. Desai, J. speaking for the Gujarat High court in Soni Vrajlal V/s. Soni Jadavji as mentioned before. It appears that in giving directions on 16.02.1984, this court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sec. 6 and 7 of the 1952 Act and the binding nature of the larger bench decision in Anwar Ali Sarkar case which was not adverted to by this court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae. We must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis.

Para 107: It is time to sound a note of caution. This court under its Rules of Business ordinarily sits in divisions and not as a whole one. Each bench, whether small or large, exercises the powers vested in the court and decisions rendered by the benches irrespective of their size are considered as decisions of the court. The practice has developed that a larger bench is entitled to overrule the decision of a smaller bench notwithstanding the fact that each of the decisions is that of the court. That principle, however, would not apply in the present situation and since we are sitting as a bench of Seven we are not entitled to reverse the decision of the Constitution bench, Overruling when made by a larger bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger bench. In fact, if it is a case of exercise of inherent powers to rectify a mistake it was open even to a Five Judge bench to do that and it did not require a bench larger than the Constitution bench for that purpose.

Para 140: It is true that the highest court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that "Life of law is not logic; it has been experience". But it is equally true as Cardozo said: "But Holmes did not tell us that logic is to be ignored when experience is silent." Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even-handedness in the administration of justice by courts. It would be gross injustice, says an author, (Miller -"Data of Jurisprudence") to decide alternate cases on opposite principles. The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review - and the limitations on the power - under Art. 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the court either. Inherent powers do not confer, or constitute a source of, jurisdiction. They are to be exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Art. 137; nowhere else. This appears to me both good sense and good law.


Para 190: I have given careful thought to these contentions. The appellant's counsel has relied to a considerable extent on the maxim "actus curiae neminem gravabit" for contending that it is not only within the power, but a duty as well, of this court to correct its own mistakes in order to see that no party is prejudiced by a mistake of the court. I am not persuaded that the earlier decision could be reviewed on the application of the said maxim. I share the view of my learned brother Venkatachaliah, J. that this maxim has very limited application and that it cannot be availed of to correct or review specific conclusions arrived at in a judicial decision. My brother Venkatachaliah, J. has further taken the view that this court cannot exercise any inherent powers for setting right any injustice that may have been caused as a result of an earlier order of the court. While alive to the consideration that "the highest court in the land should not, by technicalities of procedure, forge fetters on its own feet and disable itself in cases of serious miscarriages of justice", he has, nevertheless, come to the conclusion that "the remedy of the appellant, if any, is by recourse to Art. 137 and nowhere else". It is at this point that I would record a dissent from his opinion. In my view, the decisions cited do indicate that situations can and do arise where this court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order, this court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done. Where a mistake is committed by a subordinate court or a High court, there are ample powers in this court to remedy the situation. But where the mistake is in an earlier order of this court, there is no way of having it corrected except by approaching this court. Sometimes, the remedy sought can be brought within the four corners of the procedural law in which event there can be no hurdle in the way of achieving the desired result. But the mere fact that, for some reason, the conventional remedies are not available should not, in my view, render this court powerless to give relief. As pointed out by Lord Diplock in Isaacs V/s. Robertson it may not be possible or prudent to lay down a comprehensive list of defects that will attract the ex debito justitiae relief. Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable injustice is shown to have resulted. Such a power can be traced either to Art. 142 of the Constitution or to the powers inherent in this court as the apex court and the guardian of the Constitution.

Para 191: It is, however, indisputable that such power has to be exercised in the "rarest of rare" cases. As rightly pointed out by Shri Jethmalani, there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this court but may also lead to chaotic consequences. Nothing should be done to create an impression that this court can be easily persuaded to alter its views on any matter and that a larger bench of the court will not only be able to reverse the precedential effect of an earlier ruling but may also be inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case. In Bengal Immunity Company Limited V/s. State of Bihar this court held that it had the power, in appropriate cases, to reconsider a previous decision given by it. While concurring in this conclusion. Venkatarama Ayyar, J. sounded a note of warning of consequences which is more germane in the present context:


The question then arises as to the principles on which and the limits within which this power should be exercised. It is of course not possible to enumerate them exhaustively, nor is it even desirable that they should be crystallised into rigid and inflexible rules. But one principle stands out prominently above the rest, and that is that in general, there should be finality in the decisions of the highest courts in the land, and that is for the benefit and protection of the public. In this connection, it is necessary to bear in mind that next to legislative enactments, it is decisions of courts that form the most important source of law. It is on the faith of decisions that rights are acquired and obligations incurred, and States and subjects alike shape their course of action. It must greatly impair the value of the decisions of this court, if the notion came to be entertained that there was nothing certain or final about them, which must be the consequence if the points decided therein came to be reconsidered on the merits every time they were raised. It should be noted that though the Privy council has repeatedly declared that it has the power to reconsider its decisions, in fact, no instance has been quoted in which it did actually reverse its previous decision except in ecclesiastical cases. If that is the correct position, then the power to reconsider is one which should be exercised very sparingly and only in exceptional circumstances, such as when a material provision of law had been overlooked, or where a fundamental assumption on which the decision is based turns out to be mistaken. In the present case, it is not suggested that in deciding the question of law as they did in State of Bombay V/s. United Motors (India) Ltd the learned Judges ignored any material provisions of law, or were under any misapprehension as to a matter fundamental to the decision. The arguments for the appellant before us, were in fact only a repetition of the very contentions which were urged before the learned Judges and negatived by them. The question then resolves itself to this. Can we differ from a previous decision of this court because a view contrary to the one taken therein appears to be preferable? I would unhesitatingly answer it in the negative, not because the view previously taken must necessarily be infallible but because it is important in public interest that the law declared should be certain and final rather than that it should be declared in one sense or the other. That, I conceive, in the reason behind Art. 141. There are questions of law on which it is not possible to avoid difference of opinion, and the present case is itself a signal example of it. The object of Art. 141 is that the decisions of this court on these questions should settle the controversy, and that they should be followed as law by all the courts, and if they are allowed to be reopened because a different view appears to be the better one, then the very purpose with which Art. 141 has been enacted will be defeated, and the prospect will have been opened of litigants subjecting our decisions to a continuous process of attack before successive benches in the hope that with changes in the personnel of the court which time must inevitably bring, a different view might find acceptance. I can imagine nothing more damaging to the prestige of this court or to the value of its pronouncements. In James V/s. Commonwealth, it was observed that a question settled by a previous decision should not be allowed to be reopened "upon a mere suggestion that some or all of the members of the later court might arrive at a different conclusion if the matter was res integra. Otherwise, there would be grave danger of want of continuity in the interpretation of the law" (per Griffiths, C.J. at p. 58). It is for this reason that Art. 141 invests decisions of this court with special authority, but the weight of that authority can only be what we ourselves give to it.


2004 (7) SCC 558

20 In Salauddin's case (supra) also this Court observed that the regular Court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and accused seeking remedy under Section 439 must ensure that it would be lawful for the Court to deal with the application. Unless the applicant is in custody his making application only under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. The view regarding extension of time to "move" the higher Court as culled out from the decision in K.L. Verma's case (supra) shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State through S.P New Delhi V/s. Ratan Lal Arora (2004) 4 SCC 590) it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of.

21 "Incuria" literally means "carelessness". In practice per incur/am is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Art. 141 of the Constitution of India, 1950 (in short the "Constitution') which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. and another V/s. Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139). To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.



AIR 1979 SC 1384

22 With greatest respect, the majority decision in Rajendra Prasad's case (AIR 1979 SC 916) (supra) does not lay down any legal principle of general applicability. A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less 'law declared' within the meaning of Art. 141 of the Constitution so as to bind all Courts within the territory of India. According to the well-settled theory of precedents every decision contains three basic ingredients:
(i) 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;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) Judgement based on the combined effect of (i) and (ii) above.

For the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element is the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the Judgement that estops the parties from reopening the dispute. However, for the purposes of the doctrine of precedents, ingredient No. (ii) is the vital element in the decision.

This indeed is the ratio decidendi. It is not every thing said by a Judge when giving Judgement 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.

In the leading case of Qualcast (Wolverhampton) Ltd. V/s. Haynes 1959 AC 743 it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The Judgement is not binding (except directly on the parties themselves, nor are the findings of facts. This means that even where the direct facts on an earlier case appear to be identical to those of the case before the Court, the Judge is not bound to draw the same inference as drawn in the earlier case.

23 One would find that in the decision in Rajendra Prasad's case (AIR 1979 SC 916), there are no ratione decidendi, much less any ratio decidendi.


AIR 2003 SC 2661

11 Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Morton (1951 AC 737 at p. 761), Lord Mac Dermot observed :

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."

12 In Home Office V/s. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech........is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in Shepherd Homes Ltd. V/s. Sandham (No. 2) ((1971) 1 WLR 1062) observed : "One must not, of course, construe even a reserved Judgement of Russell, L. J. as if it were an Act of Parliament." In her rington V/s. British Railways Board (1972 (2) WLR 537) Lord Morris said :
"There is always peril in treating the words of a speech or Judgement as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

13 Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

14 The following words of Lord Denning in the matter of applying precedents have become locus classicus :

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
xxx xxx xxx xxx xxx

"Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.


Binding Precedents create “Issue Estoppel”

Binding Precedents and unambiguous statutory provisions create issue estoppel. Any party is precluded from arguing contrary to what the law is and what the law is laid down. 

In a given case, what a party can only argue is non applicability of statutory provision or the non applicability of precedent itself, to the facts of the case at hand.

If the party is not disputing the application of the statutory provision or the application of precedent, to the facts of the case, then he cannot be heard on the said issue.

When the material facts of the case are not in dispute, then, by applying binding Precedents and unambiguous statutory provisions may result in immediate and easy adjudication of litigation.

Nevertheless, High Courts and SC are always at liberty to deviate from what the law is laid down by themselves, on the grounds of (a) "law being laid down on the erroneous view of law" or (b) "law being laid down over the ignorance of relevant statutory provision or ignorance of earlier binding judgment", or (c) "changed circumstances" and this is how the development of law takes place.

Not all precedents are binding precedents. In the settings of Rule of law, the lower Courts are bound by the law laid down by HCs and SC. Similarly, High Courts are bound by the law laid down by the Apex Court. Equally, a single Bench of the High Court is bound by the decision of the Division Bench and Division Bench is Bound by the decision of the full Bench of three judges. Similarly, Division Bench of the SC is bound by the decisions of the Three judges Bench and three judges Bench is bound by the Constitution Bench Rulings. [(2002) 4 SCC 578; (2008) 10 SCC 1]


Binding nature of Precedents


AIR 2013 SC 1921

31 Registrar/Joint Registrar is bound to follow the Judicial Precedents. Ratio decidendi has the force of law and is binding on all statutory authorities when they deal with similar issues. The Madhya Pradesh High Court in several judgments has explained the scope of the second proviso to Section 53(1) of the Act. Reference may be made to the judgments in Radheshyam Sharma V/s. Govt. of M.P. through C.K. Jaiswal and Ors. 1972 MPLJ 796, Board of Directors of Shri Ganesh Sahakari Vipnan (Marketing) Sanstha Maryadit and Another V/s. Deputy Registrar, Co-operative Societies, Khargone and Others, 1982 MPLJ 46 and Sitaram V/s. Registrar of Co-operative Societies and another 1986 MPLJ 567.

32 We fail to see why the Joint Registrar has overlooked those binding judicial precedents and the ratio decidendi. Judicial rulings and the principles are meant to be followed by the statutory authorities while deciding similar issues based on the legal principles settled by judicial rulings. Joint Registrar, while passing the impugned order, has overlooked those binding judicial precedents.

33 We fail to notice why the State Government, Department of Co- operative Societies has taken so much interest in this litigation. Joint Registrar in his letter dated 19.8.2009 to RBI stated that in the case of District Co-operative Bank, the powers under Section 53(2) of the Act are vested with Regional Joint Registrar and the notice issued by the Joint Registrar is not meant for the opinion of the State Government. Assuming, the State Government has powers under Section 49-C of the Act, no report has been forwarded by the Registrar to the State Government and no direction have been issued by the State Government with regard to the supersession of the Board. Sorry so note that the State Government has spent huge public money by litigating this matter even up to this Court, that too, without following the binding precedents of the Madhya Pradesh High Court on the scope of the second proviso to Section 53(1) of the Act.


AIR 2000 SC 594

12 At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier Judgement of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the Judgement of the earlier Bench but knowingly it proceeded to disagree with the said Judgement against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce Judgement contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur V/s. Ratilal Motilal Patel, (1968) 1 SCR 455 while dealing with a case in which a Judge of the High Court had failed to follow the earlier Judgement of a larger Bench of the same Court observed thus (para 11 of AIR) :-

"The Judgement of the Full Bench of the Gujarat High Court was biding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan V/s. Ram Chand, (AIR 1965 SC 1767).

"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."

13 We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier Judgement of a coordinate Bench and after noticing the Judgement of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier Judgement thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship.


2011 (13) SCC 180

19 In that view of the matter, when the law on the question at issue before the Tribunal had already been declared by this Court, the Tribunal should not have based its decisions on the clarification issued by the Board, which otherwise stood rescinded, on the specious ground that the said clarification issued by the Board was binding on the Deputy Commissioner as also on the Commissioner (Appeals). It is well settled proposition of law that Circulars and instructions issued by the Central Board of Excise and Customs are no doubt binding in law on the authorities under the respective Statutes but when this Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Courts or the Tribunal, as the case may be, to direct that the Board's Circular should be given effect to and not the view expressed in a decision of this Court or a High Court. [(See: Ratan Melting & Wire Industries (supra)].


AIR 1995 SC 1349

3 Learned counsel for the appellant while assailing the impugned order of the Tribunal submitted that it had laboured unnecessarily to get out of the binding judgement of this Court in Union of India V/s. Harnam Singh (1993) 2 SCC 162 : (1993 AIR(SCW) 1241) which was fully attracted to the facts and circumstances of the case. Learned counsel submitted that the date of birth which had been recorded in the service record of the respondent was 6.9.1930 and that till almost the eve of his retirement the respondent took no steps to have the recorded date of birth altered, even though opportunity had been granted to all literate employees of the Railways to have their date of birth altered, in case the same had been recorded wrongly, till 31.7.1993 and as such the Tribunal should have refused the alteration of the date of birth of the appellant, which had been claimed after an inordinate and unexplained long delay of more than quarter of a century.

4 In Union of India v, Harnam Singh (1993 AIR(SCW) 1241 at p. 1246) (supra) this Court opined that :
"A Government servant, after entering into service acquire the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief of grounds of laches or stale claims, is generally applied by the Courts and Tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age."

5 The Tribunal noticed the Judgement rendered by this court in Harnam Singh's case (1993 AIR(SCW) 1241) (supra) but curiously failed to follow it observing :

"Although the respondents neither quoted in the reply nor took the opportunity of bringing the case to our notice, we are bound to respect the ratio of the latest Supreme Court Judgement in Union of India V/s. Harnam Singh 1993 SCC (L and S) 375 : (1993 AIR(SCW) 1241), in the matter of date of birth and which overrules CAT Full Bench decision in Darshan Singh's case. That case which related to interpretation of Note No. 5 to FR-56(M) which was incorporated only in 1979 provided for request to be made for correction of date of birth within five years from the date of entry into service. The Hon ble Supreme Court held that in case of Government servants who entered service prior to 1979, it will be appropriate and in tune with harmonious construction to be held that they may seek the correction of date of birth after 1979, but in any event not later then 5 years after coming into force of the amendment in 1979. The Supreme Court also observed that Darshan Singh's case was distinguished by the fact that Shri Darshan Singh had not been shown the service book even once during his entire service. The Supreme Court also referred to the General rule that in the absence of date of birth the general principle of refusing relief of the ground of laches and stale claim is generally applied by the Courts and Tribunals.

We are bound by Supreme Court's decision in Harnamsingh's case but in view of the
special features of the instant case, we hold that we are required to consider the case on merits."

The approach of the Tribunal is patently objectionable and does not commend to us. It attempted to circumvent the law laid down by this Court on untenable reasons by stating that "we are required to consider the case on merits" without in fact so considering. The law laid down by this Court is binding on all courts and tribunals. Indeed, the law as declared by this Court has to be applied to the facts of a given case and not applied mechanically but we find that in the present case the facts were so eloquent that no scope was available with the Tribunal to get over the opinion expressed by this Court in Harnamsingh's case (1993 AIR(SCW) 1241) (supra) and on the facts as established on the record the Tribunal had no option but to refuse relief to the respondent.



AIR 1984 SC 892

6 The direction of the appellate court is certainly, binding on the court is subordinate thereto. That apart, in view of the provisions of Art. 141 of the Constitution, all courts in India are bound to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants that appellate directions should be taken as binding and followed. It is appropriate to usefully recall certain observations of the House of Lords in Broome V/s. Cassell & Co. (1972) 1 All ER 801. Therein Lord Hailsham, L. C. observed :
"The fact is, and I hope it will never be necessary to say so again, that in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers."

Lord Reid added :
"It seems to me obvious that the Court of Appeal failed to understand Lord Devlin's speech but whether they did or not, I would have expected them to know that they had no power to give any such direction and to realise the impossible position in which they were seeking to put those judges in advising or directing them to disregard a decision of this House."

Lord Diplock observed at p. 874 of the Reports :
"It is inevitable in a hierarchical system of courts that there are decisions of the Supreme Appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal, I sometimes thought the House of Lords was wrong in overruling me. Ever since that time there have been occasions, of which the instant appeal is one, when alone or in company, I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and, if that last word, once spoken, is loyally accepted."

AIR 2012 SC 2413

27 Now, let us examine the adverse consequences of non-adherence to the prescribed schedules. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations.


2008 (14) SCC 171

39 As stated earlier, the decision was rendered in appeal by the Income Tax Appellate Tribunal, Rajkot. Miscellaneous Application came to be filed by the assessee under sub- sec. (2) of Sec. 254 of the Act stating therein that a decision of the 'Jurisdictional Court', i.e. the High Court of Gujarat in Hiralal Bhagwati was not brought to the notice of the Tribunal and thus there was a "mistake apparent from record" which required rectification.

40 The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified u/s. 254(2).


In the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court have held that the Public authorities / persons may be held guilty of contempt of the Court, if, in the regular discharge of their duties, they knowingly disregard the law laid down by the said Court.

It is a case where, despite being specifically brought to the knowledge of the law being laid down by the Bombay High Court, the Public officer acted in breach of the law laid down; and the High Court, in the Writ jurisdiction, initiated Contempt proceedings against the said officer.

The Court held that –
(a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;

(b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;

(c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971.


===================================================


Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.

Law Referencer: https://www.litigationplatform.com/


Thank you.








Comments

Popular posts from this blog

The Commercial Courts / Suits - Pleadings and Procedure

The Commercial Courts, Act, 2015 – A broad framework In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, The Commercial Courts, Act, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions. By virtue of recent Amendments, the limit of Rs.1.00 crore has been reduced to Rs.3.00 Lakhs; and accordingly claims relating to commercial disputes involving Rs.3.00 Lakhs could now be maintainable under this special regime.  And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A and XV-A are inserted, apart from new Order XI, Sections 35 for costs, Verification of Plea

Leading Evidence during trial

1.       In case where the accused refused to plead guilty of the offence to which he is charged with, and claims to be tried, the Court calls upon the Prosecution / Complainant to lead all the evidences he has in support of his case. 2.       In criminal trial, the evidence are required to be led by the complainant and / or their witnesses by stepping into the witness box and illustrating / demonstrating to what they have witnessed. The Complainant is to examine before the Court, himself, and all other witnesses, who are “witness” to the crime, which is alleged to have been committed by the accused named in the complaint. This examination of himself and other prosecution witnesses is called “Examination – in – Chief. 3.       Giving evidence of facts is critical to any trial, be it civil trial or criminal trial. And therefore, it becomes imperative to understand the dynamics of evidence in legal sense. To put it simply, leading / giving evidence means, proving the exis

Form II under Rule 6 of Rules, 2006, framed under the impugned Act

Impugned Provision / other anomaly Breach of Section / Article FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the impugned Act Section 3 – Explanation II; Section 18, 19, 20, 22 and 23 of the impugned Act. Principles of natural justice. FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)     To The Court of Magistrate .................................... .................................... .................................... .................................... Application under section ........................ of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)            SHOWETH: That the application under section.................of Protection of Women from Domestic Violence Act, 2005 is being filed along with a copy of Domestic Incident Report by the: