A brilliant proposition
of law, of great public importance, in the judgment of the Bombay High Court,
shared by Advocate Shyam Narvekar…
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.
I further say that,
Similarly, by virtue of Article 141 of Constitution of India, the “Law
declared by the Supreme Court”, in its judgments, is binding on all the public
authorities / persons in India.
This is what we call it Stare decisis, a Latin phrase which means
“to stand by decided cases”. Stare decisis embodies an important social policy
of certainty and continuity.
In order to understand and appreciate the binding force of a
decision of (HCs and SC), it is necessary to aptly cull out the law laid down
in the given judgment; and it is not that anything and everything which is
spoken in the judgment is regarded as law being laid down.
In order to understand and appreciate as
what law has been laid down in the judgment, it is always necessary to see what
was the point which had to be decided by the Court. In Sanjay Singh versus U P
Public Service Commission – (2007) 3 SCC 720 – the SC held that broadly
speaking every judgment of a Superior court has three segments namely -
a)
The
facts and the point at issue;
b)
The
reason for the decision;
c)
The
decision.
The Apex court in the case of Govt of AP versus A P Jaiswal
observed – The doctrine of binding precedent has the merit of promoting
certainty and consistency in judicial decisions and enables organic development
of law, besides providing assurance to the individuals as to the consequence of
transaction forming part of his daily affairs. (2001) 1 SCC 748.
The practice of following precedents enables citizens to plan
their conduct in the expectation that past decisions will be honoured in the
future.
Some Notable observations of the Apex Court in
respect of judicial precedents:
In
Mamleshwar Prasad V/s. Kanhaiya Lal (Dead) through L.Rs., (1975) 2 SCC 232 has
stated thus :-
"7. Certainty of the law,
consistency of rulings and comity of Courts - all flowering from the same
principle - converge to the conclusion that a decision once rendered must later
bind like cases.
Siddharam
Satlingappa Mhetre Versus State of Maharashtra and Others (2011) 1 SCC 694 – Law of
PRECEDENTS - 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.
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."
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 precdents, 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)
Exceptions to the doctrine
of Precedents: Judgment given per Incuriam / sub silento
Doctrine of per incuriam:
"per incuriam" are those decisions given in ignorance or
forgetfulness of some statutory provision or authority binding on Court
concerned, or 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 case some part of decision or some step in reasoning on which it
is based, is found, on that account to be demonstrably wrong.
The Apex Court in the case of State Of Uttar Pradesh Versus Synthetics
And Chemicals Limited1991 (4) SCC 139 : 1991 (2)
Scale 110, inter alia, observed to say that –
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.
The Apex Court in the case of Narmada Bachao Andolan Versus State Of
Madhya Pradesh, 2011 (7) SCC 639 : AIR 2011 SC 1989 (Three Judges Bench), inter
alia, observed to say that –
Para 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).
Para 61 Thus, "per
incuriam" are those decisions given in ignorance or forgetfulness of some
statutory provision or authority binding on the Court concerned, or a statement
of law caused by inadvertence or conclusion that has been arrived at without
application of mind or proceeded without any reason so that in such a case some
part of the decision or some step in the reasoning on which it is based, is
found, on that account to be demonstrably wrong.
The Apex Court in the case of M.P.Rural Road Development Authority
Versus M/s.L.G.Chaudhary Engineers & Cont., 2012 (3) SCC 495 : AIR 2012 SC
1228, inter alia, observed to say that –
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.
"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."
The Apex Court in the case of V.Kishan Rao Versus Nikhil Super
Speciality Hospital, 2010 (5) SCC 513 : 2010 (4) Scale 662, inter alia,
observed to say that –
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.
The Apex Court in the case of Subhash Chandra Versus Delhi Subordinate
Services Selection Board, 2010 (1) GLH(NOC) 1 : 2009 (15) SCC 458, inter alia,
observed to say that –
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."
The Apex Court in the case of Sunita Devi Versus State Of Bihar, 2005
(1) SCC 608 : AIR 2005 SC 498, inter alia, observed to say that –
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.
The Apex Court in the case of Fuerst Day Lawson Versus Jindal Exports
Limited, 2001 (6) SCC 356 : AIR 2001 SC 2293, inter alia, observed to say that
–
Para 18 In Mamleshwar Prasad
V/s. Kanhaiya Lal (Dead) through L.Rs., (1975) 2 SCC 232 reflecting on the
principle of Judgement per incuriam, in paras 7 and 8, this Court has stated
thus :-
"7. Certainty of the law,
consistency of rulings and comity of Courts - all flowering from the same
principle - converge to the conclusion that a decision once rendered must later
bind like cases. We do not intend to detract from the rule that, in exceptional
instances, where by obvious inadvertence or oversight a Judgement fails to
notice a plain statutory provision or obligatory authority running counter to
the reasoning and result reached, it may not have the sway of binding
precedents. It should be a glaring case, an obtrusive omission. No such
situation presents itself here and we do not embark on the principle of
Judgement per incuriam.
(8) Finally it remains to be
noticed that a prior decision of this Court on identical facts and law binds
the Court on the same points in a later case. Here we have a decision
admittedly rendered on facts and law, indistinguishably identical, and that
ruling must bind."
Para 19 This Court in A. R.
Antulay V/s. R. S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531 : 1988 Cri LJ 1661)
in para 42 (of SCC) : (Para 44 of AIR Cri LJ) has quoted the observations of
Lord Goddard in Moore V/s. Hewitt, (1947) 2 All ER 270 and Penny V/s. Nicholas,
(1950) 2 All ER 89 to the following effect :-
"Per incuriam are those
decisions given in ignorance or forgetfulness of some inconsistent statutory
provision or of some authority binding on the Court concerned, so that in such
cases some part of the decision or some step in the reasoning on which it is
based, is found, on that account to be demonstrably wrong. . . . . . . . . . .
. . ."
Para 20 This Court in State
of Uttar Pradesh V/s. Synthetics & Chemicals Ltd. (1991) 4 SCC 139 in para
40 has observed thus :-
"40. 'Incuria' literally
means 'carelessness'. In practice per incuriam appears to mean per ignoratium.
English Courts have developed this principle in relaxation of the rule of stare
decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in
ignoratium of a statute or other binding authority'. (Young V/s. Bristol
Aeroplane Co. Ltd.)... ..."
Para 21 The two judgments
(1) Punjab Land Development and Reclamation Corporation Ltd., Chandigarh V/s.
President Officer, Labour Court, Chandigarh, (1990) 3 SCC 682 and (2) State of
Uttar Pradesh V/s. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 were cited
in support of the argument. Attention was drawn to paras 40, 41 and 43 in the
first Judgement and paras 39 and 40 in the second judgment. In these two
judgments no view contrary to the views expressed in the aforesaid judgments
touching the principle of Judgement per incuriam is taken.
The Apex Court in the case of Punjab Land Development And Reclamation
Corporation Limited, Chandigarh Versus Presiding Officer, Labour Court,
Chandigarh, 1990 (3) SCC 682 : 1990 (1) Scale 878 (Five Judges Bench), inter
alia, observed to say that –
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
"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.
The Apex Court in the case of State Of Uttar Pradesh Versus Synthetics
And Chemicals Limited, 1991 (4) SCC 139 : 1991 (2) Scale 110, inter alia,
observed to say that –
Para 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'.
The Apex Court in the case of Siddharam Satlingappa Mhetre...Appellant
Versus State of Maharashtra and Others...Respondent, (2011) 1 SCC 694, inter
alia, observed to say that –
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 -
The judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L.
Verma v. State, Adri Dharan Das v. State of West Bengal and Sunita Devi v.
State of Bihar are held per incuriam as this judgments have clearly ignored a
constitution bench judgment in Sibbias case. (Para : 135, 136 and 149)
".... 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."
"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."
"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."
"...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."
"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."
"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."
"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 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.
Some other useful citations:
1973 CrLJ 1106 (S.16 of the Contempt of the Courts Act,
1971)
AIR 1971 SC 1132 (S.16 of the Contempt of the Courts Act,
1971)
AIR 1972 SC 2466 (S.16 of the Contempt of the Courts Act,
1971)
AIR 1998 SC 1895, Para 38, 39 (S.16 of the Contempt of the
Courts Act, 1971)
(2004) 11 SCC 26 (Para 334, 335, 336, 313, 339, 343)
(2004) 4 SCC 79, 91 (Para 14)
(1995) 3 SCC 17 (Para 6)
(2004) 5 SCC 568 (Para 6, 7, 8)
(2008) 3 SCC 753 (Para 58, 59)
(1995) 6 SCC 614 (Para 17)
AIR 1968 SC 683, (Para 31, 9)
(1990) 3 SCC 684, Para 62 to 70, 79
(2004) 6 SCC 224, 229-230 (Para 10, 11)
(1996) 10 SCC 505 (Para 3);
(1984) 2 SCC 324, (Para 8)
(1970) 2 SCC 267.
COMPLIANCE WITH LAW LAID DOWN BY SC
(2011) 12 SCC 94;
(2011) 7 SCC 547;
(2010) 13 SCC 1;
(2011) 12 SCC 154;
(2011) 13 SCC 180.
(2010) 7 SCALE 428
2010 (6) Bom CR 538
(1995) 1 SCC 259 (Para 10) (Article 141 and Contempt of the
Court)
Article 141 – Precedent – binding nature of – AIR 2011 SC
421 – Para 16.
Article 141 – explained – AIR 2011 SC 3001 – Paras 14, 15,
20
Article 141 – Binding value of a precedent – AIR 2011 Cal
158 – Para 4
Article 141 – Article 226 – (2002) 4 SCC 638 – Paras 7, 15,
16, 17, 18.
(2003) 7 SCC 427, (Para 12) (SC Judgments cannot be
interpreted like a Statute))
(2004) 2 SCC 362, (Para 12) (Mode of interpreting judgments)
(2006) 7 SCC 735, (Para 8) (Mode of interpreting judgments)
(2003) 11 SCC 584,
(Para 10 to 12) There cannot be blind reliance on judgments.
(1992) 1 SCC 489 – a decision is precedent only if it
decides question of law
Sandeep Jalan
Advocate
Mumbai
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Comments
I really appreciate your effort and your research has brought several matters to my Knowledge. Thanks
Sandeep Kapatkar Advocate Pune