DOCTRINE OF PER INCURIAM
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
CODE OF CIVIL PROCEDURE
DOCTRINE OF “PER INCURIAM”
SUBMITTED TO: SUBMITTED BY:
DR. RAVINDER KUMAR KANUPRIYA CHAWLA
ENROLLMENT ID: 01216503517
BBA LLB, 5th SEMESTER
DOCTRINE OF PER INCURIAM
ABSTRACT
‘Per incuriam’ means ‘through want of care’; a decision of the court which is mistaken. The
‘per incuriam’ rule is strictly and correctly applicable to the ratio decidendi and not to obiter
dicta.
This research paper deals with the following 5 (five) aspects, regards been had to the doctrine
of "per incuriam":
1. When a decision/judgment can be stated to be ‘per incuriam’? 2. Can a ‘per incuriam’
decision operate as ‘res judicata’? 3. Can a ‘per incuriam’ decision operate as a precedent? 4.
Issue of Judicial Discipline vis-à-vis per incurium 5. Remedies
DOCTRINE OF PER INCURIAM
INTRODUCTION
According to the Black’s Law Dictionary (Fourth Edition, 1891) per incuriam means through
inadvertence. The word ‘incuria’ literally means ‘carelessness’.1 The purport of the doctrine
of per incuriam is that, 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.2 ‘Per incuriam’
means ‘through want of care’; a decision of the court which is mistaken. A decision of the
court is not a binding precedent if given per incuriam, that is, without the Court’s attention
having been drawn to the relevant authorities or statutes.3The ‘per incuriam’ rule is strictly
and correctly applicable to the ratio decidendi and not to obiter dicta. An important caveat
that is required to be borne in mind at all times is that, the non- reference of earlier decisions
in the judgment does not indicate non-consideration of those cases in the judgment.
Per incuriam, literally translated as "through lack of care" is a device within the common
law system of judicial precedent. A finding of per incuriam means that a previous court
judgment has failed to pay attention to relevant statutory provision or precedents.
It is well conceived notion in judicial circle that “Delayed justice is denied justice” since
ages. But, wrong judgement without reliance on evidence/application of mind on record is
gross injustice. In most of the government cases which amounts to around 70% of total
pending cases in India across all forum. Most of the arguments in service related matters from
government side are unsupported by counter material facts on record as both the side has
same set of documents obtained under RTI Act, 2005.
In order to circumnavigate such preceding orders from higher forum or bench of co- equal
strength in coordinate branch the concept of doctrine of per incuriam came into picture, if any
similar matter is pending disposal in lower court. As per Black’s Law Dictionary (1891) per
incuriam means negligence. Any order rendered to per incuriam is same is found to be
1
State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139
2
Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Union of India v. Manik Lal Banerjee,
(2006) 9 SCC 643
3
P. Ramanatha Aiyar’s Concise Law Dictionary, Fifth Edition, Lexis Nexis Publication, p.937
DOCTRINE OF PER INCURIAM
delivered by ignoring the statutory rules which has statutory/constitutional effect,
misinterpretation, failed to recognize the material facts on record, superimposition of higher
forum orders by misconceiving the applicant as similarly placed, ignored larger bench /
higher forum orders in similar matters etc. The concept is applicable on ratio decidendi of the
order not on obiter dicta.
In practice it could be said to be “per ignorantium” meaning that the decision was arrived at
in ignorance of a binding authority that would have affected the court’s decision were it
aware of it. But in respect to the judicial office it would be disrespectful to say that the judge
in whose breast the law is said to reside was ignorant of the very law of which he is the
custodian. So we rather say it was per incuriam, i.e. through want of sufficient care
WHEN A DECISION/JUDGEMENT CAN BE STATED TO BE “PER
INCURIUM”
A decision/judgment can be per incuriam any provision in a statute, rule or regulation, which
was not brought to the notice of the court. A decision/judgment can also be per incuriam if it
is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-
equal or larger bench; or if the decision of a High Court is not in consonance with the views
of the Supreme Court.4 It is a settled rule that if a decision has been give per incuriam the
court can ignore it.5 In the case of, Buta Singh v. Union of India6, it was held that, when a
two-judges bench without noticing or ignoring the binding decision of a three-judges bench
renders a decision, then such a decision is per incuriam.
Similarly, in the case of K.H. Siraj v. High Court of Kerala7, it was held that, when a
decision is rendered by the High Court without having regard to the relevant line of decisions
rendered by the Supreme Court, then such a decision of the High Court is per incuriam.
4
Sundeep Kumar Bafna v. State of Maharashtra, Criminal Appeal No. 689 of 2014, Supreme Court of India,
Judgment delivered by: Vikramajit Sen, J.
5
Rattiram & Ors. v. State of M.P. (Through Inspector of Police), Criminal Appeal No. 223 of 2008, Supreme
Court of India
6
(1995) 5 SCC 284
7
(2006) 6 SCC 395
DOCTRINE OF PER INCURIAM
In the case of, Punjab Land Development & Reclamation Corporation Ltd. v. Presiding
Officer, Labour Court (Chandigarh)8, it was held that, the problem of judgment per
incuriam when it actually arises should present no difficulty as the Supreme Court of India
can lay down the law afresh, if two or more of its earlier judgments cannot stand together. It
is important to note that, the non-consideration of an irrelevant provision cannot make the
ratio of the decision per incuriam.
Lastly, in the case of, Fuerst Day Lawson Ltd. v. Jindal Exports Lt9, it was held that, unless
it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of
judgment per incuriam; it has to be shown that some part of the decision was based on a
reasoning which was demonstrably wrong, for applying the principle of per incuriam.
An order delivered without argument, without reference to the relevant provisions of the Act
and without any citation of authority is per incuriam.
Further, the conditions under which a certain decision/judgment of a court can be stated as
per incuriam are as follows:
In case of High Courts and Tribunals, if orders passed is proven to be in ignorance of
judgement given by Supreme Court in similar placed matters. (Hon’ble Supreme Court order
in the matter of Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangra and
others10 & K.H. Siraj Vs. High Court of Kerala11)
In case of Supreme Court, High Courts and Tribunals, if orders passed are proved to be in
ignorance of judgement given bench of co-equal / larger bench strength in coordinate branch.
(Hon’ble Supreme Court order in the matter of Subhash Chandra and Another v. Delhi
Subordinate Services Selection Board and Others12, Central Board of Dawoodi Bohra
8
(1990) 3 SCC 682
9
(1999) 3 SCC 176
10
(2001) 4 SCC 448
11
(2006) 6 SCC 395
12
(2009) 15 SCC 458
DOCTRINE OF PER INCURIAM
Community v. State of Maharashtra13 & Buta Singh Vs. Union of India14)
In case of Supreme Court ,if bench is of contrary view based on evidence and treats existing
orders by bench of co-equal strength as obstacles to deliver justice to petitioners (Hon’ble
Supreme Court order in the matter of Punjab Land Development & Reclamation
Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh)15)
If judgement is found to be delivered in ignorance of statutory rules and regulations
pertaining to subject matter or by playing fraud and same is provably based on material fact
on record. (Hon’ble Supreme Court order in the matter of Fuerst Day Lawson Ltd. Vs. Jindal
Exports Ltd)
13
(2005) 2 SCC 673
14
(1995) 5 SCC 284
15
(1990) 3 SCC 682
DOCTRINE OF PER INCURIAM
CAN A PER INCURIAM DECISION OPERATE AS A PRECEDENT
5
In the case of, Hyder Consulting (U.K.) Ltd. v. State of Orissa16 , it was held that, a prior
decision of the Supreme 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.
In the case of, State of Assam v. Ripa Sarma17, it was held that, a judgment rendered in
ignorance of earlier judgments of benches of co-equal strength would render the same per
incuriam, and thus, such a judgment will not be elevated to the status of precedent. Further, in
the case of, State of M.P. v. Narmada Bachao Andolan18, it was held that, the courts have
developed the principle of per incuriam 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. Moreover, in the case of, Central Board of Dawoodi Bohra Community v.
State of Maharashtra19, it was held that, a ruling making a specific reference to an earlier
binding precedent may or may not be correct but it cannot be said to be per incuriam.
Lastly, in the case of, Chauharya Tripathi & Ors v. L.I.C. of India & Ors20, it was held that,
there can be no cavil over the proposition that once a judgment has been declared per
incuriam, it does not have the precedential value. However, it is worth noting that, in the case
of, Mukesh K. Tripathi v. L.I.C.21 it was held that, even though a case may not have been
expressly over-ruled but once it has been held that it has been rendered per incuriam, it
cannot be said that it lays down good law.
16
M.C.D. v. Gurnam Kaur, (1989) 1 SCC 101
17
(2013) 3 SCC 63
18
(2011) 7 SCC 639
19
(2005) 2 SCC 673
20
Civil Appeal Nos. 5690-5691 of 2010, Supreme Court of India, Judgment dated: 11.03.2015
21
(2004) 8 SCC 387
DOCTRINE OF PER INCURIAM
The significance of a judgment having been decided per incuriam is that it does not then have
to be followed as precedent by a lower court. Ordinarily, in the common law, lower courts
while hearing similar cases must follow the rationes of a judgment thereafter. A lower court
is free, however, to depart from an earlier judgment of a superior court where that earlier
judgment was decided per incuriam. Also the said doctrine is an exception to article 141 of
Constitution of India which embodies the doctrine of precedents as a matter of law.
Sir John Salmond in his 'Treatise on jurisprudence' has aptly stated the circumstances under
which a precedent can be treated as 'per incuriam'. It is stated that a precedent is not binding
if it was rendered in ignorance of a statute or a rule having the force of statute or delegated
legislation.
C.C.K. Alien in 'Law in the Making' (Page No. 246) analyzed the concept of 'per incuriam'.
According to him, 'Incuria' means literally 'carelessness' which apparently is considered less
uncomplimentary than ignorantia; but in practice 'per incuriam' applies to mean 'per
ignorantiam'. It would almost seem that 'ignorantia juris neminem excusat' – except a Court
of law, ignorance of what? Ignorance of a statute, or of a rule having statutory effect which
would have affected the decision if the court had been aware of it.
The rule applies even though the earlier court knew of the statutes in question but it did not
refer to and had not present to its mind, the precise terms of the statute. Similarly a court may
know of the existence of a statute and yet not appreciate its relevance to the matter in hand,
such a mistake is again such 'incuria' as to vitiate the decision. Even a lower court can
impugn a precedent on such grounds.
INTERNATIONAL VIEW
The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379 stated that 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.
Further, Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 it was
observed that: "Where a case or statute had not been brought to the court's attention and the court gave
DOCTRINE OF PER INCURIAM
the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision
rendered in per incuriam."
ISSUE OF JUDCIAL DISCIPLINE VIS-À-VIS PER INCURIAM
However, one must keep in mind that lower courts cannot render the judgments given by
Hon’ble Supreme Court of India as per incuriam & same will lead to violation of Art-141 of
Constitution of India, 1949 as stated in Hon’ble Supreme Court in the matter of South
Central Railway Employees Co-Op. Credit Society Employees Union Vs. Yashodabai and
others22 as mentioned below;
“17: If the view taken by the High Court is accepted, in our opinion, there would be total
chaos in this country because in that case there would be no finality to any order passed by
this Court. When a higher court has rendered a particular decision, a subordinate or lower
court must follow the said decision unless it is distinguished or overruled or set aside. The
High Court had considered several provisions, which, in its opinion, had not been considered
or argued before this Court when C.A. No.4343 of 1988 was decided. If the litigants or
lawyers are permitted to argue that something what was correct, but was not argued earlier
before the higher court and on that ground if the courts below are permitted to take a different
view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will
have to be re-written and, in our opinion, that cannot be done. Moreover, by not following the
law laid down by this Court, the High Court or the Subordinate Courts would also be
violating the provisions of Article 141 of the Constitution of India”.
Detailed analysis of foresaid reveals that bench followed apex court orders in the matter of
Suganthi Suresh Kumar v. Jagdeeshan23 in which bench held that;
“It is impermissible for the High Court to overrule the decision of the apex Court on the
ground that Supreme Court laid down the legal position without considering any other point.
It is not only a matter of discipline for the High Courts in India, it is the mandate of the
Constitution as provided in Article 141 that the law declared by the Supreme Court shall be
22
Civil Appeal 7130/2012
23
2002(2) SCC 420
DOCTRINE OF PER INCURIAM
binding on all courts within the territory of India. It was pointed out by this Court in Anil
Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the
correctness of the decision of the Supreme Court even though the point sought before the
High Court was not considered by the Supreme Court.”
Hence, in order to maintain judicial discipline across all forums, consistency in law of land
and reduce frivolous litigation by showing minor difference in matter. It is necessary for
lower courts to follow the concept of binding precedence & not render judgements given by
Hon’ble Supreme Court as per incuriam.
It is noteworthy to mention that Hon’ble Supreme Court in the matter of Union of India Vs.
Indian Railway SAS Staff Association24 clearly held that per-incuriam orders cannot operate
as res judicata. The situation creates an exception in doctrine of stare decisis.
Several Hon’ble Supreme Court orders has been pursued to determine whether court orders
which were rendered per incuriam enjoys the status of being treated as binding precedence on
similar matter. Hon’ble apex court in the matter of Hyder Consulting (U.K.) Ltd. v. State of
Orissa25 clearly held that doctrine of per incuriam is applicable when the orders passed by
bench of co-equal strength of coordinate bench in similar matter is found to ignorant of
statutory rules & regulations of the subject matter concerned. If the judgement is obtained by
ignoring earlier judgements given by equally placed bench in similar matters, such orders
equally qualifies to be treated as per incuriam as reflected by Hon’ble Apex Court in the
matter of State of Assam Vs. Ripa Sarma26 and State of M.P. Vs. Narmada Bachao
Andolan27.
24
(1995) Supp (3) SCC 600
25
(2015) 2 SCC 189
26
(2013) 3 SCC 63
27
(2011) 7 SCC 639
DOCTRINE OF PER INCURIAM
REMEDIES
Applicant has to prove that respondent has committed fraud to obtain favourable orders. In
such cases, courts are not powerless, rather they are enshrined with inherent powers i.e. Sec-
151 of CPC to recall the existing orders (Hon’ble Supreme Court in the matter of Indian
Bank Vs. M/s Satyam Fibres (India) Pvt. Ltd.28)
If based on newly obtained material fact on record, it is easily provable that ratios of
judgement are contrary to that of reflected by evidence. In such cases, courts can recall their
orders (Hon’ble Supreme Court in the matter of United India Insurance Co. Ltd. Vs.
Rajendra Singh and Ors.29)
Hon’ble Supreme Court in the matter of K.G. Derasari Vs. Union of India30 held that if the
lower court has overlooked the ratios of apex court in similar matter then aggrieved applicant
has liberty to file review in lower forum.
ARE PER INCURIAM AND RES JUDICATA THE SAME
The Latin maxim res judicata means, a thing that has already been judged. This doctrine
implies that once a final judgment has been announced in a lawsuit, the subsequent judges
who are confronted with a suit that is substantially identical, that is the subject matter and the
parties are the same, the court would apply the Res Judicata doctrine in order to preserve the
effect and finalty of the first judgment.
Per incuriam decisions, on the other hand are such judgements in which the relevant law was
not properly presented before the court and hence is not supposed to be followed. In the case
of Union of India v. Indian Railway SAS Staff Association, it was held by the Supreme
Court that, ‘per incuriam’ decision does not operate as res judicata.
28
AIR 1996 SC 2592
29
AIR 2000 SC 1165
30
(2001) 10 SCC 496
DOCTRINE OF PER INCURIAM
SUB SILENTO AND PER INCURIAM
The decisions 'sub silentio' and 'per incuriam' are not binding. Sub silentio decisions flow when the
particular point of law involved in the decision is not perceived by the court of present to its mind. A
point not argued or considered by court is said to pass sub silentio.
CONCLUSION
From the above analysis we draw the following conclusion:
a. Principle of res judicata does not apply to decisions given per incuriam;
b. Decisions given per incuriam do not have any precedential value;
c. If ‘Case X’ did not consider a binding decision i.e. ‘Case Y’, but did consider another
case i.e. ‘Case Z’, which had considered the said binding precedent i.e. ‘Case Y’, then
in such a case, the view taken in ‘Case X’ cannot be said to be per incuriam;
d. When no relevant provision of the Constitution or any statute is left out for
consideration as regards a judgment delivered, then, in such a case, the judgment
delivered, cannot be termed as per incuriam
