PER INCURIAM

Doctrine of ‘Per Incuriam’: Critical

Analysis based on Precedents*
◦ Meaning: According to the Black’s Law Dictionary (Fourth Edition, 1891) per incuriam means through

inadvertence. The word ‘incuria’ literally means ‘carelessness’.

◦ 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.
◦ ‘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.

◦ The ‘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 nonreference of earlier

decisions in the judgment does not indicate non-consideration of those cases in the judgment.
When a decision/judgment can be stated
to be ‘per incuriam’?
◦ 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 coequal or larger bench; or if the

decision of a High Court is not in consonance with the views of the Supreme Court.

◦ It is a settled rule that if a decision has been given per incuriam the court can ignore it.
◦ In the case of, Buta Singh v. Union of India, 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 Kerala, 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.

◦ In the case of, Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour

Court (Chandigarh), 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 Ltd, 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.

◦ Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any

citation of authority is per incuriam.

Can a ‘per incuriam’ decision operate as
‘res judicata’?
◦ Per incuriam decisions are those decisions which do not state the law correctly and hence are not to be

followed.

◦ In the case of, Union of India v. Indian Railway SAS Staff Association , it was held that, ‘per incuriam’

decision does not operate as res judicata.

Can a ‘per incuriam’ decision operate as
a precedent?
◦ In the case of, Hyder Consulting (U.K.) Ltd. v. State of Orissa, 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 Sarma, 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 Andolan, 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 Maharashtra, 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 & Ors, 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., 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.

Doctrine of ‘per incuriam’ and Judicial
Discipline:
◦ In the case of, Jai Singh v. M.C.D., it was held that, judicial discipline and propriety demands that, there

should be consistency in the views as regards the decisions rendered by co-equal benches on the same issue;

however, subsequent bench is to follow the decision rendered by the earlier co-ordinate bench, except in

compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam.

◦ Further, in the case of, U.P. Power Corporation Ltd. v. Rajesh Kumar, it was held that, it is the duty of the

court to acknowledge the fact that, a judgment which erroneously appreciates or construes a binding

precedent is not per incuriam.

◦ It is important to take note of the ratio laid down in the case of, K.G. Derasari v. Union of India, in this

case the Supreme Court of India categorically observed that, if the tribunal has not looked into previous

decision of the Supreme Court which is the law of the land and by which it was bound, the remedy

available to the aggrieved person was to file an application for review.

◦ In the case of Chandra Prakash v. State of U.P., it was held that, in case a two-judge bench finds fault

with the decision rendered by a three-judge bench, then, in that case, the two-judge bench must restrain

itself from referring the matter to the Constitution Bench, as judicial discipline and propriety as also the

doctrine of binding precedent demands that a two-judge bench must follow the decision given by a three-

judge bench.
Citing per incuriam decisions at Bar:
◦ In the case of, State of Orissa v. Nalinikanta Muduli, the Supreme Court of India coming down heavily

on the members of the bar, took occasion to state that, advocates are officers of the court and they have a

bounden of duty to assist the court and not to mislead it;

◦ citing an over-ruled decision before a court without disclosing the fact that it has been over-ruled is a

matter of grave concern, and the falling standards of the advocates citing over-ruled decisions at bar has

become a dreadful reality, which needs to be curbed as early as possible.

 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.
Thank you