Understanding the Doctrine of Precedent and Its Exceptions in Indian Law

 The Indian legal system, rooted in common law tradition, places significant emphasis on the doctrine of precedent. This principle ensures consistency, stability, and predictability in the administration of justice. However, not all judicial decisions carry the same binding authority. Some exceptions—such as precedents decided sub silentio or per incuriam—limit the otherwise strict application of this doctrine. This article explores the doctrine of precedent, its types, and the key exceptions recognized by Indian courts.

The Doctrine of Precedent: Foundation of Judicial Consistency

Print Page

What is difference between the doctrine Per Incuriam and Sub Silentio?

 The foundational basis for the exceptions of per incuriam and sub-silentio is to balance consistency and judicial discipline, with the flexibility of revising blatantly wrong decisions. The thin line difference between the two is that where a per incuriam judgment is passed in clear violation of a legislation, rule or a judgment of a superior court/larger bench; a judgment passed sub-silentio is essentially the one passed "without consideration/without discussion" on a particular legal point, which ought to have been considered/discussed for the decision.

Print Page

Whether Judgment delivered by the court without hearing another side/ exparte is binding as precedent?

Also, in Municipal Corpn. of Delhi v. Gurnam Kaur,

(1989) 1 SCC 101 at 110, this Court stated:

“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 [Writ Petitions Nos.

981-82 of 1984] 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.”

(Emphasis Supplied)

It is clear, therefore, that where a matter is not argued at

all by the respondent, and the judgment is one of

reversal, it would be hazardous to state that the law can

be declared on an ex parte appraisal of the facts and the

law, as demonstrated before the Court by the appellant’s

counsel alone. That apart, where there is a detailed

judgment of the High Court dealing with several

authorities, and it is reversed in a cryptic fashion without

dealing with any of them, the per incuriam doctrine kicks

in, and the judgment loses binding force, because of the

manner in which it deals with the proposition of law in

question. Also, the ratio decidendi of a judgment is the

principle of law adopted having regard to the line of

reasoning of the Judge which alone binds in future cases.

Such principle can only be laid down after a discussion of

the relevant provisions and the case law on the subject. If

only one side is heard and a judgment is reversed,

without any line of reasoning, and certain conclusions

alone are arrived at, without any reference to any case

law, it would be difficult to hold that such a judgment

would be binding upon us and that we would have to

follow it. In the circumstances, we are of the opinion that

the judgment in Yasangi Venkateswara Rao (supra)

cannot deter us in our task of laying down the law on the

subject. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 134 OF 2013

JAYANT VERMA Vs  UNION OF INDIA 

Author: R.F. NARIMAN, J.

Dated: February 16, 2018.

Citation: 2018(4) SCC 743

Print Page

Which case law is to be followed If two or more mutually irreconcilable decisions of the Supreme Court are cited?

A decision or 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 or 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 this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.{Para 15}
An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. {Para 16}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 689 of 2014 

Decided On: 27.03.2014

Sundeep Kumar Bafna  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Vikramajit Sen, JJ.

Citation: AIR 2014 SC 1745,MANU/SC/0239/2014

Print Page

Whether cryptic judgment will be treated as precedent?

 By a short judgment in Yasangi Venkateswara Rao (supra), this Court upset the elaborate judgment of the High Court thus:

7. We are unable to understand as to how the High Court could come to the conclusion that Parliament had no jurisdiction to enact Section 21-A. There can be no doubt that Section 21-A deals with the question of the rate of interest which can be charged by a banking company. Entry 45 of List I of the Seventh Schedule clearly empowers Parliament to legislate with regard to banking. The enactment of Section 21-A was clearly within the domain of Parliament. The said Section applies to all types of loans which are granted by a banking company, whether to an agriculturist or a non-agriculturist, and, therefore, reference by the High Court to Entry 30 of List II was of no consequence. In our opinion, the said Section 21-A had been validly enacted.

(at page 377)

At first blush, it appears that, though cryptic, the said paragraph does contain reasons for upsetting the High Court judgment. But, on a closer look, it becomes clear that there is no reasoning worth the name for so doing. Paragraph 7 is a series of conclusions put together without any clear reasoning in support. This is probably because only the learned Additional Solicitor General for the Appellant appeared before the Court and argued the case on behalf of the Appellant. The Respondent, though probably served, did not appear and consequently was not heard. It will also be noticed that, despite the fact that the judgment of the single Judge referred to a very large number of High Court, Federal Court, Privy Council and Supreme Court judgments, not a single judgment is adverted to in the cryptic paragraph 7 set out hereinabove. Can it be said that this judgment is a declaration of the law Under Article 141 of the Constitution, which as a matter of practice we cannot differ from being a bench of coordinate strength?

42. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), 'ratio decidendi' is described as follows:

The ratio decidendi of a case is any Rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.

(at page 72)

43. In Dalbir Singh v. State of Punjab MANU/SC/0099/1979 : (1979) 3 SCR 1059 at 1073-1074, a dissenting judgment of A.P. Sen, J. sets out what is the ratio decidendi of a judgment:

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) judgment based on the combined effect of (i) and (ii) above.

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. [R.J. Walker & M.G. Walker: The English Legal System. Butterworths, 1972, 3rd Edn., pp. 123-24] It is not everything said by a judge when giving judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes [LR 1959 AC 7 43: (1959) 2 All ER 38] 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 judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of 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.

Similarly, this Court in Som Prakash Rekhi v. Union of India MANU/SC/0582/1980 : (1981) 2 SCR 111 at 139 referred to the "laconic discussion and limited ratio" in Subhajit Tewary v. Union of India MANU/SC/0059/1975 : (1975) 3 SCR 616, a judgment of a Constitution Bench of this Court, and was not bound by it. Krishna Iyer, J. put it thus:

We may first deal with Subhajit Tewary v. Union of India MANU/SC/0059/1975 : (1975) 3 SCR 616, where the question mooted was as to whether the C.S.I.R. (Council of Scientific and Industrial Research) was 'State' Under Article 12. The C.S.I.R. is a registered society with official and non-official members appointed by Government and subject to some measure of control by Government in the Ministry of Science and Technology. The court held it was not 'State' as defined in Article 12. It is significant that the court implicitly assented to the proposition that if the society were really an agency of the Government it would be 'State'. But on the facts and features present there the character of agency of Government was negatived. The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be 'State' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State'. With great respect, we agree that in the absence of the other features elaborated in Airport Authority case MANU/SC/0048/1979 : (1979) 3 SCC 489, the composition of the Governing Body alone may not be decisive. The laconic discussion and the limited ratio in Tewary (supra) hardly help either side here.

Also, in Municipal Corporation of Delhi v. Gurnam Kaur, MANU/SC/0323/1988 : (1989) 1 SCC 101 at 110, this Court stated:

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 [Writ Petitions Nos. 981-82 of 1984] 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.

Further, in State of M.P. v. Narmada Bachao Andolan, MANU/SC/0599/2011 : (2011) 7 SCC 639 at 679-680, it was stated:

65. "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.

xxx xxx xxx

67. 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.

It is clear, therefore, that where a matter is not argued at all by the Respondent, and the judgment is one of reversal, it would be hazardous to state that the law can be declared on an ex parte appraisal of the facts and the law, as demonstrated before the Court by the Appellant's counsel alone. That apart, where there is a detailed judgment of the High Court dealing with several authorities, and it is reversed in a cryptic fashion without dealing with any of them, the per incuriam doctrine kicks in, and the judgment loses binding force, because of the manner in which it deals with the proposition of law in question. Also, the ratio decidendi of a judgment is the principle of law adopted having regard to the line of reasoning of the Judge which alone binds in future cases. Such principle can only be laid down after a discussion of the relevant provisions and the case law on the subject. If only one side is heard and a judgment is reversed, without any line of reasoning, and certain conclusions alone are arrived at, without any reference to any case law, it would be difficult to hold that such a judgment would be binding upon us and that we would have to follow it. In the circumstances, we are of the opinion that the judgment in Yasangi Venkateswara Rao (supra) cannot deter us in our task of laying down the law on the subject.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 134 of 2013 (Under Article 32 of the Constitution of India)

Decided On: 16.02.2018

 Jayant Verma and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Navin Sinha, JJ.

Citation: (2018) 4 SCC 743

Print Page

Whether an earlier decision of co-equal Bench will bind Bench of same strength?

 In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra and Anr. MANU/SC/0239/2014 : (2014) 16 SCC 623 which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam Rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or 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 or 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. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh's case was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari (supra) but had been guided by Santosh Devi (supra). We have no hesitation that it is not a binding precedent on the co-equal Bench.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Civil) No. 25590 of 2014, 

Decided On: 31.10.2017

 National Insurance Company Limited Vs. Pranay Sethi and Ors.

Print Page

What is per incuriam Judgment?

It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or 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 or 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 this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. 

Supreme Court of India

Sundeep Kumar Bafna vs State Of Maharashtra & Anr on 27 March, 2014

Bench: K.S. Radhakrishnan, Vikramajit Sen

REPORTABLE

Citation;(2014)16 SCC623, 2014 Cri.L.J. 2245, 2014 AIR SCW 2115,2014 (2) KLT 809, AIR 2014 SC 1745,

Print Page

Mutually irreconcilable decisions of Supreme Court-earlier Judgment is to be followed

It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. 

Supreme Court of India

Sundeep Kumar Bafna vs State Of Maharashtra & Anr on 27 March, 2014

Bench: K.S. Radhakrishnan, Vikramajit Sen

REPORTABLE

Citation;(2014)16 SCC623,2014 Cri.L.J. 2245,

 2014 AIR SCW 2115,2014 (2) KLT 809,

 AIR 2014 SC 1745, 

Print Page

Doctrine of precedent-“per incuriam” principle

 In Mamleshwar Prasad & Anr. v. Kanahaiya Lal (dead) through LRs., (1975) 3 SCR 834, Krishna Iyer, J., succinctly laid down what is meant by the “per incuriam” principle. He stated:

“We do not intend to detract from the rule that, in exceptional instances, whereby obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have 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 judgment per incuriam.” (At page 837)

Supreme Court of India

M/S Fibre Boards (P) Ltd ... vs Cit Bangalore on 11 August, 2015

Bench: A.K. Sikri, Rohinton Fali Nariman

REPORTABLE

Citation;(2015) 10 SCC333

Print Page

When judgment is given ignoring binding precedent,said judgment will be Per incuriam

 Art. 141 - Per incuriam decisions - Held, decisions in Satnam Singh, (2011) 14 SCC 758, Mubasir Ahmed, (2007) 2
SCC 349 and Mohd. Nasir, (2009) 6 SCC 280, held, are per incuriam since they were rendered in ignorance of larger
Bench decisions in Pratap Narain Singh Deo, (1976) 1 SCC 289 and Valsala K., (1999) 8 SCC 254,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8 OF 2014
[Arising out of Special Leave Petition (Civil)
No.8569 of 2013]
SABERABIBI YAKUBBHAI SHAIKH
& ORS.
V
NATIONAL INSURANCE CO. LTD.
& ORS.
Dated;JANUARY 02, 2014
Citation; (2014) 2 SCC 298

Print Page

Whether judgment sub silentio is having precedential value?

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 pavement 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 or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 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.

Supreme Court of India

Municipal Corporation Of Delhi vs Gurnam Kaur on 12 September, 1988

Equivalent citations: 1989 AIR 38, 1988 SCR Supl. (2) 929

(1989) 1 SCC101

Bench: Sen, A.P. (J)

Read full Judgment here: Click here

Print Page

Whether subsequent per incuriam judgement can be ignored?

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.

It is a settled rule that if a decision has been given per incuriam the court can ignore it

;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

Supreme Court of India

Rattiram & Ors. vs State Of M.P.Tr.Insp.Of Police on 17 February, 2012

Author: D Misra

Bench: Dalveer Bhandari, T.S. Thakur, Dipak Misra

Print Page