The Doctrine of 'Per Incuriam'

The maxim 'per incuriam' is derived from the latin expression which means 'through inadvertence'. Incuria means 'carelessness'. In practice, per incuriam appears to mean per ignoratium.

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.

According to the Black's Law Dictionary (Fourth Edition, 1891), per incuriam means through inadvertence. This means something done with oversight without considering all the relevant factors. Further, the term also means 'through want of care' or when translating from Latin, it means 'through lack of care' and it concerns itself with the decision of the court which was mistakenly given.

A judicial decision is made per incuriam if it is made in ignorance of a relevant statutory provision or a relevant binding decision of court and awareness of that earlier provision or decision would have led to a different result. However, a later court has the power to depart from an earlier decision by relying on the per incuriam doctrine to justify exercising that power. The English Courts were the first ones to develop this principle in relaxation of the rule of stare decisis. Accordingly, the earlier decision is to be ignored if it is rendered in ignorantium of a statute or other binding authority.

If the decision of the court is given per incurium, it is not a binding precedent and therefore need not be followed by the lower courts. When a judgment is pronounced without considering the relevant authorities or statutes, it is said to be wrongly decided and therefore, does not have the force of law.

It would be apropos to refer to the case of Mamleshwar Prasad and Another vs. Kanhaiya Lal (Dead) through L.Rs. 1975 (2) SCC 232 wherein the Apex Court dealt with the principle of per incuriam and observed 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 judgment 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 judgment per incuriam.

The Apex Court in a catena of judgments has dealt with the Doctrine of Per incuriam. It would be relevant to refer to the case of Punjab Land Development and Reclamation Corporation Ltd. Chandigarh Vs. Presiding Officer, Labour Court Chandigarh (1990) 3 SCC 682 wherein the Constitution Bench of the Apex Court held thus:

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.

The Constitution Bench of the Apex Court in A.R.Antulay vs. R.S. Nayak & Another 1988 (2) SCC 602 in para 42 has quoted the observations of Lord Goddard in Moore vs. Hewwit [(1947) 2 All.ER 270] and Penny vs. 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..................

The Apex Court in State of U.P. & Another vs. Synthetics & Chemicals Ltd. & Another 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. Bristol aeroplane co. Ltd). ...............

It would be trite to refer to the case of Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 wherein the Apex Court dealt elaborately with the doctrine of per incuriam & observed thus:

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.

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.

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.

It would be worthwhile to refer to Hyder Consulting (UK) Ltd. vs. Governor, State of Orissa, 2015 2 SCC 189 wherein the Apex Court discussed the scope of this doctrine and observed thus:

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......

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. Jindal Exports Ltd., (2001) 6 SCC 356.

In State of Assam v. Ripa Sarma AIR 2013 SC 3588 the Apex Court held that when a judgment is ignorant of earlier judgments of the court by either similar or larger benches, it would be per incuriam and it falls under this doctrine of per incuriam. Such a judgment cannot be called a precedent and need not be followed. The Court held thus:

In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent.

The deliberation would be incomplete without referring to Apex Court judgment in State of M.P. v. Narmada Bachao Andolan 2011 (12) SCC 333 wherein the 3 member bench observed thus:

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

The Apex Court in the case of State of Orissa v. Nalinkanta Muduli, (2004) 7 SCC 19 deprecated the practice of citing an overruled decision by the legal fraternity as a precedent without informing the court that it has been overruled. The Court said that the advocates are officers of the court and it is their prime duty to assist the Court in delivery of justice and not to mislead it. The Court observed thus:

It is strange that a decision which has been overruled by this Court nearly quarter of a century back was cited by the Bar and the court did not take note of this position and disposed of the matter placing reliance on the said overruled decision. It does not appear that the decision of this Court reversing the judgment of the High Court was brought to the notice of the learned Single Judge who was dealing the matter.

It is a very unfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned Single Judge. Members of the Bar are officers of the Court.

They have a bounden duty to assist the Court and not mislead it. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter of serious concern. It is one thing that the Court notices the judgment overruling the earlier decision and decides on the applicability of the later judgment to the facts under consideration on it.

It also does not appear that learned counsel appearing for the respondent before the High Court did not refer to judgment of this Court. All this shows that the matter was dealt with very casually. From the judgment of the High Court it is noticed that the hearing was concluded on 13.3.2003 and the judgment was delivered on 25.4.2003.

It was certainly the duty of the counsel for the respondent before the High Court to bring to the notice of the Court that the decision relied upon by the petitioner before the High Court has been overruled by this Court. Moreover, it was duty of the learned counsel appearing for the petitioner before the High Court not to cite an overruled judgment. It is not that the decision is lost in antiquity.

It has been referred to in a large number of cases since it was rendered. It has been referred to recently in many cases e.g. S.M. Datta v. State of Gujarat ( 2001 (7) SCC 659), M.C. Abraham V. State of Maharashtra ( 2003 (2) SCC 649), Union of India v. Prakash P. Hinduja ( 2003 (6) SCC 195) and earlier in many oft cited decisions in State of Haryana v. Bhajan Lal ( 1992 Supp. (1) SCC 335 ), Janta Dal v. H.S. Chowdhary ( 1992 (4) SCC 305), Union of India v. W.N. Chadha ( 1993 Supp. (4) SCC 260) and State of Bihar v. P.P. Sharma ( 1992 Supp. (1) SCC 222).

We can only express our anguish at the falling standards of professional conducts. Impugned judgment of the High Court is set aside. We remit the matter back to the High Court so that it can deal the petitions afresh and decide on merits taking into account the decision and all other relevant aspects of this Court. All the petitions before the High Court which were disposed of by the impugned judgment shall stand restored to its original position to be dealt with in accordance with law.

The principle of per incuriam is an established principle of law whereby the judgments carried in forgetfulness or omission of a certain precedent or law or a statute are not valid judgments and therefore they are an exception to the rule of doctrine of stare decisis and such judgments are not valid precedents for other similar cases and do not hold any value in the eyes of law.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021