By – Ayush Tiwari Co Ordinator Junior Advocates and Law Students Association of India.
The video recordings of the hearing shows that during the hearing in which Adv. Mathew Nedumpara was addressing the Bench, Justice Datta is stated to have observed that even if a judgment of the Supreme Court is per incuriam, a High Court cannot refuse to follow it. In support of this proposition, reliance was placed on the two-Judge Bench decision in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, wherein the Court observed:
“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 binding on all courts within the territory of India… 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.”
With due respect — the correct law is precisely the opposite of what was stated. The very proposition that seeks to compel courts to follow judgments even where those judgments are per incuriam, and to prevent courts from refusing to follow such decisions, is itself a decision rendered per incuriam.
Constitution benches of the Supreme Court in many judgments ruled that the High Courts not only can — they must — decline to follow decisions of the Supreme Court that are per incuriam.
As early as Distributors (Baroda) (P) Ltd. v. Union of India, (1986) 1 SCC 43, a Constitution Bench emphasised that the doctrine of precedent does not compel courts to perpetuate manifest error. Referring approvingly to Lord Denning’s observation in Ostime v. Australian Mutual Provident Society, the Court noted that precedent does not oblige a court “to follow the wrong path until it falls over the edge of the cliff.”. It is further ruled that “To perpetuate error is no heroism”
Similarly, in Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232, Justice Krishna Iyer clarified that although certainty and consistency in law are vital, a decision rendered in ignorance of a clear statutory provision or binding authority — due to obvious inadvertence or oversight — may not possess binding precedential force.
The same principle was reiterated in Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558, where it was held that ;
“*20.* … In State v. Ratan Lal Arora (2004) 4 SCC 590 it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedential value and shall have to be treated as having been rendered per incuriam.”
Three judge bench in the case of State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639(3-J), where it is ruled that;
“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).
- 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. ”
Further clarity was provided in Sundeep Kumar Bafna v. State of Maharashtra, AIR 2014 SC 1745, where the Supreme Court recognised the jurisdiction and indeed the duty of all courts to decline to follow a precedent that is demonstrably per incuriam. This understanding was subsequently affirmed by the Constitution Bench in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680.
More recently, the Constitution Bench in Shah Faesal v. Union of India, (2020) 4 SCC 1, authoritatively summarised the doctrine, holding that a judgment may be treated as per incuriam where it is based on reasoning that is demonstrably wrong or where, due to obvious oversight, it fails to notice a plain statutory provision or binding authority directly contrary to the conclusion reached.
Viewed in this settled jurisprudential framework, the broad proposition that High Courts are absolutely bound to follow even per incuriam judgments of the Supreme Court cannot be sustained. The binding force under Article 141 extends to the “law declared,” not to decisions rendered in ignorance of binding law.
In Som Mittal v. Government of Karnataka, (2008) 3 SCC 574, a Three-Judge Bench held that the Judges are bound to ensure that no order passed by them creates ambiguity, confusion, or conflict with the law already declared by the Supreme Court.
In State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85; it is ruled that it is the duty of the Courts to apply the correct law even if it is not raised by the parties.
It is therefore evident that the view expressed by Justice Dipankar Datta by relying on the two-judge bench in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420 — to the effect that High Courts are prohibited from declining to follow a judgment of the Supreme Court even where that judgment is per incuriam — does not represent the correct or current state of the law. That view stands effectively overruled and superseded by the Constitution Bench decisions
With the greatest of respect to Justice Dipankar Datta — a judge of undoubted learning and distinction — this settled, binding and constitutionally entrenched position, established by Constitution Benches of the Supreme Court itself, appears to have been inadvertently overlooked during the course of the hearing. It is a position that deserves acknowledgment, and where necessary, correction — because the law on this point is not merely persuasive or debatable. It is binding. It is settled. And it is the law of the land.