When Can A Judgment Be Declared 'Per Incuriam'? Supreme Court Explains

The Supreme Court on Tuesday reiterated that the doctrine of per incuriam is an exception to the rule of stare decisis and can be invoked only in limited circumstances, holding that a judgment may be declared per incuriam if its ratio is irreconcilable with an earlier decision rendered by a Bench of equal or larger strength or if it was delivered without considering a relevant statutory provision.

A Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh laid down the principles while holding that the Court's 2021 judgment in State of Haryana v. Raj Kumar was per incuriam for being inconsistent with the earlier three-judge Bench ruling in State of Haryana v. Jagdish.

The Court observed that the doctrine of per incuriam is an exception to the principle of precedent and "must be applied sparingly." Summarising the settled law from earlier decisions, the Bench identified the principles governing the doctrine.

It held that a judgment is per incuriam when its ratio is not reconcilable with an earlier decision of a Bench of equal or higher strength, or when a relevant statutory provision, rule or regulation was not brought to the Court's notice. The doctrine applies only to the ratio decidendi of a judgment and not to observations made obiter dicta.

The Bench further emphasised that judicial discipline requires a Bench of co-equal strength which disagrees with an earlier decision to refer the matter to a larger Bench instead of taking a contrary view. It reiterated that it is the strength of the Bench, not the number of judges subscribing to a particular view, that determines the binding nature of a precedent. Consequently, a Bench of lesser strength cannot depart from the law laid down by a larger Bench.

The Court also clarified when a judgment cannot be branded per incuriam. It said a decision does not become per incuriam merely because it refers to an earlier judgment and reaches a conclusion that may be right or wrong. Likewise, where an ordinary reading of the judgment does not reveal any conflict with earlier precedents, courts should refrain from interpreting it as per incuriam.

The principles were applied in the context of a dispute over the applicability of Haryana's remission policies. The Court found that the three-judge Bench in State of Haryana v. Jagdish had already held that the State's 1993 remission policy was an exercise of the Governor's constitutional power under Article 161 of the Constitution and that such a policy could not be overridden by the subsequent statutory remission policy issued under the Code of Criminal Procedure.

According to the Bench, Haryana's 2002 remission policy was materially identical to the 1993 policy because both contemplated remission being granted by the Governor under Article 161. However, in State of Haryana v. Raj Kumar (2021), a two-judge Bench held that the 2002 policy was statutory in nature and stood superseded by the State's 2008 policy framed under the Code of Criminal Procedure.

Holding that this conclusion directly conflicted with the binding ratio in Jagdish, the Court declared Raj Kumar to be per incuriam.

The Bench observed that the 1993 and 2002 policies were "identical in terms of their source of power under Article 161," and therefore, once the larger Bench had recognised the 1993 policy as an exercise of constitutional power, "the inescapable conclusion" was that the 2002 policy was also constitutional in character. The contrary finding in Raj Kumar, the Court held, "would fall foul of the reasoning in Jagdish supra and hence be rendered per incuriam."

The Court further explained that a reference to a larger Bench was unnecessary in the present case because there was already a controlling precedent of a larger Bench governing the issue. "Had it been that we differed with the learned judges in Raj Kumar without there being a controlling precedent in the form of Jagdish, a reference to a larger Bench would have been the available course. Since the latter is already there, in our view, there is no conflict that needs deciding," the Bench observed.

In support of the principles governing the doctrine, the Court referred to several earlier decisions, including Sundeep Kumar Bafna v. State of Maharashtra, Shah Faesal v. Union of India, Pradip Chandra Parija v. Pramod Chandra Patnaik, Central Board of Dawoodi Bohra Community v. State of Maharashtra and Trimurthi Fragrances (P) Ltd. v. State (NCT of Delhi).