PER INCURIAM

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THE MEANING:

Per incuriam, literally translated as "through lack of care", refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant.

The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the rationes of a judgment must be followed thereafter by lower courts while hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam. Also the said doctrine is an exception to article 141 of Constitution of India which embodies the doctrine of precedents as a matter of law.

C.C.K. Alien in 'Law in the Making analyzed the concept of 'per incuriam'.According to him, 'Incuria' means literally 'carelessness' which apparently is considered less uncomplimentary than ignorantia; but in practice 'per incuriam' applies to mean 'per ignorantiam'. It would almost seem that 'ignorantia juris neminem excusat' – except a Court of law, ignorance of what? Ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it.

The rule applies even though the earlier court knew of the statutes in question but it did not refer to and had not present to its mind, the precise terms of the statute. Similarly a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand, such a mistake is again such 'incuria' as to vitiate the decision. Even a lower court can impugn a precedent on such grounds.

In the normal course all decisions of a High Court would be binding on a District Court or a Tribunal which is subject to supervisory jurisdiction of a particular High Court and the decisions of the Supreme Court are considered the law of the land.

When a High Court or Supreme Court is faced with a judgement cited before it there are certain rules for maintaining uniformity in law and of precedents commonly known as the principle of stare decisis.

The following is the practice usually adopted:

Firstly,The law laid down by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

and Secondly ,A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

INTERNATIONAL VIEW

The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of 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.

In Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 it was 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."

The principle of stare decisis is stated thus in Waman Rao v. Union of India:

“42… In fact, the full form of the principle, stare decisis et non quieta movere which means “to stand by decisions and not to disturb what is settled”, was put by Coke in its classic English version as: ‘Those things which have been so often adjudged ought to rest in peace.”

Even when a Court is faced with two conflicting judgements of a superior court of equal strength the Court may follow a decision which it considers to be correctly decided. This was stated in Jaydeo v. State of Maharashtra.

“24. The Full Bench of this Court in Kamleshwar Ishwardas Patel v. Union of India reported in 1994 Mh LJ 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co-equal strength, has held that the High Court is not necessarily bound to follow the decision later in point of time, but must follow the one which in its view is better in point of law. For coming at such a conclusion, the Full Bench of this Court has relied on the judgment of the Constitution Bench of the Supreme Court in f Atma Ram v. State of Punjab.”

The concept of per incuriam was examined in Hyder Consulting (UK) Ltd. v. State of Orissa where it was held:

“46. 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. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd., wherein R.M. Sahai, J. in his concurring opinion stated as follows:

“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’.”

Factors

Some of the factors to consider while contending that a decision is not a binding precedent and should not be followed or be ignored on the above principle are now considered set out hereafter:

A decision where the point in issue is not argued or considered by the Court or decision rendered without argument, without reference to the crucial words of the rule, and without any citation of authority.

A decision where a mere direction is issued without laying down any principle of law.

State of UP v. Jeet S. Bisht

“18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio. The meaning of a judgment sub silentio has been explained by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur (vide paras 11 and 12) as follows: (SCC pp. 110-11)

“… ‘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.’

In Gerard v. Worth of Paris Ltd.

The only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided ‘without argument, without reference to the crucial words of the rule, and without any citation of authority’, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

21. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.

22. In Municipal Committee, Amritsar v. Hazara Singh the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh this Court observed that everything in a decision is not a precedent. In Delhi Admn. v. ManoharLal the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.”

Examples of per Incuriam

Examples of per incuriam are uncommon, partly because the device is perceived by upper courts as a type of lèse-majesté, and respectful lower courts prefer to distinguish such precedent cases if possible.

The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of 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.

In R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1951] 1 All ER 268, a divisional court of the King's Bench division declined to follow a Court of Appeal decision on the ground that the decision had been reached per incuriam for failure to cite a relevant House of Lords decision. Some academic critics have suggested that Re Polemis 1921 was decided per incuriam as it did not rely upon the earlier decision in Hadley v Baxendale 1854.

Similarly, others have suggested that Foakes v Beer 1884 was decided per incuriam as it failed to note the recent House of Lords decision in Hughes v Metropolitan Railway Co 1877.

CONCLUSION :

Therefore, it can be concluded that when a lower court ignores the decision of a higher court, the decision passed by such court can be discarded as being per incurium of the decision of the higher court.

REFERENCE

https://en.wikipedia.org/wiki/Per_incuriam

Article 227. Power of superintendence over all courts by the High Court.

Article 141. Law declared by Supreme Court to be binding on all courts.

https://www.scconline.com/blog/post/2020/06/02/per-incuriam-an-analysis/

https://www.mondaq.com/india/civil-law/516732/the-doctrine-of-per-incuriam

https://en.wikipedia.org/wiki/Precedent

http://www.scconline.com/DocumentLink/OR0xxHYN