THE BEYOND OBITER LAW BLOG: Legal News
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The Supreme Court has comprehensively reiterated the principles governing the doctrine of per incuriam, holding that the binding force of a judicial precedent depends on the strength of the Bench that rendered it, and not on the numerical strength of judges expressing a particular view. Emphasising the importance of judicial discipline, the Court observed that a coordinate Bench cannot disregard or reinterpret a binding decision of a larger Bench, and any such departure may render the subsequent decision per incuriam.
[For instance: Suppose a three-judge Bench of the Supreme Court holds that Policy A applies to a particular class of prisoners. Later, a two-judge Bench, without referring the matter to a larger Bench, holds that Policy B applies instead, contrary to the earlier three-judge Bench ruling. Since a smaller Bench cannot overrule or disregard the decision of a larger Bench, the later two-judge Bench decision may be treated as per incuriamand would not have binding precedential value.]
A Bench of Justice Sanjay Karol and Justice N.K. Singh made the observations while setting aside a Punjab and Haryana High Court judgment in a remission dispute arising under the Haryana remission policies.
The Court clarified that per incuriam is a narrow exception to the doctrine of stare decisis and must be invoked sparingly. It held that a judgment may be regarded as per incuriam where its ratio is irreconcilable with an earlier decision of a Bench of equal or larger strength, or where a relevant statutory provision, rule, or regulation was not brought to the Court’s notice.
The Bench stressed that the doctrine applies only to the ratio decidendi of a judgment and not to incidental observations (obiter dicta). It further reiterated that if a Bench disagrees with a decision rendered by another Bench of co-equal strength, judicial discipline requires the matter to be referred to a larger Bench instead of taking a contrary view.
Importantly, the Court observed:
“It is not the numerical strength of judges taking a particular view that is relevant but it is instead the strength of the Bench, which is the determinative factor of the binding nature of a particular view.”
The Court also clarified situations where a judgment cannot be treated as per incuriam. Merely because a court reaches an incorrect conclusion after considering an earlier decision does not render its judgment per incuriam. Likewise, courts should not infer inconsistency with previous decisions unless such conflict is apparent on the face of the judgment.
Applying these principles, the Supreme Court held that the coordinate Bench decision in State of Haryana v. Raj Kumar (2021) was per incuriam because it was inconsistent with the binding three-Judge Bench decision in State of Haryana v. Jagdish (2010). The earlier coordinate Bench had wrongly treated the 2002 Haryana Remission Policy as a statutory memorandum despite the larger Bench having recognised it as a policy framed in exercise of constitutional powers.
The Court further held that the 2002 Remission Policy was framed under the constitutional powers of the Governor and could not be overridden by the subsequent 2008 Remission Policy. Consequently, the observation that the 2008 policy superseded the 2002 policy was held to be legally unsustainable.
Reaffirming the hierarchy of precedents, the Court observed that decisions of larger Benches are binding on Benches of equal or lesser strength, and any departure from such settled law undermines certainty, consistency, and institutional discipline in the judicial process.