When A Judgment of Apex Court/ High Court Can Be Called As Per Incuriam By CS Shubham Budhiraja

This Court’s jurisprudence has shown that usually the Courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law.

Doctrine of precedents and staredecisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, judges owe a duty to the concept of certainty of law,therefore they often justify their holdings by relying upon the established tenets of law.

Chandra Prakash v. State of U.P., (2002) 4 SCC 234

The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is now a settled principle of law that the decisions rendered by a coordinate Bench is binding on the subsequent Benches of equal or lesser strength

Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antinomy thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them, and sanctioning the other as good law.

A judgment of the Court can be distinguished into two parts:ratio decidendi and the obiter dictum. The ratio is the basic essence of the judgment, and thesame must be understood in the context of the relevant facts of the case.

Union of India v. Dhanwanti Devi, (1996) 6 SCC 44

It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyses a decision and isolate from it the ratio decidendi. … A decision is only an authority for what it actually decides. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.

The rule of per incuriam has been developed as an exception to the doctrine of judicial precedent. Literally, it means a judgment passed in ignorance of a relevant statute or any other binding authority

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

Per incuriam,merely serves to denude the decision ofits precedent value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen — nor has the overruling Bench any jurisdiction so to do — that the finality of the operative order, inter parties, in the previous decision is overturned. In this context the worddecision’ means only the reason for the previous order and not the operative order in the previous decision, binding inter parties.

A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the perincuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.


Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning Hence, the rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment.

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