Precedent - Law of Precedent

per incuriam

Law of Precedent

“In curia” literally “carelessness”. In practice, per incuriam is taken to mean per ignoratium. Thus, there are those decisions given in ignorance or forgetfulness of some statutory provisions or some authority binding on the court concerned.

(See: Fibre Boards (Pt.) Ltd. v. CIT, (2015) 10 SCC 333; CCE v. Vijay Vallabh Rolling Mills, (2015) 12 SCC 802; K P Manu v. Scrutiny Committee for Verification of Community Certificate, AIR 2015 SC 1402; and Jagannath Temple Managing Committee v. Siddha Math, AIR 2016 SC 564.

Neither factual findings nor directions issued under Article 142 are to be treated as precedents. (Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72; Ram Prakash Singh v. State of

Bihar, (2006) 8 SCC 381; and State of U P v. Neeraj Awasthi, (2006) 1 SCC 667.)

In Kumari Madhuri Patil & Anr. vs. Addl. Commissioner, Tribal Development & Ors., AIR 1995 SC 94, the Supreme Court issued interim mandamus for establishing committees to verify the community certificates. This was challenged in Daya Ram v. Sudhir Batham & Ors., (2012) 1 SCC 333, on the ground that the Court had no competence to issue the guidelines which amounted to legislation. The Court upheld the directions so issued observing that the Court has power to issue interim mandamus till the legislature enacts the competent legislation placing reliance on its earlier judgments in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, Vinit Narain v. Union of India, (1998) 1 SCC 226 and Dr. Dinesh Kumar v. Motilal Nehru Medical College, (1990) 4 SCC 627.

In the aforesaid cases, not only directions were issued but it was made clear that non observance of any such direction would amount to disobedience of the order of the court and thus had to be strictly adhered to. However, in Union of India v. Prakash Hinduja, AIR 2003 SC 2612, the Court discussed the issue as to whether non-compliance of its order passed under Article 142 amounted to contempt of court. The Supreme Court observed that direction issued regarding conferment of statutory status on CVC could not be treated to be of such a nature, as the court was not competent to issue such a direction, the non-compliance whereof may amount to contempt of the order passed by the Supreme Court.

(a) The Supreme Court in Anugrah Narain Singh v. State of U.P. (1996) 6 SCC 303, cautioned the High Courts of the judicial discipline and adherence to the rule of precedents, observing that when there is a difference of views between coordinate Benches of equal strength, the matter should be referred to a larger bench, instead of passing any order. (See also: Jaisri Sahu v. Rajdewon Dubey, AIR 1962 SC 83; Delhi Development Authority v. Ashok Kumar Behal, AIR 2002 SC 2940; and Union of India v. Raghubir Singh, (1989) 2 SCC 754).

(b) Decision of larger Bench will prevail over the decision of a smaller Bench.

(c) Decisions of a smaller Bench prevails, which deals with and explains the decision of larger Bench. (Union of India v. Nirala Yadav (2014) 9 SCC 457 ).

(d) If decision of coordinate Benches of equal strength differ, and the later decision does not notice or consider the earlier decision, then the Court may choose to follow that decision which is closer to the facts of the case at hand and deals more directly with the legal issue.

(e) If a court considering a particular provision of law is faced with two decisions, it will follow the one, which deals with the same or identical provision rather than the decision which deals with a similar but not an identical provision, even if the latter is by a larger Bench or a later judgment.

(f) When a Constitution Bench has decided an issue and subsequent smaller Benches have not considered it or answered the similar issues somewhat differently, the later

decisions should be construed in terms of the Constitution Bench decision as the smaller Benches could not have intended a different view.

[See: Mohan Parasaran: “How to Comprehend Precedents” (2016) 2 SCC 28 (J) ]