This article has been authored by Hritik Pathak, a second-year student at RGNUL, Punjab.
The word incuria mean carelessness and the phrase “per incuriam” appears to mean “per ignoratium.” According to the Black’s Law Dictionary (4th Edition, 1891) it means through inadvertence.
The word incuria means carelessness, as held by the House of Lords in Young v. Bristol Aeroplane Company Limited.
Lord Godard, C.J., in Huddersfield Police Authority v. Watson, that places where cases or statues had not been brought to court’s attention and the court's discretion or the judgement is based upon that ignorance, the decision would be a decision rendered in per incuriam. The phrase ‘Per incuriam' defines itself as ‘through want of care', for an instance if a judgment held by court is given in per incuriam, that is without court's attention in respect to relevant authorities and statues. Before going into the details it needs to be understand that the application of the rule of ‘per incuriam' is on ratio decidendi, not to obiter dicta.
Furthermore, the question arises that when a judgement is to be held as ‘per incuriam'. Following are the mandatory ingredients which should be present :
· Any statute, authority or precedent was not brought up to the notice of the court.
· A judgement given by the court can be taken into an account as a per incuriam when its ratio does not supersede the ratio of previous judgments given by a higher court of law or larger bench.
In addition to this, the judgment would also be held as per incuriam if it does not align with the precedents of Supreme Court.
Henceforth, if the above-mentioned situations are met, it has become a settled rule that if a decision has been given per incuriam, the court has the authority to ignore and declare the judgment to be false.
Judicial Development in India
In recent years many judgements were laid by various High Courts and Supreme Court with regard to per incuriam. In the light of the judgement Buta Singh v. Union of India, the Hon'ble Supreme Court stated that a two-judges bench does not take consideration of the binding decision of a three-judges bench, the judgement laid will be per incuriam. Similar to this, in K.H Siraj v. High Court of Kerala in 2006, the court held that if the judgement given by a High Court does not regard to the relevant line of decisions given by Supreme Court, such Judgement given by High Court is said to be per incuriam.
In the case of Punjab Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh), court stated that in situations where the problem of per incuriam arises there should not be any difficulty, the Supreme Court can lay law afresh. It was held that non-consideration of irrelevant statues can not make the ratio for a judgment to be held as per incuriam.
Whereas in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., it was held that for a case to be stated as per incuriam it has to be shown that some part of the judgment was wrong. Therefore, a judgment given without an argument, reference and citations is per incuriam.
Difference between Per Incuriam and Res Judicata
Even though per incuriam and res judicata are judgments held by the high tribunals and court, the per incuriam decision can not be operated as res judicata. The concept of res judicata also known as claim preclusion, which means a matter decided by the courts on the merits o the case. Whereas per incuriam decisions are those judgments where the relevant statutes and authorities are not cited before the court of law. Hence, the judgment laid by the court is not to be followed. In the case of Indian Railway SAS Staff Association v. Union of India, the Hon’ble Supreme Court held that per incuriam decisions does not operate as res judicata.
Validity of Per Incuriam Judgements as Precedents
In most countries, including India judges often for the better understanding of law seek for the judgments laid by high tribunals and authority. These judgments are very efficient for deciding cases of similar matters. Now the question arises Whether a per incuriam decision can be used as a precedent?
Following are the judgments held by courts in this matter.
1) In the matter of Hyder Consulting (U.K) v. State of Orrisa, it was held that the cases of per incuriam may apply in the cases where due to obvious carelessness, the judgment was given before noticing the statues. Furthermore, the court said that if there is already a judgment given by the apex court and the facts are identical, then the law laid will be binding on the subordinate courts.
2) In State of Assam v. Ripa Sarma, the court stated that if a judgment is rendered in ignorance of the earlier judgment by the same or larger bench it is said to be per incuriam. Hence, can not be taken as a precedent.
3) In the famous case of, when the case was filed due to the construction of the dam over the holy river Narmada. The court stated that the principle of per incuriam had been evolved gradually by the judgements given by courts, it aims to give a lenient approach to the rule of stare decisis which means to stand by things decided.
The English Courts were the first ones to develop this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered in ignorantium of a statute or other binding authority. Therefore, any judgment laid either in the ignorance of any statute or authority is held to be as per incuriam.
Citing Per Incuriam Decisions at Bar
In the judgment of State of Orissa v. Nalinkanta Muduli, the Supreme Court came down heavily on the members of the bar, stated that the advocates are officers of the court and they have a moral obligation to help the court to deliver justice not to mislead it. Citing an overruled decision as a precedent, without informing the court that it has been overruled is a matter of concern, which needs to be dealt with utmost seriousness.
Recent Development on The Concept
Recently, In Dr. Shah Faesal And Ors. v. Union of India, the Supreme Court held that the rule of per incuriam depends upon ratio of judgment. The same have an impact on the stability of legal precedents, it mist be applied sparingly, when there is an irreconcilable conflict between the opinions of two coordinate benches.
Henceforth, the principle of per incuriam is an established principle of law, where the judgments are the results of omission of particular statute or law and hence can not be considered as a valid judgment. Therefore, id an exception to doctrine of stare decisis. For an instance if a judgment is given in the scenario where the court has considered all the relevant provisions and statues before the delivery of the judgment, the decision is not per incuriam. It can be concluded that decision given per incuriam are moreover an omission done. Hence, it should not hold any value in the eyes of law.