Divergent Decisions of Co-Equal Benches and Doctrine of Decisions ‘PER INCURIAM’

Saji Koduvath, Advocate, Kottayam

Abstract

• Kerala High Court Full Bench View in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458]: If Divergent decisions of Two benches of equal strength of the APEX COURT: Later Decision will Prevail.
• The Full Bench Decision is criticised in very strong words in the following two decisions –
  • 1. Kumari Alias Mary Francis, v. Baby,  2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.)
  • 2. Bindu v. State of Kerala, 2014-4 KHC 772 ; 2015-1 KLT(SN) 5 (Dama Seshadri Naidu, J.)

Per Incuriam – If Not Obeyed Provision In A Statute or Earlier Judgment

 “Incuria” literally means “carelessness”. Per Incuriam gives the idea – ‘out of ignorance’.

Black’s Law Dictionary, explains ‘per incuriam’ as under:

• “A judgment per incuriam is one which has been rendered inadvertently.”

A Judgment rendered in total ignorance of law or earlier decision alone constitutes the principles of per incuriam; erroneous appreciation or misconstruction of a binding precedent is not a per incuriam decision. Total ignorance of earlier judgments of co-equal bench also renders a decision per incuriam. Such judgments will not be treated as precedent. [See: State of State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639, Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356, Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458]

Sundeep Kumar Bafna v. State of Maharashtra [2014] 16 SCC 623, it is observed that the Latin expression “per incuriam” means through inadvertence. A decision can be said generally to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or when it has acted in ignorance of a decision of the High Court or the Supreme Court. (Punjab Land Devl., & Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court : (1990) 3 SCC 682; Commissioner of Income Tax v. B.R. Constructions, 1992 SCC OnLine AP 121).

Halsbury’s Laws of England, Fourth Edition, para 578 at page 297 states the rule of per incuriam as follows:— “ignorance of the terms of a statute or rule having statutory force.”

Decision by a Bench of Larger Strength Is Binding On Subsequent Bench Of Lesser Or Co-Equal Strength: Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another, (2005) 2 SCC 673), Referred in  P.A. Thomas v. Authority Under the Minimum Wages Act   2008 1 KHC 800 ;  2008 1 KLT 858 (S. Siri Jagan,J.)

Subsequent Bench Should Follow Earlier Co-Ordinate Bench:
 Judicial Discipline – Binding Precedent: Except in compelling circumstances (such as, decision of earlier Bench is per incuriam) subsequent Bench should follow earlier co-ordinate Bench. (Para 23, Jai Singh v. Municipal Corporation of Delhi, 2010 9 SCC 385: B. Sudershan Reddy and Surinder Singh Nijjar, JJ.)

Kerala High Court View: Two benches of equal strength of the APEX COURT: Later Decision will Prevail

The Full Bench of the Kerala High Court, in a reference, in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458], had to decide – how to deal with conflicting views in the decisions of two benches of equal strength of the Apex Court. It was held that in case of conflicting decisions taken in the two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one. It was pointed out that

• a decision of the Apex Court on a declaration of law is binding on all High Courts and Subordinate courts under Article 141 of the Constitution of India and
• it may not be proper for the High Courts or Subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam.

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.) observing as under:

• “10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
  •  “We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
•  11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. After an elaborate precedential survey, following propositions have been laid down:
• “The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:-
  •  (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
  • (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
  •  (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
  •  (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
  •  (v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Art.141 of the Constitution.
  •  (vi) 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 (Salmond on Jurisprudence 12th Edn. p.153).
  •  (vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
  •  (viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam”.
• Hence, it is now indubitable that the decision rendered by the Apex Court later in point of time will prevail over the earlier one.”

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is also Referred to in:

• Saiby v. Mary, 2025-5 KHC 482: 2025-4 KLT 933 (Easwaran S., J.);
• M/s Asm Traxim Pvt Ltd v. Union Of India, 2025-11 ADJ 500 ; 2025-5 AllLJ 100
• Munni Lal v. Mohd. Rafik Kidwai, 2023-7 ADJ 74 ; 2023-AHC 124434 ; 2023-160 AllLR 658 ; 2023-2 ARC 432 ; 2023-4 AWC 3629
• XXXXXXXXXX – v. State of Kerala, 2022-5 KLT 636 (Kauser Edapagath, J.)

• Daisy M.P. v. State of Kerala, 2020-3 KHC 115 ; 2020-2 KLT 639 (Sunil Thomas, J.)
• Smitha v. V. Krishnan, 2017 AIR(Ker) 87; 2017-1 KHC 81; 2017-1 KLT 892 (K.T. Sankaran, P.D. Rajan and P. Ubaid, JJ.)
• Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon,  2018-1 KHC 412; 2018-2 KLT 553)
• Papaiah Alias S.R. Papi Reddy v. P. Nagaraja Reddy, 2019 3 AIR(Kar)(R) 274
• Rosamma Joseph v. State of Kerala,2014 1 KLT(SN) 70 ; 2014 KHC 154 (K. Ramakrishnan, J.)
• St. Joseph’s Hospital Trust v. The Kerala University of Health Sciences, 2012-3 KHC(SN) 26 ; 2012-4 KLT 444 (K.M. Joseph & K. Harilal, JJ.)
• Saramma Paulose v. Lilly, Decided On: 03-10-2011 (Thomas P. Joseph. J)

In Kumari Alias Mary Francis, v. Baby,  2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) referred Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], laid down the history of this decision as under:

•  “2. Ext. B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. ……The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors. v. Shamsher Singh, 2009 (3) SCC 687, in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
• 3. The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai, AIR 1947 PC 15, wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors., AIR 1968 SC 947. It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018 (2) KLT 553. Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another, AIR 2005 SC 752, that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
  • “The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of 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.”
•  4. It has been further reiterated by a three Judge Bench of the Apex Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86, by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-equal Bench on a later point of time.
•  5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed (M. Natarajan v. State (2008) 8 SCC 413). It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another Constitution Bench of the Apex Court in Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1] had reiterated the legal position by explaining the rule of per incuriam, relevancy and binding precedent of ratio decidendi laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding obiter dicta. The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, and also the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682.”

Is the Full Bench Decision “Per Incuriam”?Does it apply to ‘Co-equal Benches’?

Kumari Alias Mary Francis, v. Baby,  2022-6 KHC 270 ; 2022-5 KLT 614 (P. Somarajam, J.) distinguished (?) Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] observing as under:

• “6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra), a Division Bench of this Court in Sampath S. Pawar v. Ibrahim, 2013 (3) KLT 722, had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB).”
• In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam decis”. In order to avoid the mischief, the “ratio decidendi” settled on a particular legal issue by the earlier larger or co-equal Bench must be referred in relation to that particular “ratio decidendi”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in Central Board of Dawoodi Bohra Community’s case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “per incuriam decis”. The decision rendered by the Division Bench in Sampath’s case (supra) by following the Full Bench decision in Raman Gopi’s case (supra) without noticing the decision of the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra) also would stand per incuriam decis. So also, the decision rendered by a Single Bench of this Court in Hameed v. State of Kerala, 2008 (1) KLT 534, by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) cannot be held good law.
• 7. The observation made by the Apex Court in Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1] assumes importance at this juncture. The relevant portion is extracted below for reference:
  • “There have been several instances of different Benches of the High Court not following the judgments/ orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.”
•  8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (supra), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (supra), hence cannot be held to have binding precedent.”

The View: in Co-Equal Bench, Latest Judgment should Prevail – Fallacious?

It is held in Bindu v. State of Kerala, 2014 4 KHC 772 ; 2015 1 KLT(SN) 5 (Dama Seshadri Naidu, J.) that the school of thought — in case of conflict between co-equal benches, the latest judgment should prevail — is fallacious. Still, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds. The court referred to the following decisions:

• Andhra Pradesh S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi and others, 2005 (1) ALT 412 (DB)
• Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81

CONFLICTING DECISIONS OF CO-ORDINATE 2 Judge BENCHES – REFER THE MATTER TO A BENCH OF THREE HON’BLE JUDGES. Hardeep Singh v. State of Punjab 2009 AIR(SC) 483 ; 2009-16 SCC 785 (C.K. Thakker and D.K. Jain, JJ.)

Co-Ordinate Bench Decisions also Should be Referred to a Larger Bench If Difference

In Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767, it is held as under:

• “8. .. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. ….” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.) 

In Sundarjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, AIR 1991 SC 1893, it is observed as under:

• “One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.” (Quoted in: U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728 ; 2012-7 SCC 1.)

In State Through Central Bureau Of Investigation v. Hemendhra Reddy, 2023-16 SCC 779 (Surya Kant, J.B. Pardiwala, JJ.), it is said as under:

• 81. We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.”

The Apex court referred Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1

In Mahadeolal Kanodia v. Administrator General of W.B. [AIR 1960 SC 936 : (1960) 3 SCR 578] our Apex Court pointed out as unser:

• “19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions.

CONTRARY TO THE LAW DECLARED BY THE APEX COURT; Pareed Pillai v. Oriental Insurance Co. Ltd., 2019 AIR Ker 9 ; 2018 4 KLT 792 (Hrishikesh Roy, P.R. Ramachandra Menon, A.K.Jayasankaran Nambiar, Anil K.Narendran, Devan Ramachandran, JJ.)

HAD NOT TAKEN NOTE OF A BINDING CONSTITUTION BENCH DECISION; BUT FOLLOWED A LATER DECISION. Kottukal Konam Hindu Nadar Mahajana Sanm v. P. Kunjukrishnan Nadar AS 615/2000 Decided On : 09-04-2010

EXCEPT IN COMPELLING CIRCUMSTANCES EARLIER BENCH CAN BE SAID TO BE PER INCURIAM

Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier  coordinate bench.

SALMOND: Lower Court Can Pick And Choose:  Salmond on Jurisprudence a lower court can pick and choose between two conflicting decisions of the same court on the same question of law. P. A. Thomas v. Authority Under the Minimum Wages Act   2008 1 KHC 800;  2008 1 KLT 858 (S. Siri Jagan, J.). Read as under:

“10. Salmond on Jurisprudence deals with the question of choosing between conflicting decisions of the same court by a subordinate court as follows:

• “(4) Inconsistency with earlier decision of higher court. it is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
• (5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appeal and Divisional Court and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported-or are not reported-it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict wit the old, it is given per incuriam and is not binding on a later court.
• Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of it own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.
• Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”