Divergent Decisions of COEQUAL BENCHES and Doctrine of PER INCURIAM

Saji Koduvath, Advocate, Kottayam

Abstract

•• The General Law in India: Judgment is rendered in ignorance of an earlier decision of a co-equal (coordinate) Bench will be ‘per incuriam‘. Such decisions will not have any precedential value or binding force on any subsequent decision. (Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481).

•• The Full Bench Decision of the Kerala High Court: The Kerala High Court, in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB), held that where there is a direct conflict between decisions of the SUPREME COURT rendered by Benches of co-equal strength, the later decision is to be followed – having regard to the binding force of Supreme Court decisions under ARTICLE 141 of the Constitution.

•• A close reading of Raman Gopi indicates: Kerala Full Bench Decision Did Not Consider the Effect of Divergent Decisions of Co-Equal Benches of HIGH COURTS (and only that of SUPREME COURT).

•• Criticism of the Full Bench Decision:
• 1. Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.): The observations are obiter dicta.
• 2. Bindu v. State of Kerala, 2014-4 KHC 772; 2015-1 KLT(SN) 5 (Dama Seshadri Naidu, J.):
This school of thought is fallacious.

Part I

What is ‘Per Incuriam‘

‘Incuria’ literally means carelessness. In practice ‘per incuriam’ appears to mean ‘per ignoratium’ (State of U.P. v. Synthetics and Chemicals Ltd. ,T.K. Thommen, R.M. Sahai, JJ. 1991-4 SCC 139).

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

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

In Halsbury’s Laws of England (4th Edn. Vol. 26, pages 297-98, para 578), per incuriam has been explained as under:

“A decision is given per incuiam when the court has acted in ignorance of a previous decision … or when the decision is given in ignorance of the terms of a statute or rule having statutory force.”
(Quoted in: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; Bajaj Alliance General Insurance Company Limited vs. Rambha Devi, (2025) 3 SCC 95)

The following decisions make it clear that the doctrine of per incuriam is attracted where a judgment is rendered in ignorance of the terms of a statute or of a previous binding decision

M/S Santosh Associate Private Limited v. Haryana State Industrial and Infrastructure Development Corporation Ltd., 2026 INSC 872
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, (2026) 5 SCC 201
State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639
Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312
Bore Gowda v. State of Karnataka, (2000) 10 SCC 260
Punjab Land Develop. & Reclamation Corp. Ltd. v. Labour Court, (1990) 3 SCC 682
Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; (1989) 1 SCC 101
Morelle Ld. vs. Wakeling, , (1955) 2 QB 379 (CA)
Huddersfield Police Authority v. Watson (1947) 2 ALL ER 193
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718: (1944) 2 All ER 293
Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., , (1941) 1 KB 675 (CA)

Rule of Per Incuriam Applies Strictly to Ratio Decidendi; Not to Obiter Dicta

The doctrine of per incuriam applies strictly to the ratio decidendi and does not apply to obiter dicta. See:

Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201
Bajaj Alliance General Insurance Company Limited v. Rambha Devi, (2025) 3 SCC 95;
Career Institute Educational Society Vs. Om Shree Thakurji Educational Society , (2023) 16 SCC 458
Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1;
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandigarh, (1990) 3 SCC 682).

In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 (Krishna Iyer, J.), while considering binding precedents, held as under:

“7. … We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.” (Quoted in: Bajaj Alliance General Insurance Company Limited v. Rambha Devi, (2025) 3 SCC 95)

A Judgment Rendered Per Incuriam is Not Binding

It Does Not Have a Precedential Value

In Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201, it is held as under:

“A decision rendered per incuriam denudes the decision of precedential value. Such a decision would not be binding as a judicial precedent. A co-ordinate Bench can disagree with it and decline to follow it.”

See also:

Glass Trust Company LLC v. Byju Raveendran, (2025) 3 SCC 625
Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481
State Through Central Bureau of Investigation v. Hemendhra Reddy, (2023)16 SCC 779
The Commissioner of Income Tax, Jaipur v. Prakash Chand Lunia, (2024) 1 SCC 204
Chauharya Tripathi v. L.I.C.of India, (2015) 7 SCC 263
Amrit Das v. State of Bihar, (2000) 5 SCC 488.

Failure to Follow Earlier Decision Renders a Judgment Per Incuriam

A judgment may suffer from the vice of per incuriam for failure to consider a binding precedent in two ways:

(i) where a subsequent court completely fails to consider an earlier binding precedent; or
(ii) even where the subsequent judgment makes reference to the binding precedent, if it fails to apply an imperative or controlling portion of that precedent.

That is, the doctrine of per incuriam can apply to specific “part of a decision“. To sustain a plea of per incuriam, it must be shown that the “reasoning” of that particular portion in the judgment under consideration is “erroneous” for failing to consider or apply the relevant part of the binding precedent.

Note: In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356, the Supreme Court explained that ‘per incuriam‘ may strike a part of the decision. It reads: “It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.”

Courts Cannot Refuse Binding Judgments Citing minor Differences

In Official Liquidator v. Dayanand, (2008) 10 SCC 1, it is emphasised as under:

“70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so.”

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. …. 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.”

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

“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.

Part II

Decision in Ignorance of the Judgment of Coordinate Bench is also Per Incuriam

In Halsbury’s Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
See: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; (2011) 1 SCC 694.

In National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680, it is held as under:

“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 co-equal or larger Bench. There can be no scintilla of doubt tha an earlier decision of co-equal Bench binds the Bench of same strength.” (Referred to in: The Karnataka Lokayuktha Bagalkote District, Bagalkot v. Chandrashekar: 2026 INSC 31; 2026 KHC(Online) 6021; 2026 KLT(OnLine) 1013).

Per Incuriam Decisions have No Precedential Force

A subsequent Bench of co-ordinate strength is bound by the Ratio Decidendi of an earlier co-equal Bench; a contrary decision rendered in disregard of that binding precedent is per incuriam and cannot claim binding precedential force. In Jai Singh v. Municipal Corporation of Delhi, 2010-9 SCC 385, it was observed, as regards the legal effect of the divergent coordinate bench decisions, as under:

“23. … 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.”

This principle is also laid down in the following decisions:

Adarsh Dinkar Sontakke v. Navodaya Vidyalaya Samiti, 2026 INSC 865
Vanashakti v. Union of India, 2026 INSC 761; 2026 KLT(Online) 439
Parveen Kumar v. State of Haryana, 2026 KHC(Online) 6496
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, (2026) 5 SCC 201
Bajaj Allianz General Insurance Co. Ltd. v. Rambha Devi, (2025) 3 SCC 95
Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481
Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1 (Constitution Bench)
Official Liquidator v. Dayanand, (2008) 10 SCC 1.
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

From the above, it can be concluded:

First: A (basic) decision of a High Court or Supreme Court, even if (appears to be) erroneous, has the binding force on the subsequent co-equal or lesser Benches.
Second: A decision of a High Court or Supreme Court, will be per incuriam if it ignored a binding (basic) decision having precedential value on any subsequent co-equal or lesser Benches.
Third: A mere reference to a binding precedent does not, by itself, prevent the ills of per incuriam. Where the subsequent decision fails to consider and apply the controlling or imperative principle laid down in that precedent, and that omission renders the relevant part of its reasoning demonstrably wrong, then the decision may be treated as per incuriam.

A Coordinate Bench Should Refer to Larger Bench

Judicial discipline envisages that a coordinate bench follow the decision of the previous coordinate bench. If a coordinate bench does not agree with the principles of law enunciated by an earlier bench, the matter has to be referred to a larger bench (through the Chief Justice). See:

Adarsh Dinkar Sontakke (Minor) v. Navodaya Vidyalaya Samiti, 2026 INSC 865
Vishnu Vardhan @ Vishnu Pradhan v. The State of Uttar Pradesh, 2025 KHC (Online) 6630 ; 2025 KLT (Online) 2486
S. Kasi v. State Through The Inspector of Police Samaynallur PS, (2021) 12 SCC 1
U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj, (2007) 2 SCC 138
Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673)
State of Punjab v. M/s. Devans Modern Brewaries Ltd, (2004) 11 SCC 26
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1
Tripura v. Roop Chand Das (2002) 7 SCC 273

Part III

Full Bench of the Kerala High Court: Raman Gopi v. Kunju Raman

The Full Bench of the Kerala High Court, in a reference in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (Pius C. Kuriakose, T.R. Ramachandran Nair & P.S. Gopinathan, JJ.), 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. The following two reasons were pointed out –

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.

The Full Bench (Raman Gopi) pointed out that an earlier Full Bench of the High Court, in Joseph v. Special Tahsildar, 2001 (1) KLT 958, had held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Supreme Court, the decision later in time would be binding.

Principles in Raman Gopi Misapplied in Some Decisions

The core ratio decidendi in Raman Gopi is that even when an immediately earlier Supreme Court decision is per incuriam – for it deviated from a prior ruling – such a (per incuriam) decision must still be followed by High Courts and subordinate courts. The foundation of this principle is drawn from Article 141 of the Constitution of India.
It was further held that when a direct conflict arises between decisions of co-equal Benches of the Supreme Court of India, High Courts and subordinate courts cannot declare that a Supreme Court decision is per incuriam.
It is definite that those decisions that relied on Raman Gopi, without noticing its restricted scope — that it applies only to Supreme Court precedents rendered by co-equal Benches (and not to High Court precedents given by co-equal Benches) — have misapplied the Full Bench verdict.

Decisions that Referred Raman Gopi

Raman Gopi is referred to (while dealing with the effect of decisions of co-equal Benches) in the following cases:

M/s. M.D. Esthappan v. Reserve Bank of India, 2025 KER 20437, (Gopinath P., J.)
Madhivanan v. Dhanaraj, 2024-3 MLJ 671, 2024-4 CTC 225; 2024-3 LW 33
Prathyasa Mental Health Counselling Forum v. State of Kerala, 2021-1 KLT(SN) 21 (S. Manikumar, Shaji P. Chaly, JJ.)
Sulochana Gupta v. RBG Enterprises Pvt. Ltd., 2020 KLT(Online) 1051 (S. Manikumar, Shaji P. Chaly, JJ.)
Papaiah Alias S.R. Papi Reddy v. P. Nagaraja Reddy, 2019 3 AIR(Kar)(R) 274
Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018-1 KHC 412; 2018-2 KLT 553)
Sunitha Venkatram v. Divya Rayapati, 2015 2 MLJ(Cri) 385 (S. Manikumar, J.)
Valsamma v. Binu Jose, 2014 ACJ 977; 2014 1 KHC 207; 2014 1 KLJ 388; 2014 1 KLT 10 (S. Siri Jagan & K. Ramakrishnan, JJ.)

Principles in Raman Gopi (SUPREME COURT‘S Later co-equal Bench Decision will Prevail) Applied

Raman Gopi is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 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. …”

The principle established in Raman Gopi—that a later SUPREME COURT decision, taking a contrary view from an earlier decision, prevails—has been applied in the following decisions:

M/s Asm Traxim Pvt Ltd v. Union of India, 2025-11 ADJ 500; 2025-5 AllLJ 100 (Sanjay Kumar Singh, J.)
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 (J.J. Munir, J.)
XXXXXXXXXX v. State of Kerala, 2022-5 KLT 636 (Kauser Edappagath, J.),
Daisy M.P. v. State of Kerala, 2020-3 KHC 115; 2020-2 KLT 639 (Sunil Thomas, J.)
Wilson v. Vasantha Kumar, 2015 ACJ 1524; 2013 4 ILR(Ker) 893; 2013 3 KHC 764; 2013 4 KLT(SN) 121 (S. Siri Jagan & K. Ramakrishnan, JJ.)

Is the Full Bench Decision, Raman Gopi, “Obiter” or “Per Incuriam”?

Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) distinguished Raman Gopi. It was pointed out that Raman Gopi was rendered in a reference matter where the lesser Bench failed to consider the decision of a prior Larger Bench. And, it was held that the observations in Raman Gopi regarding the effect of not considering an earlier decision of a co-equal Bench were obiter. It is observed in Kumari Alias Mary Francis as under:

6. …. 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”. ….

Kumari Alias Mary Francis held –

8. ” … 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 learned Single Judge reached this compelling conclusion, relying firmly on two landmark Constitution Bench decisions of the Apex Court:

1. Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752, and
2. Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1.

Is the View ‘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.):

“When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgment of the previous bench will have binding effect.”

With respect to the judicial opinion that the ‘latest judgment should prevail’, Dama Seshadri Naidu, J., emphasised as under:

“46. Viewed from another legal perspective, precedentially, one prevalent school of jurisprudential thought is that in a series of judgments of co-equal benches, in the face of cleavage or conflict of judicial opinion, the latest judgment should prevail. This school of thought, I am afraid, is fallacious. In fact, on the said issue, though has not been decided by any definitive pronouncement of the Hon’ble Supreme Court under Article 141 of the Constitution of India, guidance is available in the form of Full Bench judgments and also Larger Bench pronouncements of various other High Courts.”

The court relied on the following decisions:

1. S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi, 2005(1) ALT 412 (D.B.). It is held in this decision -“However, while adopting cautious approach in case of conflicting Judgments of the Apex Court of co-ordinate Benches cited before the Courts, Courts may have to carefully scrutinize whether reasons had been recorded while laying down the ratio and whether the concerned statutory provisions had been considered and whether the other prior decisions or the binding decisions also had been referred to, if any available on the point by the Court while rendering such Judgments.”
2. Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81. It is held in this decision -“It has eventually held that in case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed, except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding.”

Part IV

How should a HIGH COURT deal with Divergent Precedents Rendered by Co-Equal Benches of (i) the HIGH Court and (ii) the SUPREME Court

The Full Bench decision, Raman Gopi, is not relevant in this matter. A close reading of this decision (Raman Gopi) reveals the following:

The Full Bench (in Raman Gopi) did not examine the status of divergent decisions rendered by co-equal Benches of the High Court, as subsequently pointed out in the decision Kumari alias Mary Francis.
Joseph v. Special Tahsildar, 2001 (1) KLT 958 (FB), held—when two decisions of co-equal Benches of the Apex Court are conflicting on a matter, the decision later in time is binding. This decision is not used in Raman Gopi for the purpose either to follow or to dissent.
Such a citation to Joseph v. Special Tahsildar is mere surplusage. Consequently, the observation in Raman Gopi—that, where two decisions of co-equal Benches of the Apex Court are in conflict, the decision rendered later in point of time is binding—stands as a redundant assertion.

Divergent Decisions – Legitimate Course to be adopted by the the HIGH COURT

When dealing with conflicting precedents, what course should a High Court or trial court adopt if:

(i) there are divergent coordinate decisions of the High Court or the Supreme Court, and
(ii) the later decision appears to be legitimate and reasonable?

The answer would be –

if the coordinate Benches of the HIGH COURT had rendered divergent decisions — refer the matter to a larger bench (through Chief Justice); and
if the coordinate Benches of the SUPREME COURT had rendered divergent decisions — follow previous precedent (treating the later Co-equal Bench decision as per incuriam).

Following decisions support the view — “Where a co-equal Bench of the High Court finds divergent views in earlier co-equal Bench decisions, it must refer the matter to a Larger Bench (through Chief Justice)”:

P. Suseela v. University Grants Commission, AIR 2015 SC1976; 2015-8 SCC 129 (T.S. Thakur, R.F. Nariman, JJ)
State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023-16 SCC 779
U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728; 2012-7 SCC 1
Hardeep Singh v. State of Punjab, 2009 AIR(SC) 483; 2009-16 SCC 785.
Official Liquidator v. Dayanand, (2008) 10 SCC 1;
Sundarjas Kanyalal Bhathija v. The Collector, Thane, AIR 1991 SC 1893
Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767,

How TRIAL COURTS should Legitimately Deal with Divergent HIGH COURT or SUPREME COURT Precedents Rendered by Co-Equal Benches

The trial courts (Munsiff Courts, Sub Courts, Magistrate Courts, District Courts, etc.) are bound to follow previous “binding precedent”. If there is divergence among precedents rendered by co-equal Benches, a question may come – How to determine this previous “binding precedent” from among the precedents rendered by co-equal Benches?

To answer the question the following matters require consideration –

1. Ratio Decidendi: The ratio decidendi of the High Court or the Supreme Court decision alone constitutes a binding precedent.
2. Per Incuriam: If such a ratio or decision is per incuriam, for having failed to consider the effect of an earlier decision of a co-equal Bench, it cannot have any binding force or precedential value.

Three lines of approach are seen adopted by the trial courts (or left open?) for handling such divergent Coequal-Bench precedents:

(a) follow the decision that appears to have laid down the law more accurately and comprehensively.
(b) follow the earlier decision as binding treating the subsequent decision as “per incuriam”.
(c) follow the latest decision.

First View: Apply the Co-Equal Bench Decision that APPEARS to Lay Down the Law Accurately

The Full Bench of the P & H High Court, in M/s Indo Swiss Time Limited v. Umrao, AIR 1981 P & H 213, held that the decision that appears to lay down the law more accurately and elaborately must be applied when there is a conflict between the two decisions of equal benches which cannot possibly reconcile. [Followed in: Ganga Saran v. Civil Judge, Hapur, Ghaziabad, AIR 1991 All. 114 (B. P. Jeevan Reddy, CJ., V. N. Khare, V. N. Mehrotra, JJ.)]. Also See:

T.P. Naik v. UOI : AIR 1998 MP 83
Indo Swiss Time Limited v. Umrao : AIR 1981 P&H 213
Amar Singh Yadav v. Shanti Devi : AIR 1987 Pat 191

Second View: Apply Earlier Decision among the Co-Equal Bench Decisions, Treating Second Decision Per Incuriam

The General Law on this point is clear from the Constitutional Bench decision of the Supreme Court, in Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752; 2005-2 SCC 673, summed up the legal position, inter alia, in the following terms:

“The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.”

Another Five Judge Bench also in National Insurance Company Limited v. Pranay Sethi, AIR 2017 SC 4973; 2017 16 SCC 680, held that a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

Central Board of Dawoodi Bohra Community v. State of Maharashtra is followed in a large number of decisions of our Apex Court including the following larger Bench decisions:

Aligarh Muslim University v. Naresh Agarwal, 2025 6 SCC 1 (Seven Judge Bench)
Property Owners Association v. State of Maharashtra, 2024-18 SCC 1; 2024-11 SCR 1 (Nine Judge Bench)
Sita Soren v. Union of India, AIR 2024 SC 1701; 2024-5 SCC 629 (Seven Judge Bench)

Third View: Follow the Latest Decision among the Co-Equal Bench Decisions

There will be no doubt, if there are conflicting decisions of courts of co-ordinate jurisdiction and the later decision if reached after full consideration of the earlier decision, it is to be preferred. See:

CIT v. Pamwi Tissues Limited, 313 ITR 137
Indian Oil Corporation Ltd. v. State of Bihar, 167 ITR 897
Kunhayammed v. State of Kerala 245 ITR 360

But, certain decisions prefer to follow the Latest Decision among the co-equal Bench decisions on a question of law that cannot be reconciled by the said co-equal Benches. See:

Govindanaik G. Kalaghtigi v. West Patent Press Co. Ltd.: AIR 1980 Kar 92 (FB) (If two decisions of the Supreme Court on a question of law cannot be reconciled and if both such Benches consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts.)
See also: Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari : AIR 1980 Bombay 341.
Cassel & Co. Ltd. vs. Broome [1972] 1 All ER 801 (House of Lords)

It is seen that it is not at all legitimate to support this view, for the following well accepted legal principles –

1. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength (National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680).
2. Our Jurisprudence treats decisions in ignorance of earlier verdicts as ‘Per Incuriam’. (Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481; Rohit Chaturvedi v. State of Uttarakhand, 2026 AIR SC 2380).
3. It is held in Bilkis Yakub Rasool v. Union of India, AIR 2024 SC 289; 2024-5 SCC 481 as under:
- “44.1. ….Incuria legally means carelessness and per incuriam may be equated with per ignorantium.
- If a judgment is rendered in ignorantiam of a statute or a binding authority, it becomes a decision per incuriam.
- Thus, a decision rendered by ignorance of a previous binding 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 is per incuriam.
- Such a per incuriam decision would not have a precedential value. If a decision has been rendered per in curium, it cannot be said that it lays down good law, even if it has not been expressly overruled vide Mukesh K. Tripathi vs. Senior Divisional Manager, LIC, (2004) 8 SCC 387 (para 23).
- Thus, a decision per incuriam is not binding.”
3. To maintain judicial consistency, per incuriam decisions cannot be be given precedence. Such supremacy will be “fallacious” and lead to “judicial chaos“.

Part V

DivergentApproaches

When applying the doctrine of precedent to conflicting decisions of co-equal Benches, High Courts across the country remain divided. Three distinct approaches have emerged:

The Earlier Decision Prevails
The Better-Reasoned Decision Prevails
The Later Decision Prevails.

A uniform, nationally settled consensus on this issue is yet to be established.

Conclusion

When dealing with divergent precedents of coordinate Benches, the proper course depends on the level of the court and the authority that issued the conflicting judgments:

For High Courts:
- Conflicting High Court Precedents: The High Court cannot choose between divergent coordinate decisions of its own Court. It must refer the issue to a larger Bench through the Chief Justice to maintain judicial discipline.
- Conflicting Supreme Court Precedents: The High Court should follow the earlier binding precedent, treating any subsequent coordinate Supreme Court decision rendered in ignorance of that earlier ruling as per incuriam.
For Trial Courts:
- They must adhere strictly to the earlier binding precedent established by the prior Bench.

End Notes – 1

Judicial Discipline Requires Co-Ordinate or Co-Equal Benches to Follow Earlier Rulings: Also see:

Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal, AIR 2025 SC 4980
State of State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639,
Jai Singh v. Municipal Corporation of Delhi, (2010) 9 SCC 385)
Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458.
Central Board of Dawoodi Bohra Community v. State of Maharashtra , (2005) 2 SCC 673),
Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356,
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682.

Other decisions – Co-Ordinate or Co-Equal Benches to Follow Earlier Rulings:

Shajitha v. Akbar, 2023-6 KHC 297; 2023-5 KLT 503 (P. Somarajan, J.)
Yudathadevus v. Joseph, 2021-5 KHC 668; 2021-6 KLT(SN) 42 (A. Badharudeen, J.)
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.)
Abdu Rahiman v. The District Collector, 2009-4 KHC 283; 2009-4 KLT 485 (K. Balakrishnan Nair & P. Bhavadasan, JJ.)
P. A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.).

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.”

End Notes – 2

History of Raman Gopi v. Kunju Raman Uthaman

In Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) while referring Raman Gopi v. Kunju Raman Uthaman, laid down the history of this Full Bench decision (Raman Gopi v. Kunju Raman Uthaman) 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.”

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 ( Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752)), 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 (Dr. Shah Faesal v. Union of India [(2020) 4 SCC 1]), 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 (Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947)), hence cannot be held to have binding precedent.”

End Notes – 3

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.), following Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], it is observed 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.”

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Divergent Decisions of COEQUAL BENCHES and Doctrine of PER INCURIAM

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