No Binding Precedent -If the Court Failed to Consider Relevant Statutory Provision, in Earlier Decision

Saji Koduvath

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No Binding Force – If Judgment failed to notice a plain statutory provision

In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 (Krishna Iyer, J.), the Supreme Court recognised that, in an exceptional case, an obvious inadvertence or oversight resulting in failure to notice a plain statutory provision may deprive a judgment of its binding precedential force. The omission must be glaring, not merely an alleged error of interpretation. The Court held as under:

  • “7. Certainty of the law, consistency of rulings and comity of courts—all flowering from the same principle—converge to the conclusion that a decision once rendered must later bind like cases. 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. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201; Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, 2025 3 SCC 95).

No Binding precedent if Earlier Decision Demonstrably Wrong

In A.R. Antulay Vs. R.S. Nayak , (1988) 2 SCC 602 the Constitution Bench of our Apex Court made the following observations:

  • “42. It appears that when this Court gave the aforesaid directions on 16-2-1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case [ State of W.B. vs. Anwar Ali Sarkar , (1952) 1 SCC 1 : AIR 1952 SC 75]. See Halsbury’s Laws of England, 4th Edn., Vol. 26, p. 297, Para 578 and p. 300, the relevant Notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn. pp. 128 and 130; Young vs. Bristol Aeroplane Co. Ltd. [ Young vs. Bristol Aeroplane Co. Ltd. , 1944 KB 718 (CA)] Also see the observations of Lord Goddard in [ Moore vs. Hewitt , 1947 KB 831] and Nicholas vs. Penny [Nicholas vs. Penny, (1950) 2 KB 466]. “Per incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle Ltd. vs. Wakeling , (1955) 2 QB 379 : (1955) 2 WLR 672 (CA).” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201).

In State of M.P. v. Narmada Bachao Andolan , (2011) 7 SCC 639:

  • “67. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201).

Subsequently, in Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd. , (2001) 6 SCC 356, it is observed as under:

  • “A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a latter case. 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, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment “per incuriam.” 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.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201).

In State of Bihar v. Kalika Kuer , (2003) 5 SCC 448, it was found as under:

  • “10…….Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways — either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201).

In Sundeep Kumar Bafna v. State of Maharashtra , (2014) 16 SCC 623, the Court expanded the definition of per incuriam in the Indian context and noted as under:

  • “19……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; 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 per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201).

In a recent decision in Shah Faesal vs. Union of India , (2020) 4 SCC 1, a five-Judge Bench of this Court reiterated that the principle of per incuriam only applies on the ratio of the case.

No Binding precedent if relevant statutory BAR was Not considered

In N. Bhargavan Pillai vs. State of Kerala , (2004) 13 SCC 21, it was noted that a judgment cannot be treated as a binding precedent, if it fails to notice a specific statutory bar.

  • “14. Coming to the plea relating to benefits under the Probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused-appellant’s plea relating to grant of benefit under the Probation Act. The decision in [ Bore Gowda vs. State of Karnataka , (2000) 10 SCC 260 : 2000 SCC (Cri) 1244] does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct.” (Quoted in: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201; Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, 2025 3 SCC 95).

Not everything Said by a Judge Constitute a Precedent

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

  • “29.2. This Court held that it is not everything said by a judge while giving judgment that constitute a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided. It is for this reason that it is important to analyse a decision and isolate from it the ratio decidendi. According to the theory of precedents, every decision contains three basic postulates:
  • (i) findings of material facts, direct and inferential;
  • (ii) statement of the principles of law applicable to the legal problems disclosed by the facts; and
  • (iii) judgment based on the combined effect of the above.
  • 29.3. This Court held that a decision (including judgment) is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. 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 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 Article 141 of the Constitution of India. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is an issue constitutes the ratio. A precedent by long recognition may mature into a stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.”

In this decision the discussion on binding precedent and per incuriam is summed up as under:

  • “34. In summation, what is binding in a judgment is the principle upon which the case is decided. The enunciation of the reason or principle on which the question before a court is decided is alone binding as a precedent. The final outcome or decision is binding between the parties only 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 constitutes a binding precedent under Article 141 of the Constitution of India. To be precise, it is the rule deductible from the application of the law to the facts and circumstances of the case which constitutes its ratio decidendi. Not everything said in the judgment or any observation made by the judge, can be said to be binding. Thus, ratio decidendi of a case is the rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him. It is the ratio which is binding on subsequent Benches, coordinate or smaller. The conclusion does not operate as a ratio decidendi.
  • 34.1. The principle of per incuriam would be attracted only when a decision is rendered in ignorance of some statutory provision(s) or a precedent binding on the court. Ordinarily, a ruling of a coordinate Bench is binding on subsequent coordinate Benches or on Benches of lesser strength. However, there is an exception to this rule. A decision which is rendered per incuriam has no precedential value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. The per incuriam rule is applicable to the ratio decidendi only and not to obiter dicta. The subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the pertinent judgments.”

No Binding precedent if relevant statutory provision was Not considered

A Full Bench of the Allahabad High Court, in Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

  • “A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

Allen in ‘Law in the Making’ said as under:

  • “Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

  • “54. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), ‘ratio decidendi’ is described as follows: “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

  • “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

  • “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT; it was held that decision was binding upon the parties, though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
  • There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

In Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, 2025-3 SCC 95, the following English decisions were referred to, to explain “Per Incurium”.

  • Young v. Bristol Aeroplane Co. Ltd., , 1944 KB 718: (1944) 2 All ER 293 —  a decision is given per incuriam when the court acts in ignorance of a previous decision of its own or of a court of coordinate jurisdiction.
  • Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., , (1941) 1 KB 675 : (1941) 2 All ER — a decision is per incuriam when given in ignorance of a House of Lords decision or a statutory provision having statutory force.
  • Bryers v. Canadian Pacific Steamships Ltd., , (1957) 1 QB 134 : (1956) 3 All ER 560 (CA) — a decision should not be treated as per incuriam simply because of a deficiency of parties or because the court had not the benefit of the best argument.
  • Canadian Pacific Steamships Ltd. v. Bryers1958 AC 485 : (1957) 3 All ER 572 — a Court of Appeal must follow its own previous decision even if it misinterpreted a House of Lords decision.
  • J. Mucklow Ltd. v. IRC, , 1954 Ch 615 : (1954) 2 All ER 508 (CA) — only cases in which decisions should be held per incuriam are those given in ignorance of some inconsistent statute or binding authority.
  • Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA)
  • Bonsor v. Musicians’ Union, , 1954 Ch 479 : (1954) 1 All ER 822 (CA) — a decision is per incuriam only when given in ignorance of some inconsistent statute or binding authority, not merely because of a deficiency of parties.
  • Morelle Ltd. v. Wakeling, , (1955) 2 QB 379 : (1955) 1 All ER 708 (CA) —  per incuriam applies where a decision is given in ignorance or forgetfulness of some inconsistent statutory provision or binding authority.

In Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, 2025 3 SCC 95, the following earlier decisions of our Supreme Court were referred to, to explain “Per Incurium”.

  • Bengal Immunity Co. Ltd. v. State of Bihar, , AIR 1955 SC 661 –while Article 141 binds all courts, it does not bind the Supreme Court itself which remains free to reconsider its judgments.
  • Mamleshwar Prasad v. Kanhaiya Lal (1975) 2 SCC 232 — a decision is per incuriam only in exceptional instances of obvious inadvertence or oversight where the judgment fails to notice a plain statutory provision, and it must be a glaring case.
  • A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 — the definition of per incuriam as decisions given in ignorance or forgetfulness of some inconsistent statutory provision or binding authority, where some part of the reasoning is demonstrably wrong.
  • MCD v Gurnam Kaur (1989) 1 SCC 101 — a decision should be treated as per incuriam when given in ignorance of the terms of a statute or rule having the force of a statute.
  • N. Bhargavan Pillai v. State of Kerala (2004) 13 SCC 217 — a judgment cannot be treated as a binding precedent if it fails to notice a specific statutory bar, and that per incuriam applies only to the ratio decidendi.
  • State of M.P. v. Narmada Bachao Andolan (2011) 7 SCC 639 — per incuriam applies to decisions given in ignorance of statutory provisions or authority binding on the court, and that the doctrine applies strictly to the ratio.
  • Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356 — per incuriam applies only in exceptional instances of obvious inadvertence or oversight, and it must be shown that some part of the decision was based on demonstrably wrong reasoning.
  • State of Bihar v. Kalika Kuer (2003) 5 SCC 448 — saying an earlier decision was rendered per incuriam is not permissible and the matter must be resolved either by following the earlier decision or referring it to a larger Bench.
  • Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623 — per incuriam in the Indian context, including that a decision can be per incuriam if it cannot be reconciled with a previously pronounced judgment of a Co-equal or Larger Bench.
  • Shah Faesal v. Union of India (2020) 4 SCC 1 — the principle of per incuriam applies only on the ratio of the case and not to obiter dicta.

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