Bifurcation of the Supreme Court of India

(By Justice K.T. Thomas, Former Judge of the Supreme Court)

There is news that a Parliamentary Standing Committee on Home Affairs of members of the Parliament criticized the Supreme Court for rejecting the demand to set up regional Benches of the Supreme Court of India. The Standing Committee decided to request the Chief Justice of India (CJI) to reconsider its earlier decision. It is heartening to note that the Standing Committee was apprised of the fact that a full Court of all Judges of the Supreme Court, after due deliberations, unanimously reiterated its earlier stand that such benches would impair the unity and integrity of the country and found no justification in deviating from the earlier stand.

I was one of the Judges of the Supreme Court when all the Judges on two different occasions considered the matter. On both occasions, the Judges, after detailed discussion, unanimously decided against bifurcating the Supreme Court of India. On both such occasions, I could not support the plea that a Bench of the Supreme Court should not be set up in South India despite my own home is in the southern most State of India and the present seat of the Supreme Court is in one of the northern most part of India. On both occasions other Judges hailing from southern States also did not favour setting up of benches of Supreme Court at other places. We were told that this subject was considered on earlier occasions also by the judges of the Supreme Court and on all such occasions, they resolved unanimously that bifurcating Supreme Court of India would be detrimental to the nation.

The Committee of Members of Parliament headed by Pranab Mukherji is reported to have disapproved the reasoning of the judges that setting up of the regional benches would impair the unity and integrity of the court. The only reason advanced in favour of such benches is that it would provide "people of the far-flung areas to get accesses to the apex court." No statesman shall decide on such a vital issue as bifurcation of the nation's apex judicial institution merely on the ground of a solitary advantage. There is hardly an issue for which there could at least be one advantage. Statesmanship requires that all the pros and cons, all the merits and demerits, particularly of a' vital issue should be weighed in the balance before a decision is taken to act when the demerits of the issue outweighs the merit. A statesman should not lean in favour of the larger demerits just for achieving the lesser merits.

Art.130 of the Constitution of India declared that the seat of the Supreme Court shall be Delhi, and by way of empowering the President to have its seats elsewhere in the country the alternative is also provided in the Article. It reads: "The Supreme Court shall sit in Delhi or in such other place or places, as the CJI may, with the approval of the President, from time to time appoint". Thus it is not necessary that the seat of the Supreme Court shall be at Delhi. It could be at Hyderabad or Kolkotta or Mumbai or Chennai or Bangalore or even Cochin or any other place. In the absence of such a provision, the Supreme Court could have become dysfunctional in an emergency situation when it could not operate at Delhi due to the foreseen or unforeseen eventualities. I need not describe such situations as anyone can guess it. During our discussion, I said that I did not mind the Supreme Court being set up at any place in the South or any centrally placed location, but I am unable to conceive a Supreme Court of India scattered in different parts of the country.

The Constitution provides singular office for a number of vital functions of the nation. Art.52 stipulates that there shall be one President of India, Art.63 allows only one Vice President of India, and Art.74 envisages only one Prime Minister for the whole Nation. Art.124 declares that there shall be only one CJI. Art.148 contemplates only one Comptroller and Auditor General of India. Art.76 enjoins that there shall be only one Attorney General for India. (There was a proposal to appoint Additional Attorney Generals, but the Central Government accepted the legal opinion tendered by M.C. Setalwad, India's first Attorney General and a great jurist, that the said constitutional post cannot be and shall not be multiplied.).

Art.141 mandates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. As 142 conferred special power on the Supreme Court to make such order as is necessary for doing complete justice in any cause pending before it. Art.141 directs that all civil and judicial authorities shall act in aid of the Supreme Court.

The above survey portrays how the Constitution makers conceived of the singular edifice of the institution of the Supreme Court of India. The Bar of the Supreme Court grew and developed and has now been crystallized into one homogenous unit. There is only one Supreme Court Advocates' Association and only one Supreme Court Advocates' on-Record Association. Thus in the same manner as the Indian Parliament, the Supreme Court of India has acquired the majesty retaining the homogeneity of the Apex Court reflecting the uniqueness of the unity of India. All the Judges of the Supreme Court meet together every morning, they exchange their views together (except matters pending judicial decisions) and thus they endeavour to maintain the special uniqueness of the institution.

What might happen if the Supreme Court has other benches, at least in all the four zones of India should be a matter of serious concern for the people of India. Even looking into the recent past, different benches of the Supreme Court of Pakistan resulted in utter confusion and chaos, particularly on an issue concerning a former Prime Minister, Navas Sheriff, one bench at one place overruling the orders of another bench at another place and competing with each other in an ugly zeal to overshow which bench is mightier than the other. History should be the lesson for us also.

The Supreme Court of India was first established soon after the integration of different States into the Union of India followed by the great event of making the Constitution of India. That was a time when different States could have claimed that benches of the Supreme Court should be established at least at zonal levels. That was a time when reaching Delhi was an uphill task for a citizen from far-flung zones. Communication facilities were miserably far less. Fifty years elapsed during which Supreme Court of India functioned very efficiently while retaining its seat at th'3 national capital itself. During those fifty years accessibility to Delhi became far quicker and more efficacious. Means of communication with the Supreme Court lawyers became much easier and cheaper. Information technology helped in fostering closer contacts between Supreme Court lawyers and their counter parts at far-flung areas much more frequently. Larger number of lawyers from different States became Supreme Court lawyers. Why at such an improved situation the politicians apply pressure to fracture India's majestic acme judicial institution.

The concept of High Court was that it is the highest court of the land. Constitution has conferred widest powers on the High Courts, even greater powers than the Supreme Court itself, in the matter of entertaining the grievances of the litigants. Art.226 was incorporated with that objective. Art.136 requires the Supreme Court to grant special leave if a case was found fit enough to be entertained by the Supreme Court. It is a known fact that out of hundred special leave petitions filed in the Supreme Court, leave would be granted only in a very small percentage of cases. Thus the High Courts were envisaged and shaped by the Constitution makers to hear and deal with and finally decide all the grievances of the citizens. Supreme Court was shaped mainly for uniforming the law laid down by different High Courts at different times. The fathers of the Constitution did not intend to make the Supreme Court a court of appeal and that was why a filter of special leave was fitted at the gate providing many tiny gauzes in the judicial sieve. It was with all the above reasoning that the full court of all the judges of the Supreme Court, time and again disfavoured to bifurcate the Supreme Court. The later decisions were taken by the Supreme Court equipped with the advantage of the views of Judges drawn from all the zones of India. They had the added advantage of not being influenced by the thought of appeasing the voters.

In my opinion, the decision which the politicians made for requesting the Supreme Court to reconsider the repeatedly reiterated stand that the Apex Court shall not be fractured needs reconsideration.

Sivasakthi Co-operative Housing Society Ltd. v. Swaraj Developers - 2003 (2) KLT 503 - Casus Omissus?

(By K.G. Balasubramanian, Advocate, Ernakulam)

Their lordships have referred to three contentions raised by counsel (para 4). To me, it appears that their lordships have bestowed their attention only on the first two contentions and really not on the 3rd one. Their lordships do not appear to have referred to or decided the scope/meaning of the phrase "other proceeding(s)".

CPC does not define proceedings. It refer"? to procedure. It also refers to "proceedings" at a number of places. For example, S.11 Explanation VII, Ss. 13(c), 24,25,35A, 89(2)(a), 94,99, 99 A, 141,144,146,148A, 153,0.24 R.4,0.26 Rr.10(3) and 18(A), 0.32A R.1,0.54 etc.

Civil Rules of Practice does define "proceeding". It also refers to "form of proceedings", "interlocutory proceedings", "incidental proceedings", "proceedings in execution" etc. We regularly hear of "proceedings of Court and "proceedings of the house".

What are "proceeding" and "other proceeding"? "Other proceeding" contemplated by S.115 takes in, according to me, something more than "proceeding". Like "interlocutory proceedings", "incidental proceedings", "proceedings in execution" etc. We know that grant of an order of interim injunction/attachment or appointment of a commissioner does not decide a case finally (?) May be, fate of clients and litigation do depend a great lot on such orders. May be, there are some areas where law cannot help a litigant.

In 2002 (3) KLT 493, his Lordship Basant, J. has considered the question. His Lordship declined to read the word 'interlocutory' into S.115(1). After observing that "all available indications compellingly point to that conclusion - that only final orders stricto sensu will be revisable" (Para 12), his Lordship proceeded to observe that "Instances are legion - and it is not necessary for me to enumerate them here, where this Court will have to invoke the revisional powers subject to the mandate of the amending proviso" (Para 18). But according to me, his Lordship did not advert to the phrase 'other proceedings' in the perspective of the total need to set right jurisdictional errors committed by subordinate courts - whether it be in excess or failure. Of course, there are final orders and interlocutory orders. But in the context of the necessity to render immediate justice - final or otherwise - a narrow interpretation of term "proceeding" or "other proceeding" is not in the interest of litigants and system of administration of justice.

We come across appealable "orders". Right of appeal being a substantive one, the Legislature has provided for S.104 and O.XLIII CPC not for the sake of record, but because it thought it fit to restrict the right of appeal only in the case of "orders" which seriously and finally affect the rights of litigants. 22 types of orders are made specifically subject to appeal. They are all final orders. Can appellate orders in all these cases be challenged under S.115, going by his Lordship's dictum? Most of them Yes, and some of them No.

I hasten to remind myself of the authoritative observation of the Apex Court that a litigant may seek other remedy if available under statute. I feel it may have an opposite effect. Given the present norms of court fee and amended filing procedure, that, according to me, will deter a good number of genuine litigants. It would also lead to a situation where the Hon'ble High Courts will be flooded with writ petitions under Art.227. Can the Hon'ble High Court declare a dividing line between final and interlocutory orders in such proceedings? Will not the Hon'ble High Court be justified in ruling that such orders can be challenged in regular appeals from the decree in the suit/proceedings?

Justice delayed is justice denied. Is a litigant to be compelled to prosecute a long drawn appeal relying on S.105 CPC and the mercy of an Appellate Judge to appreciate "any error, defect or irregularity in any order, affecting the decision of the case"? And an appeal against a remand order? And a second trial? Considering the life of appeals in Indian Courts, such a course would lead to very unjustifiable and bitter consequences. An end has to be put to some cases, as neither clients nor courts are happy about keeping a case open for generations. The system of administration is meant for rendering justice, for social stability and equilibrium. Does any single client want his case to become a pan of history, for coming generations to admire or abhor? Does any litigant desire to nominate a successor to his litigation? All this at a time when presiding officers are judged by points earned by them for disposing cases - Suit or petition or whatever.

The Hon'ble High Court has been benevolent and justice oriented in exercising revisional jurisdiction all these decades. May be, on a few occasions that was based more on compassion, equity, good conscience and fairness than on jurisdictional errors/omissions.

I would recall, at this juncture, the words of a senior Judge of the Hon'ble High Court who was pleased to observe in a tricky situation, in a pleasant, but firm, manner: "We are here to do justice". Can it be done now? Is it possible now?

So, friends, let us do something about it.

Gujarat Model - Another Perspective!

(By K.G. Balasubramanian, Advocate, Ernakulam)

My humble applause to Justice M.R. Hariharan Nair (Retd.). His Lordship's words have come not a day too late. His Lordship has spoken out on behalf of many. But, may I say with respect, Gujarat Model, however glorious it may sound, may prove to be counter-productive in a long run, in as much as discharge of the divine duty of dispensing justice should not be at the physical/mental cost of the1 Bar and Bench.

I am not the one to comment on the labyrinth of vacation and the typical attitude of the Keralite who looks up the daily newspaper only to know whether it is a holiday. Holidays do serve their purpose - earliest recorded one being of 6 days labour and Sunday holiday. Judges and advocates do have to have their moment of/for relaxation.

To a sincere and successful advocate, the concept of holiday is an anathema. An unexpected holiday throws his entire schedule out of gear. Postings of cases in Courts are disarrayed. Clients coming from far and near are put in despair. Time does not wait for anyone.

Mid summer vacation is opposed to the constitutional concept "to secure to all its citizens: Justice, social, economic and political". Gone is the era of the Raj. In its place we have the era of the Indian bourgeoisie. Comparing the vacation system of courts to that of schools and colleges is, as his Lordship has hinted, out of place. It may not be possible to do away with mild-summer vacation all of a sudden. The politico-legal Culture and white-collar way of doing things in India may not be able to absorb the impact of sudden death of midsummer vacation. May be, we can do it in a phased manner.

While espousing the sentiments expressed by his Lordship, may I opine, hopefully without opening up Pandora's box, that mid-summer vacation be divided and spread over? Like, for example, 7 days at regular intervals, which may preferably overlap other public holidays. Then, we won't have to take away those holidays. They just get merged. As for litigants and advocates, the concept of vacation sittings is something to think twice about, despite best judges being ordained to discharge vacation duties and their putting in the best efforts. Past experience of vacation sittings would show that more is required. Two Hon'ble Judges are ordained to discharge the functions of 26 judges (in the Hon'ble High Court) during midsummer vacation. That is taxing them too much. By providing for short vacations, the strain on judges and advocates can be reduced to a great extent. Continuity of thought in legal minds need not be broken.

The practical reasons for the above, I am sure, will be shared by a good number of my colleagues. The present day legal man has to be a pleader, a lawyer, a solicitor and an advocate, all rolled into one. Division of functions of an advocate is a thing of the past. Successful advocates, except a chosen few, normally work 7 days a week. They do not have time for social/cultural/family activities. I am not forgetting the more blessed among my colleagues who do find time for their friends and families. Let me not examine the parameters of success now.

Another reason which prompts me to write these few lines is the fact that advocates do not have any leave facility, but judges and other servants have - privilege leave, casual leave, half-pay leave, etc. An advocate has to make immense sacrifice in his personal affairs in order to truthfully and sincerely discharge his duty fruitfully. Marriage, birth and/or death have to take second place on many occasions.

His Lordship has restricted to docket explosion and the partial(?) failure of the system of tribunals, courts, adalats etc. Litigation is part and parcel of every civilized society. The paralegal system comprising of tribunals and adalats will not really serve the purpose of securing justice, social, economic and political, in as much as such exercises benefit only a few in isolated spheres. Whichever alternate system is set up, there are bound to be situations which can be resolved only by full-fledged advocates and the judiciary. Considering the stupendous increase in population and litigation, faster access to justice will only be more and more in demand. The demand is definitely outweighing supply.

As regards the cost factor in establishing more courts, that should not be an excuse to the Government. Securing justice is a constitutional obligation. The litigant has to pay court fee. It is an affront on the Constitutional concept, after five decades. The citizen has to pay one tax or another on almost every commodity he has to have. Governments have been innovative in inventing more and more avenues of taxation, on more and more commodities and services. At the same time, its funds are not properly managed or accounted. We come across reports of is management/defalcation of public money by public servants regularly, the latest one being of currency kept in sacks in many offices all over the State. If the Government becomes professional in managing its affairs, with more emphasis on accountability, I am sure the eternal cry of paucity of funds can be avoided. If the Government cannot look after its money, why should litigants and courts suffer? Should we not examine how much of the revenue earned as court fee and batta is pooled back to aid the cause of justice? We have to remind ourselves that the Hon'ble High Courts are flooded with Writ Petitions only because many public servants show scant respect for rule of law and less understanding of law, IAS/IPS notwithstanding. Should not the executive educate and compel its labour force to serve, "without fear or favour, affection or illwill"? Ignorance, inefficiency, inaction and callousness of public servants alone compel clients to move the Writ Court.

If I may reminisce, with the reader's permission: I had the opportunity to voice some what similar sentiments in 1991 (1) KLT Journal 46. The basic need is the optimum utilisation of the system, however fair or foul a cause might be. There, advocates and judges have a pivotal role. If the client insists on service, an advocate has to oblige. Foul cases should get the treatment they deserve, in the hands of both the judges and the advocate. Of course, an advocate cannot act as a Judge of his client's case. But, how many advocates are prepared to convince/ dissuade a prospective client against a misadventure? How many will advise in favour of a truce?

One is happy at the thought that the executive cannot thrust a holiday on the High Court and subordinate courts. Very wisely done by our constitutional fathers. At the same time, should the executive be given the discretion to declare holidays, in the name of the Holy or Unholy?

The Incuria Rule - Its Purport And Purview

(By O.V. Radhakrishnan, Advocate, Ernakulam)

The Latin expression per incuriam or per ignoratium means 'thorough inadvertence'. 'Incuria' means 'carelessness'. The English Courts formulated the incuria rule as an exception to the rule of precedents. The ratio decidendi of a case constitutes binding precedent. The principle of stare decisis as stated in the Halsbury's Law of England (2nd Edition) are that a decision that has been followed for a long period of time and has been acted upon by persons will generally be followed by Courts of higher authority than the Court establishing the rule, eventhough the Court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. It is subject to the rider that the Supreme Appellate Court will not shrink from overruling a decision or a series of decisions which establish a doctrine plainly outside the statutes and outside the common law. The rule of 'stare decisis' in Corpus Juris Secundum is stated as a principle of law which has become settled by a series of decisions generally is binding on the Courts and should be followed in similar cases. The exception to the above rule is that "previous decision should not be followed to the extent that grievous wrong may result; and accordingly the Courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous". In 'Precedent in English law' by Rupert Cross and J.W. Harris (4th Edition), the meaning of stone decisis is given as stare rationibus decidendis ('keep to the rationes decidenti of past cases'). In England it is not permissible to invite a 'fui! Court' in effect to usurp the function of the House of Lords and to reverse a previous decision of the Court of Appeal as it would go against the maintenance of the principle of stare decisis (Morelle v. Wakeling. (1955) 1 All. E.R. 708). Our Supreme Court did not apply the doctrine of stare decisis in the decision in Maktul v. Manvhari (AIR 1958 SC 918). In the decision in Raj Narain Panday v. Sant Prasad Tewari ((1973) 2 SCC 35) the Supreme Court held that the doctrine of stare decisis can be aptly invoked in situation where a different view from the view taken by the High Court over a number of years would not only introduce an element of uncertainty and confusion, but also would have the effect of unsettling transactions which might have been entered into on the faith of those decisions. In Kattite Valappil Pathumma v. Taluk Land Board ((1997) 4 SCC 114), Paripoornan, J., re-affirmed the principle that things which have been adjudged long ago should be allowed to rest in peace. A decision rendered long ago can be overruled only if the Court comes to the conclusion that it is manifestly wrong or unfair. In Mishri Lai v. Dhirendranath ((1999) 4 SCC 11) the Supreme Court declined to re-consider the decision in Meharban Singh's case ((1969) 3 SCC 542) invoking the doctrine of stare decisis.

The four Judge-Bench, in the decision in Jaisri v. Raj Diwan (AIR 1962 SC 83) has observed that law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. The Supreme Court accordingly held that where conflicting decisions are confronting the Bench hearing the case, the better course would be to refer the matter to a Full Bench, without taking upon itself to decide whether it should follow the one Bench decision or the other.

In our Country, the hierarchical system of Courts exists and "it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of the higher tiers". "The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system" as has been pointed out by Chinnappa Reddy, J., while delivering judgment in Assistant Collector, C. Excise v. Dunlop India Ltd., ((1985) 1 SCC 260). The doctrine of stare decisis is given constitutional status and animation under Art.141 read with Art.144 of the Constitution of India that the Law declared by the Supreme Court shall be binding on all Courts within the territory of India. It is a hanging mandate to all Courts, Tribunals and all authorities, civil and judicial in the territory of India.

The rule which was followed by English Courts is that a decision of the Court of Appeal rendered earlier upon a question of principle in ignorance of the terms of a Statute or a Rule having the force of a Statute, is binding to the Court of Appeal and the Court of Appeal should apply that rule of construction to subsequent cases. The Court of Appeal whatever be its own views is bound to abide and if the decision was wrong, the proper remedy is to go to the ultimate Tribunal, the House of Lords. Thai was the view taken in Produce Brockers Co. Ltd. v. Olimpiya Oil and Cake Co. Ltd. ((1916) AC 314) and Velazquez Ltd. v. Inland Revenue Comrs ((1914) 3 K.B. 458). The above rule was followed and applied in English, Scottish and Australian Bank Ltd. v. Inland Revenue Comrs. ((1932) AC 238) which was upheld by the House of Lords. In Perrin v. Morgan ((1943) 3 All. E.R. 187) the above principle was reinforced. In Lancaster Motor Company (London), Ltd, v. Bremith Ltd. ((1941)2 All. E.R. 11) the Court consisting of Sir Wilfrid Greene, MR, Clausone aid Godoard, LJJ., made the opening gambit at stare decisis by declining to follow an earlier decision of a Court consisting of Slesser and Romer, L. JJ. The earlier decision was given per incuriam as it was rendered in oblivion of a rule of the Supreme Court. Later, in Young v. Bristol Aeroplane Co. Ltd. ((1944) 2 AH. E.R, 293), the Court of Appeal has drawn out four classes of cases that would come up while considering the question whether or not it is bound by its previous decision or those of Courts of co-ordinate jurisdiction. The first of those are cases where the Court of Appeal finds itself confronted with one or more decisions of its own or of a co-ordinate jurisdiction which cover the question before it. In those classes of cases, the rule of stare decisis squarely applies. The second of the lot is where there is such a conflicting decision and the Court is entitled to choose between the two conflicting decisions. The third class of case is where the Court of Appeal comes to the conclusion that a previous decision cannot stand with a subsequent decision of the House of Lords. In cases falling under the third category, the Court will have to merely give effect to the decision of the House of Lords which is binding on it. The fourth class of case is where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam. Where the Court is satisfied that an earlier decision was given in ignorance of the term of a statute or a rule having the force of a statute, those cases where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covers the case before it, those cases where it has acted in ignorance of a decision of the House of Lords which covers the point are examples of decisions given per incuriam.

To understand the meaning and scope of the term 'per incuriam' one has to walk into the procession of judicial decisions. Lord Goddard, C.J., while delivering the judgment of the King's Bench Division in Huddersfield Police Authority v. Watson (1947) 2 All. England Reporter 193), has explained per incuriam to mean:-

"What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that Statute."

In the decision in Penny v. Nicholas ((1950) 2 All. England Reporter 89), the previous decision in Melhuish v. Morris (1938) 4 All. England Reporter 98) was not followed on the ground that that decision was per incuriam. In A & J Mucklow, Ltd. v. Inland Revenue Commissioners ((1954) 2 All. England Reporter 508) an earlier case of H. Collier and Sons Ltd. v. Inland Revenue Commissioners ((1933) 1 KB 488) was not followed as it was found that the opinions of the majority of the Court in the earlier case was found to be admittedly erroneous and the premise on which the case was decided was inconsistent with an authority binding on the Court of Appeal which had not been cited in Collier's case. The Incuria rule has been further explained in Morelle v. Wakeling ((1955) 1 All. England Reporter 708). In that decision the contention of the Attorney General that it is open to the Court of Appeal to disregard an earlier decision of its own or of a Court of co-ordinate jurisdiction whenever it is made to appear that the Court had not, on the earlier occasion, had the benefit of the best argument that the researches and industry of Counsel could provide was negatived. It has also been held that a decision cannot be treated as given per incuriam simply because of a deficiency of parties. In Cratchell v. Lambec (B.C. (1957) 2 QB 535), the Court held hat it is not a ground for applying the incuria rule that a point of importance had not been fully argued. In Miliangos v. George Frank (Textiles) Ltd. (1975) 1 All. E.R. 1076), it has been reiterated that a decision of a Court of Appeal will not bear the label of per incuriam merely because counsel had not cited all the relevant authorities or the case had been argued on one side only.

In Industrial Properties (Barton Hill) Ltd. and Ors. v. Associated Electrical Industries Ltd. (Ward & Co. (Letters) Ltd. and Ors., Third parties; Ward & Co. (Letters) Ltd., fourth party) (1977) 2 All. England Reporter 293), the Court of Appeal declined to follow Harrison v. Wells (1966) 3 All. England Reporter 524) as decided per incuriam because of incomplete reference during argument to the reports of Cuthbertson v. Irving ((1859) 28 LJEx 306) and that the Court was accordingly not required to follow them. In Duke v. Reliance Systems Ltd. ((1987) 2 All. England Reporter 858), the Court of Appeal declared that the doctrine of per incuriam does not extended to a case where, if different arguments or different material had been placed before it, the Court might have reached different conclusion.

In R. v. Immigration Appeal Tribunal, exp Temel ((1988) CA Transcript 344), Purchas, LJ, referring to Rahmani's case (R v. Diggins exp Rahmani ((1985) 1 All. England Reporter 1703) held that though Rahmani's case went to the House of Lords, their Lordships did not in the event, deal with the point, but disposed off the appeal on a purely procedural technicality and the position is that the ultimate authority at the moment which binds the Court of Appeal is Rahmani's case and the Judgments delivered in it on that particular topic. However, in R. v. Secretary of State for the Home Department ex parte Al-Mehdawi ((1989) 1 All. England Reporter 777), the Court of Appeal struck a different note that Rahmani's case went to the House of Lords and the House of Lords had ruled that the issue determined below did not arise for consideration and therefore, the decision of the Court of Appeal is not a binding authority.

In Rickards v. Rickards (1989) 3 All. England Reporter 193), Lord Donaldson MR. has applied the per incuria rule on the ground that the earlier decision involved a manifest slip or error. That principle was followed in Rakhit v. Carty ((1990) 2 All. England Reporter)

In the revolutionary decision in Moodie v. Inland Revenue Commissioners and Anr. and related appeal ((1993) 2 All. England Reporter 49), the House of Lords advanced the incuria rule, by holding that the House of Lords should ignore earlier decision which would have been decided differently if successful argument in later case had been argued in earlier case and that the earlier decision has no precedent value.

A Judge of first instance is bound by the ordinary principles of precedent to apply the law as so stated and it cannot suggest that a recent decision of the Court of Appeal had been wrongly decided. (Bough v. Delta Water Fittings Ltd. ((1971) 3 All. England Reporter 258). Davies L.J. in Lane v. Willis (1972) 1 All. England Reporter 430) held that the observations of the Judge of first instance that the decision of the Court of Appeal was wrongly decided was out of place, unusual and undesirable.

In the leading Judgment in the seven Judge Bench decision in A.R. Antulay v. R.S. Nayak reported in (1988) 2 SCC 602, Mukharjee, J. has enlarged the scope of the rule of per incuriam by applying the rule on the ground that there was no argument, no submission and no decision on the particular aspect and the direction was given without a prayer in the appeal and also for the reason that the Court did not advert to or consider the effect of the earlier decision in Anwar Ali Sarkar's case (AIR 1952 SC 75) and declined to accept the contention that the directions given on February 16, 1984 were not per incuriam.

In a later Constitution Bench decision in Punjab Land Development and Reclamation Corporation v. Presiding Officer, Labour Court reported in (1990) 3 SCC 682), the Supreme Court has given a cutout of the expression "per incuriam " as "a decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court." It has been clarified that as regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subject covered by them, the Supreme Court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind. The incuria rule cannot hamstrung the Supreme Court as it can lay down the law afresh, if two or more of its earlier judgments cannot stand together.

In a recent decision Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in (2001) 6 SCC 356 the Honourable Supreme Court cautioned that unless it is a glaring case of obstrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. The Supreme Court restricted the scope of the rule that unless some part of the decision was based on a reasoning which was demonstrably wrong, the principle of per incuriam cannot be applied.

The rule of sub-silentio, carved out as an exception to the rule of precedents by the English Courts and Jurists, lost its independent status as an exception to the rule of precedents after the locus classicus decision in Moodie's case. In R. v. Warner, 1 KEB.66 as early as in 1661 precedents sub-silentio and without argument was held to be of no moment. The decisions without argument was viewed as a general exception to stare decisis. It has been stated that "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 no perceived by the Court or present to its mind (Salmond on Jurisprudence Xllth Edition page 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. ((1941) 2 All. England Reporter 11), the Court did not apply and follow the earlier decision as it was rendered "without any argument, without reference to the crucial words of the Rule and without any citation of the authority." The upshot of Moodie's decision is that the incuria rule is enlarged to take within its swathes the decisions passed sub-sileniio. The sub-silentio rule was followed with approval by the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur ((1989) 1 SCC 101). In State of U.P. v. Synthetics and Chemicals ((1991) 4 SCC 139), the Supreme Court considered the question whether the incuria rule extends and applies to a conclusion of law which was neither raised nor preceded by any consideration. The Apex Court held that a decision which is not express and is not founded on reasons, and bereft of consideration of the issue cannot be deemed to be a law declared, to have binding effect.

In the seven Judge Bench decision in L Chandrakumar v. Union of India reported in (1997) 3 SCC 271, it has been stated that S.21 of the Administrative Tribunals Act specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay. While stating so, it cannot be said that the Supreme Court declared the law in regard to the power of the Tribunal to condone delay for the reason that S.21(3) of the Administrative Tribunals Act which specifically empowers the Tribunal to admit an application after the period of limitation provided in sub-s. (l) of S.21 of the Act was 'not really present to its mind'.

The incuria rule can be applied by the same Bench or a co-ordinate Bench to ignore a previous judgment of its own or of a co-ordinate Bench. But a Court has no right to disregard a decision of a higher Court. The English principle that 'a full Court' of five Judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division of the Court consisting of two or three Judges is not followed by our Courts and the decision of a larger Bench binds a smaller Bench. Art. 145(3) of the Constitution directs that a case involving a substantial question of law as to the interpretation of the Constitution, it shall be heard and decided by a Bench of not less than five Judges. A single Bench cannot ignore the Judgment of a Division Bench, Full Bench or Larger Bench of the same High Court and in cases of conflicting decisions, the matter has to be referred to a larger Bench for resolving the conflict.

The incuria rule operates in judicial decisions and cannot trend in articles in news papers or magazines. The incuria rule is one formulated to relax the rigor of stare decisis rule and that rule cannot be called in aid to ignore an article or speech made on a topic or subject. The title of the article 'Comment on 2002 (1) KLT 384 - A writing Perlncuriam appeared in the Journal section of 2002 (2) KLT part 15 at page 72 is inappropriate, inept and sounds smattering of the rule.

Law cannot remain static, hidebound by tradition or blinkered by precedent but it must develop, advance and grow with the needs and aspirations of the society - that is the nub of the Rule of Law.