Precedent — Binding nature — Only ratio decidendi of judgment which constitutes binding precedent.

3 Precedent
— Binding nature — Only ratio
decidendi of judgment which
constitutes binding precedent.

A review application had
been filed by the petitioner for review of order of the learned Single Judge
passed even in absence of the learned counsel for the petitioner, writ
application of the
petitioner was dismissed on merits.

The petitioner relied upon
the decision of a Division Bench of this Court in the case of Kishori Prasad v.
State of Bihar, [reported in 2008(2) PLJR 458] and contended that when the
counsel for the petitioner was not present, the ordinary course open to the
learned Single Judge was either to postpone the hearing of the case or dismiss
it for want of prosecution. But in no circumstance could the same be decided on
merits.

The respondents, in reply,
referred to a later decision of a Division Bench of this Court in the case of
Kedar Nath Tripathi v. The State of Bihar, [reported in 2008(3) PLJR 470]. He
submitted that the later Division Bench in the case of Kedar Nath Tripathi
(supra) considered the decision of the earlier Division Bench in the case of
Kishori Prasad (supra), and explained the same as not laying down correct
proposition of law.

The Court observed that the
doctrines of ‘binding precedent’ and ‘per incurium’ are deeply embedded
in the judicial system and have been discussed and explained in long series of
judicial pronouncements of English Courts as well as the Supreme Court and the
different High Courts of this country.

Doctrines of ‘decision
per incuriam’ and ‘decision sub silentio’ are exceptions to the fundamental
rules of administration of justice, which require certainty in law and
consistency in judicial decisions for the system to work efficiently and in the
interest of society. Hence, the doctrine of binding precedent was evolved by the
English Courts, laying down that judicial propriety and decorum demand the same
to be followed by the Judges as a rule to ensure uniformity in law and judicial
decisions, unless certain exceptional circumstances are held to exist. Thus,
judicial discipline requires a Co-ordinate Bench to follow the judgment of an
earlier Co-ordinate Bench rendered on the issues of law for general application.
That is why in absence of a law laid down or interpreted by the Apex Court under
Article 141 for universal application, the law laid down by one High Court on
the same issue also has a persuasive value for the other Courts in the country.
This indispensable foundation for dispensation of justice has been evolved to
provide at least some degree of certainty upon which individuals can rely in the
conduct of their affairs, as well as a basis for orderly development of legal
rules and to avoid, to the maximum, uncertainty and confusion in the application
of law in the process of healthy development of social fabric. But it is not
that the whole judgment and all observations and findings therein are to be
taken as binding precedent by a subsequent Co-ordinate Bench. It is only the ‘ratio
decidendi’ of the judgment which constitutes a binding precedent.

The ‘obiter dicta’ of
a Judge has also no precedential value. It is only a considered enunciation of
law by the Judge on points arising or raised in the case directly, which has a
precedential value, and not the unnecessary statements or opinion, out of
context, made beyond the occasion, unnecessary for the purpose at hand or made
by way of passing remark.

Decisions rendered ‘per
incuriam’ also fall outside the category of binding precedent. Hence
decisions, contrary to the provisions of the Act or patently erroneous are not
to be treated as binding precedent. ‘Incuria’ literally means ‘carelessness’ and
‘per incuriam’ are those decisions rendered in ignorance of some clear statutory
provision or in ignorance of some law laid down by the Apex Court or a clear
decision of a Co-ordinate or Larger Bench of the same Court on the question of
law of universal
application.

But merely a different
opinion or a possible different interpretation of law cannot be a ground to hold
an earlier decision of a Co-ordinate Bench as rendered ‘per incuriam’ or ‘sub
silentio’ or not a binding precedent.

Thus, it is only a decision,
rendered contrary to law, statutory or Judge-made, or a binding precedent, or an
obligatory authority, and patently erroneous, is ‘per incuriam’. In the
circumstances, the Court found that there was no merit in the review
application.