Bench Strength Determines Binding Precedent Over Numerical Majority: Supreme Court Explains Doctrine Of Per Incuriam

The Supreme Court has reiterated the principles governing the doctrine of per incuriam.

While setting aside a decision of the High Court, the Court observed that it is not the numerical strength of judges taking a particular view that is relevant, but it is instead the strength of the Bench, which is the determinative factor of the binding nature of a particular view.

Clarifying the rare circumstances under which a prior ruling loses its binding character, the apex court underscored that a coordinate Bench cannot bypass or rewrite established jurisprudential mandates of a larger Bench, noting that any such judicial departure directly invites the application of the per incuriam doctrine.

The Court also held that the 2002 Remission Policy stood framed under the Constitution, and such power is to be exercised by the Governor himself, and the subsequent Policy of 2008 cannot deter the effect of the former and the observation that it supersedes the 2002 Policy is untenable in law.

The Bench of Justice Sanjay Karol and Justice NK Singh clarifies guidelines regarding when ‘does’ or ‘does not’ in a decision becomes per incuriam. It was held, "It is not the numerical strength of judges taking a particular view that is relevant but it is instead the strength of the Bench, which is the determinative factor of the binding nature of a particular view."

Advocate on Record Sunil Kumar Verma appeared for the Appellant, while Advocate on Record Akshay Amritanshu appeared for the Respondents.

When Does a Decision Become Per Incuriam?

The Court said:

1. It is an exception to the rule of stare decisis and must be applied sparingly.

2. A judgment is per incuriam: (a) when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength; or (b) when a particular provision, a statute, a rule or a regulation has not been brought to the attention of the Court.

3. It applies only to the ratio decidendi of a judgment and not to obiter dicta.

4. Judicial discipline requires that if a bench disagrees with another bench of co-equal strength, the matter should be referred to a bench of three judges to decide the issue.

5. The decision rendered by the Bench of the largest strength binds any subsequent Bench of co-equal or lesser strength. A Bench of lesser strength cannot dissent from the view already taken by a Bench of larger strength.

When a Judgment is not Per Incuriam?

1. The Court said that a judgment cannot be said to be per incuriam:

(a) if it makes reference to an earlier decision and then concludes correctly or incorrectly, or

(b) if the ordinary reading of the judgment does not on the face of it show it to be in conflict with earlier decisions, the court should refrain adopting such an interpretation.

The Court referred to the law laid down in Sundeep Kumar Bafna v. State of Maharashtra (2014) ; Shah Faesal v. Union of India (2010) ; Pradip Chandra Parija v. Pramod Chandra Patnaik (2002); Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) and Trimurthi Fragrances (P) Ltd., v. State (NCT of Delhi) (2022).

The Bench applied these principles to hold that the coordinate 2021 Bench decision in State of Haryana v. Raj Kumar [2021] was per incuriam. The Court held that the coordinate Bench decision in State of Haryana v. Raj Kumar—which had erroneously categorized the 2002 policy as a mere statutory memorandum—was rendered per incuriam as it directly conflicted with the larger three-judge Bench precedent in State of Haryana v. Jagdish [2010].

Cause Title: Parveen Kumar @ Parveen Chauhan v. State of Haryana & Ors. [Neutral Citation: 2026 INSC 667]

Appearances:

Appellant: Advocate on Record Sunil Kumar Verma, Advocate Himank Nargotra, Advocate Desam Sudhakara Reddy.

Respondents: Advocate on Record Akshay Amritanshu, Advocate Aashna Gill, Advocate Harsh Rekha, Advocate Sarthak Srivastava.

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