The Supreme Court per incuriam doctrine received significant clarification from the Supreme Court, which reiterated that the doctrine is a narrow exception to the principle of stare decisis. A judgment can be declared per incuriam only when it conflicts with an earlier decision of a Bench of equal or larger strength or when the Court delivered it without considering a relevant statutory provision. Applying these principles, a Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh held in Parveen Kumar @ Parveen Chauhan v. State of Haryana & Ors., 2026 LiveLaw (SC) 648 that the 2021 ruling in State of Haryana v. Raj Kumar was per incuriam because it conflicted with the binding three-Judge Bench decision in State of Haryana v. Jagdish.
Background of the Dispute
The case concerned the applicability of remission policies framed by the State of Haryana.
The central issue was whether the State’s 2002 remission policy flowed from the Governor’s constitutional power under Article 161 of the Constitution or whether it was merely a statutory policy issued under the Code of Criminal Procedure. If it was statutory, a later policy could supersede it.
The Court noted that the three-Judge Bench in State of Haryana v. Jagdish had already ruled that Haryana’s 1993 remission policy was issued under Article 161. Therefore, a later statutory remission policy could not override it.
However, the two-Judge Bench in State of Haryana v. Raj Kumar (2021) concluded that the 2002 remission policy was statutory and had been replaced by the 2008 policy. The present Bench examined whether that conclusion was legally sustainable.
Arguments Before the Court
The petitioner was represented by Advocate-on-Record Mr. Sunil Kumar Verma, assisted by Ms. Kavita Vinayak, Ms. Bhavi Rathore, Mr. Desam Sudhakara Reddy, and Mr. Himank Nargotra.
The respondents were represented by Advocate-on-Record Mr. Akshay Amritanshu, assisted by Ms. Aashna Gill, Ms. Harsh Rekha, and Mr. Sarthak Srivastava.
Supreme Court Explains the Per Incuriam Doctrine
The Court reiterated that the doctrine of per incuriam is an exception to the doctrine of precedent. Courts must invoke it only in limited circumstances.
According to the Bench, a judgment may be declared per incuriam when:
- Its ratio decidendi cannot be reconciled with an earlier judgment delivered by a Bench of equal or larger strength.
- The Court decided the case without considering a relevant statutory provision, rule, or regulation.
The Bench clarified that the doctrine applies only to the ratio decidendi of a judgment. It does not extend to obiter dicta.
The judges also stressed that judicial discipline requires a Bench of co-equal strength to refer a disagreement to a larger Bench instead of delivering a conflicting judgment. The binding force of a precedent depends on the strength of the Bench, not on the number of judges supporting a particular view. Consequently, a smaller Bench cannot depart from the law laid down by a larger Bench.
When a Judgment Is Not Per Incuriam
The Court explained that a judgment does not become per incuriam simply because another Bench later disagrees with its reasoning.
Likewise, if a judgment considers an earlier decision and reaches a different conclusion that is open to interpretation, courts should not automatically declare it per incuriam.
The Bench emphasized that courts should use the doctrine only when there is a clear conflict with binding precedent or a failure to consider a relevant statutory provision.
Court Declares Raj Kumar Judgment Per Incuriam
Applying these principles, the Court examined Haryana’s remission policies.
The Bench found that the 1993 and 2002 remission policies were materially identical because both derived their authority from Article 161 of the Constitution. In both cases, the Governor exercised the power to grant remission.
Since the three-Judge Bench in State of Haryana v. Jagdish had already recognized the 1993 policy as an exercise of constitutional power, the Court held that the 2002 policy also possessed the same constitutional character.
The Bench concluded that the reasoning adopted in State of Haryana v. Raj Kumar (2021) directly conflicted with the binding ratio in Jagdish. As a result, it held that the 2021 judgment was per incuriam.
This ruling further strengthens the Supreme Court per incuriam doctrine by reaffirming that smaller Benches cannot disregard binding precedents of larger Benches.
Why No Larger Bench Reference Was Needed
The Court also explained why it did not refer the matter to a larger Bench.
Ordinarily, a Bench of co-equal strength must make such a reference if it disagrees with an earlier decision and no controlling precedent exists.
In this case, however, the three-Judge Bench ruling in State of Haryana v. Jagdish already governed the issue. Therefore, no unresolved conflict remained.
The Court observed:
“Had it been that we differed with the learned judges in Raj Kumar without there being a controlling precedent in the form of Jagdish, a reference to a larger Bench would have been the available course. Since the latter is already there, in our view, there is no conflict that needs deciding.”
Earlier Supreme Court Decisions Considered
While explaining the doctrine, the Bench relied on several earlier Supreme Court rulings, including:
- Sundeep Kumar Bafna v. State of Maharashtra
- Shah Faesal v. Union of India
- Pradip Chandra Parija v. Pramod Chandra Patnaik
- Central Board of Dawoodi Bohra Community v. State of Maharashtra
- Trimurthi Fragrances (P) Ltd. v. State (NCT of Delhi)
Final Outcome
The Supreme Court held that the law laid down by the three-Judge Bench in State of Haryana v. Jagdish continues to govern Haryana’s remission policy issued under Article 161 of the Constitution. Accordingly, it declared the 2021 decision in State of Haryana v. Raj Kumar per incuriam because it conflicted with binding precedent.
Case: Parveen Kumar @ Parveen Chauhan v. State of Haryana & Ors.
Bench: Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh.
