This article is written by Tanya Bharti, Student, School of Law, Christ University, Bangalore. The author has discussed the definition, scope, and extent of the concepts of Per Incuriam and Functus Officio with the help of cases.
The word ‘incuria’ literally means ‘carelessness’. According to the Black’s Law Dictionary (Fourth Edition, 1891), per incuriam means through inadvertence. This means something done with oversight without considering all the relevant factors. Further, the term also means ‘through want of care’ or when translating from Latin, it means ‘through lack of care’ and it concerns itself with the decision of the court which was mistakenly given.
So, the doctrine of per incuriam states that a decision should be treated as if it was given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. Such decision of the court decision which is made per incuriam, may not merely ignore the existing law, but may also be contradictory to an existing statute or binding authority.
The ‘per incuriam’ rule is strictly and rightly applicable to the ratio decidendi i.e. the rationale of the decision, which is th point that determines the judgement and is binding in nature and not to the obiter dicta i.e a remark made during the course of the discussion having persuasive value. An important caveat that is required to be taken note of is that, merely because earlier decisions are not mentioned in a judgment, it done means that the court did not consider them before giving the present judgement.
If the decision of the court is given per incurium, it is not a binding precedent and therefore need not be followed as a thumb rule by the lower courts. When a judgement is pronounced without the paying the requisite attention to the relevant authorities or statutes, it is said to be wrongly decided and therefore, does not have the force of law. When, a decision made per incuriam in criminal cases, it usually results in the conviction being overturned.
When a judgment can be stated to be ‘per incuriam’?
The decision of the court can be said to be per incuriam if the following are present:
- If any provision in a statute, rule or precedent was not brought up as a relevant factor for the consideration of the court.
- A Judicial pronouncement can also be per incuriam if its ratio does not concur with the ratio of previously judgments of either a higher court or a larger bench
- Further, the decision would also be per incuriam if it does not align with the views and previous judgements of the Supreme Court.
As a consequence of the above determinants, it has become a settled rule that if a decision has been given per incuriam, the court can ignore it and such judgement would be said to be false or one which has been given by mistake.
The following cases discuss the scope of this doctrine:
- Buta Singh v. Union of India: In this case, the court held that, when a two-judges bench renders a decision without noticing or in a manner that it ignores the binding decision of a larger bench (in this case a three judge bench), then such a decision can be said to be per incuriam.
- K.H. Siraj v.High Court of Kerala: Here the court discussed and held that, when a decision is rendered by the High Court in a manner that it does not give any regard to the relevant decisions of the Supreme Court and decides in a manner contrary to the Apex court rulings, then such a decision of the High Court is per incuriam.
- Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (Chandigarh): It was discussed that what would happen if two or more of the Supreme Court’s earlier judgments could not stand together and it was held by the court that, when the problem of a judgment being per incuriam actually arises, it would not be a difficult issue as the Supreme Court of India could easily lay down the law afresh. It is important to note that, the non-consideration of an irrelevant provision cannot make the ratio of the decision per incuriam.
- Fuerst Day Lawson Ltd. v. Jindal Exports Ltd: The court, in this case had held that, unless the case is of an obtrusive omission which is prima facie an obvious mistake, it would not desirable to depend on the principle of judgment per incuriam. The court said that in order to apply the principle of per incuriam, it is necessary to show that some parts of the decision were based on a reasoning which was demonstrably wrong. Thus, an order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam.
Are ‘per incuriam’ and ‘res judicata’ the same?
The Latin maxim res judicata means, a thing that has already been judged. This doctrine implies that once a final judgment has been announced in a lawsuit, the subsequent judges who are confronted with a suit that is substantially identical, that is the subject matter and the parties are the same, the court would apply the Res Judicata doctrine in order to preserve the effect and finalty of the first judgment.
Per incuriam decisions, on the other hand are such judgements in which the relevant law was not properly presented before the court and hence is not supposed to be followed. In the case of, Union of India v. Indian Railway SAS Staff Association, it was held by the Supreme Court that, ‘per incuriam’ decision does not operate as res judicata.
Can a ‘per incuriam’ decision operate as a precedent?
- Hyder Consulting (U.K.) Ltd. v. State of Orissa: In this case, the court held that, if there exists a prior decision of the apex Court and such pre-existing decision was on identical facts, then the law laid down would bind all subordinate and High courts. This is as far as the same points of law as the earlier case are in consideration. The principle of per incuriam may apply on in certain exceptional circumstances which are cases where due to obvious inadvertence or oversight, the judgment was given before noticing a plain statutory provision or an obligatory authority that was contradictory to the reasoning.
- State of Assam v. Ripa Sarma: In this case, it was held by the court that when a judgment is pronounced in such as manner that is ignorant of earlier judgments of the court by either similar or larger benches, it would be per incuriam. And due to the fact that it falls under this doctrine, the judgement would not be in a position to be elevated to the status of a precedent.
- State of M.P. v. Narmada Bachao Andolan: This case was filed during the time of dam construction over the rIver Narmada and the case also discussed the matter of per incuriam. It was held by the court that, the principle of per incuriam had been developed by the courts in order to give a lenient approach to the rule of ‘stare decisis’ i.e to stand by what has previously been decided and give a ruling based on the precedent. Thus, any ruling that is pronounced in either the ignorance of a statute or of any other binding authorities, is said to be per incuriam.
Doctrine of ‘per incuriam’ and Judicial Discipline
- Jai Singh v. M.C.D.: The court in this case discussed the matter of judicial discipline and held that, there should be consistency in the judgements given by co-equal benches on the same issue. This is very important to maintain a smooth functioning judicial system. Further, a subsequent bench has to always follow the judgement given by the earlier co-ordinate bench. The only exception to this is when the order or the judgement of the earlier bench itself was per incuriam.
- U.P. Power Corporation Ltd. v. Rajesh Kumar: In this case, the court that placed a duty on the courts to acknowledge the fact that merely because a judgment incorrectly appreciates or construes a binding precedent, it cannot be said to be per incuriam.
- K.G. Derasari v. Union of India: The ratio leading up to the decision in this case was that, the previous decisions of the Supreme Court are binding in nature and are the law of the land. If the tribunal has not considered such binding decisions in its adjudicating, the only remedy available to the aggrieved person is to file an application for review of the decision.
Illustration: If Case no.101 was given in such a manner that the court did not consider the prior binding decision given in Case no. 80, it is said to be per incuriam. Further, if the decision ignored case no. 80 but did rely on another relevant case, case no. 76, then the decision pronounced by the court in Case no. 101 cannot be said to be per incuriam. Further, if a case, case no. 119 considers no judgement at all and also ignores the existing law, it will be said to be per incuriam.
So, it may be determined that;
- In a scenario where all the relevant provisions of the Constitution, statutes, rules and regulations have been considered by the court prior to delivery of the judgement, then, the judgment cannot be said to be per incuriam.
- It must be noted that the doctrine of res judicata has no application over a matter where a decision has been given per incuriam, this is because such a decision is not counted as a valid judgment in itself
- When a decision is given per incuriam, it lacks precedential value and cannot be used by the courts as a reference for future decisions
- Decisions given per incuriam are considered to be a mistake and do not have the force of law
Functus officio literally means ‘of no further official authority or legal effect’ or ‘having performed his office’ and is used in the context of an officer who is no longer in office or has fulfilled its purpose. Functus officio derives from ‘fungere’ that means to perform, expire or bring to a closure or end. It is also related to the commonly used English word ‘defunct’.
It implies that once a court passes a valid sentence after a lawful hearing, it no longer has the authority to re-examine the matter and therefore, cannot reopen the case. In other words, it means that the duty or authority of the court or agency that has taken such decision has come to an end.
Here, not only is the duty of the officer expired, but also his authority as the purpose has been accomplished. The doctrine of functus officio also holds that once an arbitrator or judge renders a decision regarding the issues submitted, he lacks any power to reexamine that decision.
Often, a losing litigant hopes to re-engage the court by suggesting a missed point or new evidence. This is because they do not understand the finality of a judicial decision. This doctrine was brought into the common law practice with the Judicature Act in order to give finality to the present decision and make way for appeals to a superior authority.
If the judicial decisions were not final and could be reopened by the request and application of all disappointed litigants, the cases would never come to an end and justice would never be delivered. And therefore, once a decision is issued, the judge loses his authority to further rule on it.
As the judge is now without authority and is no longer seized of the litigation, this renders him functus officio and the option left with the litigant with the sole recourse of an appeal.
In the case of, State Bank Of India & Ors vs S.N. Goyal, it was discussed by the court as follows;
“The learned counsel for respondent contended that the Appointing Authority became functus officio once he passed the order dated 18.1.1995 agreeing with the penalty proposed by the Disciplinary Authority and cannot thereafter revise/review/modify the said order.”
Here, the court relied on the English decision given in the case of Re : VGM Holdings Ltd (1941 (3) All. ER 417). In this case, the court had held that once a Judge passes an order which has been entered in the register, he becomes functus officio. This means that after this, he no longer has the capacity to vary the terms of his order. Such change in the order can only be done by a higher court.
The important point to note in this English judgement is that the Judge does not become functus officio when he passes the order, but when the order which has been so passed, is ‘entered’.
Relation between functus officio and res judicata
The doctrine of Res judicata originates from the legal maxim that is “interest reipublicae ut sit finis litium” ( which means that, in the interest of the republic or at that point of time the commonwealth that there be a finality to litigation). This doctrine means that the subject matter in consideration has already been decided.
The doctrine of Functus officio and res judicata go hand in hand with each other. Res judicata seeks to prevent the same court to reopen a case whose final decision has been made. This applies to all bodies capable to be in a position of adjudicating and includes authorities such as the tribunals or other statutory actor. This doctrine disallows the case to go on in perpetuity and ensures that the same case on the same subject matter before the same court is not brought by the same parties.
The concept of Fuctus officio only furthers the application of Res judicata. While res judicata restricts the re-opening of a case between the same parties on the same matter, functus officio limits the authority of the Judge to take up such a case once he or she has pronounced the final order.
Nevertheless, there are many exceptions to this rule. Such exceptions can be observed in the matters of but not limiting to;
- competency hearings,
- parole board hearings
- family law proceedings
- If a statue itself allows for and lays down a provision for the body to revisit the pre-decided case, then the decision maker may reopen the previous decision given by the same court in the original case.
A bench comprising justices C K Thakker and D K Jain observed that;
“As soon as the judgement is pronounced or order is made by the court, it becomes functus officio (court ceases to have control over the case and has)…no power to review, override, alter or interfere with it,”
The doctrine of functus officio is very important due to its effect of the judicial system. If it were not to be there, the negative impact on the delivery of justice would be drastic and therefore, this doctrine is prerequisite to the judicial functioning.
This doctrine also furthers the scope of res judicata. Nevertheless, there is an important difference between res judicata and functus officio, while res judicata deals with the end of a case and hinders the case from being taken up again, per incuriam refers to the expiration of an office and the officer’s authority which makes the office unable to take up the case.