New Delhi: The Supreme Court has reiterated that the doctrine of per incuriam is an exception to the rule of stare decisis and can be invoked only in limited circumstances, holding that a judgment may be declared per incuriam if its ratio is irreconcilable with an earlier decision rendered by a Bench of equal or larger strength, or if it was delivered without considering a relevant statutory provision.
The Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh made these observations while deciding which of two conflicting remission policies of the Government of Haryana would govern the release of a life convict, in the process holding that a two-judge Bench decision on the point stood rendered per incuriam for conflicting with an earlier three-judge Bench ruling.
The appellant, Parveen Kumar alias Parveen Chauhan, had been convicted for the murder of a twelve-year-old child and sentenced to life imprisonment under Section 302 of the Indian Penal Code, along with separate terms under Sections 365 and 201. Having served over fourteen years of actual imprisonment, he sought premature release under the 2002 Policy governing remission of life convicts in Haryana. The State rejected his representation on the ground that his case was instead governed by the 2008 Policy, under which he had not completed the requisite twenty years of actual sentence and twenty-five years of total sentence. His challenge before the Punjab and Haryana High Court failed, leading to the present appeal.
The central question before the Court was whether the 2002 Policy, framed with reference to Article 161 of the Constitution, survived the notification of the 2008 Policy, which was explicitly issued in exercise of powers under Sections 432 and 433 of the Code of Criminal Procedure, 1973. This turned on two conflicting precedents. In State of Haryana versus Jagdish, a three-judge Bench had held that Haryana's 1993 remission policy was an exercise of the Governor's constitutional power and could not be overridden by the subsequent statutory policy of 2008, adding that a convict must be given the benefit of a more liberal policy in force at the time his case is considered. In State of Haryana versus Raj Kumar, however, a two-judge Bench had held that both the 2002 and 2008 Policies were statutory in nature, with the later policy validly superseding the earlier one.
Comparing the text of the 1993 and 2002 policy letters, the Court found them virtually identical in substance and form: both were issued under the signature of the Financial Commissioner and Secretary to the Haryana Government's Jails Department, and both directed that recommendations of the State Level Committee be routed through the Chief Minister to the Governor "for orders under article 161 of the Constitution of India." Since Jagdish had already held the 1993 Policy to be constitutional in character, the Court reasoned that the near-identical 2002 Policy could not logically be treated as merely statutory, as Raj Kumar had held.
Addressing the appellant's submission that Raj Kumar carried no precedential value, the Court surveyed the settled tests governing when a decision may be treated as per incuriam, drawing on rulings including Sundeep Kumar Bafna versus State of Maharashtra, Shah Faesal versus Union of India, Pradip Chandra Parija versus Pramod Chandra Patnaik, Central Board of Dawoodi Bohra Community versus State of Maharashtra, and Trimurthi Fragrances (P) Ltd. versus State (NCT of Delhi). The Court culled out that the doctrine applies only to the ratio decidendi and not to obiter observations; that a Bench disagreeing with a coordinate Bench must ordinarily refer the matter to a larger Bench rather than take a divergent view; that a decision of larger strength binds subsequent Benches of equal or lesser strength, regardless of the number of judges who authored either ruling; and that a judgment is not rendered per incuriam merely because it references an earlier decision and reaches a different conclusion, or because, on an ordinary reading, it does not appear facially inconsistent with prior rulings.
Applying these principles, the Court held that since the 1993 Policy and the 2002 Policy were identical in their source of power, and since a three-judge Bench in Jagdish had already characterised such a policy as constitutional, the contrary characterisation in Raj Kumar could not stand. The Court observed that ordinarily a reference to a larger Bench would have been warranted had it merely disagreed with Raj Kumar, but since a controlling three-judge precedent already existed in the form of Jagdish, no such reference was necessary, and Raj Kumar stood rendered per incuriam on this point.
On the merits, the Court held that since the 2002 Policy was framed in exercise of the Governor's power under Article 161, the 2008 Policy could not override it, and the finding in Raj Kumar that the 2008 Policy superseded the 2002 Policy was untenable in law. The appellant, the Court held, was entitled to the benefit of the 2002 Policy's lesser sentence-completion requirement, consistent with the holding in Jagdish that a convict must be given the benefit of the more liberal policy in force at the time his case falls for consideration.
The Court clarified that its findings would operate prospectively and would not reopen remission applications already decided, effectively leaving the State of Haryana to administer two distinct and separate policies going forward. It directed the State to decide the appellant's remission application afresh, consistent with the judgment, within four weeks, and ordered that a copy of the order be forwarded to the Chief Secretary, Government of Haryana.
Case Title: Parveen Kumar @ Parveen Chauhan versus State of Haryana & Ors.
