There is a bit of irony here. On the one hand, a five-judge Constitution Bench is into the fourth week of trying to prevent errors in media reporting of crime and court proceedings. On the other, the court is assailed with review petitions from telecom goliaths and the government itself arguing that its judgments are riddled with “errors apparent on the face of the record”. The president has referred a dozen questions to the court; a clarification application is pending and there is talk of some lost telcom companies returning with “curative petitions”, the last desperate remedy.
All these go to show that judges can go wrong, and they do so more often than one would like to think; otherwise there would be no appeals. When they go terribly wrong, they have a Latin euphemism for it, per incuriam. It means the judgment was delivered carelessly or due to ignorance of facts or law. It is not all that rare either. An Indian legal website yielded 2,000 references to it.
A few weeks ago, this was an issue in the court when the case, Hyder Consulting (UK) Ltd vs Governor of Orissa, was referred to a larger Bench. The question was the power of the arbitral tribunal to award interest on the principal amount up to the date of the award. Two sets of judgments apparently contradicted each other and one of them is per incuriam; we will know in a few years.
If there is one wrong ruling at the apex level, there is a cascading effect. Courts below could be losing their way to justice, causing loss of life or property of litigants. Judges follow precedents and the Constitution compels them to do so. The law is that the courts below have to follow even a wrong judgment from above.
This may lead to unpleasant consequences for many people. They have to grin and bear a wrong principle of law. Judges in courts below will be stuck with a wrong decision for decades, until someone brings it to the notice of a new generation of judges and they find the time to correct it.
Another evil consequence of judicial error is that wrong-doers will have a field day till the Supreme Court corrects its incuriam. This triumph of inequity is not uncommon. For instance, in Coromandel Fertilisers Ltd vs Union of India (1984), the court had to assert that “a wrong decision in favour of any party does not entitle any other party to claim the benefit on the basis of the wrong decision”.
In the case, Faridabad Scan Centre vs DGHS, a number of importers of medical equipment got exemption from customs based on an incuriam decision. When the court realised the mistake, it reversed its order observing that “wrong orders cannot be perpetuated with the help of Article 14 (equality)”. In a similar case, Railway Board vs JS Subbiah, a judicial faux pas benefited a large number of employees. The court hastily corrected, well, incuriam.
The common law principle that judgments of courts above must be followed in any case seems to be stricter in England, from where legal principles were shipped to this country. After a shipwreck, Gulliver landed in an island where the legal principle followed was “whatever has been done before may legally be done again, and in the name of precedents, lawyers produce as authorities to justify the most iniquitous opinions and the judges never fail to direct accordingly”.
The House of Lords, in the case Cassell & Co vs Broome, admonished the court of appeal for departing from the precedent set by it taking the view that it was wrong. The Law Lords asserted that “it is not open to the court of appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords.”
One can cite several major cases in which the Supreme Court has gone outrageously wrong. In 1988, a five-judge Bench gave a wrong direction to the Bombay High Court in the cement scam involving the then political heavyweight A R Antulay. It had to be corrected by an even larger Bench since the earlier decision was found to be incuriam.
In a case of international arbitration, Fuerest Day vs Jindal Exports, the court decided the date on which the old Arbitration Act ceased to exist and the new law came into force. Though the event happened in 1996, the Supreme Court gave a clear decision only in 2001. Meanwhile, several judgments had been passed based on the wrong cut-off date.
The court insisted in that judgment that precedents should be treated with due reverence. It can be departed from only if it is an “exceptional case of inadvertence or oversight”. Unless it is a “glaring case of obtrusive omission, it is not desirable to depend on the principle of per incuriam”. Cynics might call this the perpetuation of “ancestor worship” in the legal field.
Though it is for jurists to nitpick on this, ordinary people might worry about the correctness of court judgments. It is no “breaking news” that raises eyebrows for a nanosecond and loweres equally quickly. Consequences vary. As a wit said, judges hang their mistakes, doctors bury their mistakes, engineers are buried by theirs (and actors are married to theirs).