When a Precedent Binds, and When It Does Not

Why it matters here. It is the Indian rule on bench strength, and it arose out of exactly the disorder the rule prevents: two Benches of different strength contradicting each other and a third having to sort it out.

Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, completes it.

Facts. A petition of 1986 sought reconsideration of a 1962 five judge Bench decision and had been directed to a seven judge Bench. An application asked instead that it be listed before a Bench of two or three judges, relying on Bharat Petroleum Corporation v. Mumbai Shramik Sangha and four later Constitution Bench decisions.

Held. A decision of a Bench of larger strength binds a Bench of smaller strength. A Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view of a Bench of larger quorum. Only a Bench of the same quorum may doubt a co-ordinate Bench, in which case the matter is placed before a Bench of larger quorum. A two judge Bench not inclined to follow a three judge Bench may not express that disagreement; it may only request the Chief Justice to place the matter before a three judge Bench.

Why it matters here. It is the clearest statement of the internal hierarchy of precedent in the Supreme Court, and it settles what Raghubir Singh had left arguable.

The rules in short. Larger binds smaller. Equal may doubt but may not overrule, and must refer. Smaller may not even express disagreement, and must request a reference.

When a precedent does not bind

1. It is distinguishable. The material facts differ in a respect that matters. See [Distinguishing and Overruling: Precedent as Creativity].

2. It has been overruled, expressly or by necessary implication, by a Bench competent to do so.

3. It is per incuriam. Given in ignorance or forgetfulness of a binding statutory provision or of a binding authority, so that the reasoning is demonstrably defective. The category is narrow on purpose: a decision is not per incuriam merely because it is thought wrong, or because an argument was not raised.

4. It was given sub silentio. The point now in issue was assumed rather than argued and decided. A decision is authority for what it decides, not for what might have been decided had the point been taken.

5. It has been superseded. A statute or constitutional amendment has changed the law the decision construed.

6. It conflicts with a decision of a larger Bench. The larger prevails, and the smaller is treated as not binding.

7. Two co-equal Benches conflict. Practice varies: some courts follow the later decision, others the one they consider better reasoned, and the correct course under Dawoodi Bohra is to seek a reference.

8. It is obiter. Only the ratio binds.

A worked example

A Division Bench of the Supreme Court in 2010 held that a particular service benefit is not payable to daily wagers, without noticing a 2004 Constitution Bench decision that squarely covered the point the other way. A High Court in 2026 must choose.

Is the 2010 decision binding as the later one? No. Later in time does not prevail over greater in strength.

Is it per incuriam? Yes, on the classic definition: it was given in ignorance of a binding authority of a larger Bench which, had it been noticed, would have compelled a different result.

What must the High Court do? Follow the 2004 Constitution Bench, recording why the 2010 decision does not bind it. It should be slow to reach this conclusion, and should satisfy itself that the earlier decision truly covers the point rather than merely resembling it.

What it may not do. Decline to follow the 2010 decision merely because it thinks it wrong. Per incuriam is a rule about defective process, not about disagreement.

What beginners get wrong

"The later decision always prevails." Only between Benches of equal strength, and even then Dawoodi Bohra requires a reference rather than a choice.

"Per incuriam means wrongly decided." It means decided in ignorance of a binding provision or authority. Disagreement is not enough, and the category is deliberately narrow.

"A High Court decision binds other High Courts." It is persuasive only, however eminent the Bench.

"A single judge may decline to follow a Division Bench he thinks wrong." He may not. He refers.

Quick revision

1. Article 141: Supreme Court binds all courts; Bengal Immunity: not itself.
2. High Court binds courts below it within its territory; not another High Court.
3. Within a court: Full Bench over Division Bench over single judge.
4. Raghubir Singh, AIR 1989 SC 1933: larger strength binds lesser; no Bench may overrule one of larger or equal strength; refer instead.
5. Dawoodi Bohra, (2005) 2 SCC 673: lesser quorum may not even express disagreement; it requests a reference.
6. Escapes: distinguishable, overruled, per incuriam, sub silentio, superseded by statute, conflicting with a larger Bench, conflict between co-equal Benches, obiter.
7. Per incuriam is about ignorance of binding material, not about disagreement.

Test yourself

1. State the bench strength rules as Raghubir Singh and Dawoodi Bohra settle them. A decision of a larger Bench binds a smaller. A Bench may not purport to overrule the considered view of a Bench of larger or equal strength; the proper course is a reference to a larger Bench. A Bench of lesser quorum may not even express disagreement with a larger, and may only request the Chief Justice to place the matter before an appropriate Bench.

2. Define per incuriam and say why the category is kept narrow. A decision given in ignorance or forgetfulness of a binding statutory provision or binding authority, such that the reasoning is demonstrably defective. It is kept narrow because a wide category would let any court escape any precedent it disliked by asserting that something had been overlooked, which would destroy the doctrine it is an exception to.

3. List the ways in which a decision may fail to bind. It is distinguishable on material facts; it has been overruled; it is per incuriam; it was given sub silentio on a point assumed rather than argued; it has been superseded by statute or amendment; it conflicts with a decision of a larger Bench; it conflicts with a co-equal Bench, when a reference is the proper course; or the proposition relied on is obiter.

4. A single judge is bound by a Division Bench decision of his own High Court which he believes is plainly wrong. What is the correct course? He must not decide contrary to it. He should record his reasons for doubting it and refer the matter so that a larger Bench of the same High Court may consider its correctness, which mirrors the discipline the Supreme Court applies to itself under Dawoodi Bohra.