Legal Notes by Arvind Datar: Salmond and schizophrenic court rulings

High Courts are often faced with the dilemma of choosing between two conflicting rulings of co-equal benches of the Supreme Court, both equally binding upon them. In Atma Ram v. State of Punjab, (AIR 1959 SC 519, 527), the Supreme Court observed that subordinate courts are placed under the embarrassment of preferring of one conflicting High Court view over another when both are equally binding upon them. High Courts face the same embarrassment.

Unfortunately, the law laid down by the Supreme Court on this question is not clear. In Sundeep Kumar Bafna v. State of Maharashtra, [(2014) 16 SCC 623, 642] it was held that if two or more mutually irreconcilable decisions of the Supreme Court are cited before a High Court, the “inviolable recourse” is to apply the earliest view as the succeeding one would fall in the category of being per incuriam. On the other hand, in Indian Petrochemicals Corporation v. Shramik Sena, [(2001) 7 SCC 469], the Supreme Court took a different view and held that even if the High Court was faced with diametrically opposite interpretations, it should have decided the case on merits and according to its own interpretations of the judgments. Thus, there are conflicting views of the Supreme Court on how conflicting views rendered by coordinate benches should be dealt with.

Salmond in his classic book on Jurisprudence, has termed these conflicting rulings as ‘schizophrenic’. The relevant passage from Salmond was cited by Tarkunde J. in Mansing Surajsingh v The State of Maharashtra, (70 Bom LR 654, 669) and it was observed that when there are contrary decisions of co-equal benches which are both binding on the High Courts, it has to undertake the unpleasant task of choosing  the one which appears to have better authority or reasons. Tarkunde J. cited this classic passage from 12^th edition of Salmond, p.153:

“Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam or it may follow such decision on the ground that it is the latest authority. Which of those two courses the court adopts depends, or should depend, upon its own view of what the law ought to be.”

This decision of Tarkunde J. was subsequently followed by a Full Bench of Bombay High Court in Kamleshkumar v. Union of India, (1994 Mh.L.J., 1669, 1681).

The principle that the earlier decision must be preferred was rejected in a carefully reasoned Full Bench judgment of the Punjab & Haryana High Court in Indo Swiss Time Ltd. v. Umrao, [(1981) 2 ILR (P&H) 49 (FB)]. It was held that a decision made at an earlier point of time will not necessarily prevail over a later decision.

Reference was made to a passage from Seervai’s Constitutional Law of India, 3^rd Edition, page 2244:

“But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and to subordinate courts. It is submitted that in such circumstances, the correct thing is to follow that judgment which appears to the court to state the law accurately or more accurately than the other conflicting judgment.”

This was followed by a Full Bench of the Patna High Court in Amar Singh Yadav v. Shanti Devi, [1986 SCC OnLine Pat 203 : AIR 1987 Pat 191 (FB)].  

However, a five-judge bench of the Madhya Pradesh High Court took the view that if there is a conflict of two benches of co-equal strength, the decision of the earlier bench will be applicable. The five-judge bench overruled the decision of a three-judge bench which had held that the High Court had the option of choosing that ruling which is more elaborate and more accurate and in conformity with the scheme of the Act. [Jabalpur Bus Operators Association v. State of Madhya Pradesh, (2003 (1) MPLJ, 513].

The High Courts’ problem is also aggravated because it has been held that they ought not to declare a Supreme Court decision as per incuriam. This problem is further compounded when these two co-equal bench decisions are referred to a larger bench for resolution. It will be impossible to predict what the larger bench may ultimately hold. Therefore, it is submitted that the High Court is entitled to examine both the conflicting rulings and choose that which appears to it to state the law more accurately or which applies more closely to the facts of the case that the particular High Court is considering.

It is submitted that the view taken by the Supreme Court in Indian Petrochemicals Corporation case is the correct view and the view in Sundeep Kumar Bafna that the earliest view will always prevail is incorrect. Similarly, the Full Bench decisions of Bombay, Punjab & Haryana and Patna High Courts are correct and the Full Bench of the Madhya Pradesh is incorrect.

It is, therefore, submitted that if the High Court is faced with ‘schizophrenic court rulings’ ,as they have been labelled by Salmond, the following principles will apply:

i. The time theory that the earlier judgment automatically prevails is incorrect. The later decision may have noted the earlier decision and given reasons as to  why it is taking a different view.

ii. Two conflicting rulings, if referred to a larger bench, make the case stronger for the High Court to choose that decision which is better reasoned or more appropriate to the case on hand.

iii. The High Court must carefully examine both conflicting rulings and choose that which is most relevant to the facts of the case before it. The mere fact that one judgment is longer, and contains more reasons, will not necessarily make it the better one. It is not necessary that the High Court must necessarily follow the more elaborate ruling.

iv. For the reasons Salmond has set out, the High Courts have the freedom to pick and choose either of the conflicting rulings. 

About the author: Arvind P Datar is a Senior Advocate of the Supreme Court and wishes to acknowledge the help of M. Jannani, Advovate, in the writing of this article.