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'Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of subordinate Court's casual observations, generalisations and sub-silentio determinations must be judiciously read by Courts of co-ordinate jurisdiction......' In Union of India v. K.S. Subramaniam, AIR 1976 SC 2433 at p. 2437 para 12, Beg, J. (as he then was) advised the High Courts to follow the practice that has been followed by the Supreme Court whenever there is a conflict between the views expressed by a Larger Bench and a Smaller Bench of the Supreme Court. The learned Judge said :

In Balkishan v. State of Madhya Pradesh [1994 (1) MPJR 206], it is held that in case of conflict between Benches of equal strength the case which deals with the law more elaborately and accurately should be followed and it is immaterial whether it is earlier or later but in Union of India and Ors. v. Raju Construction Company, Bhopal [2000 (3) MPLJ 27], Court holds that subsequent decisions of Apex Court would be per incuriam since its earlier decision in Harbans Singh Tuli and Sons Builders (P) Ltd. v. Union of India (AIR 1992 SC 1124) was not brought to its notice and also sub-silentio, therefore, later decision is not binding.

41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law ? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Unfirmity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry, it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason can not be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint indissenting or over-ruling is for sake of stability and uniformity but rigidity beyond unreasonable limits is inimical to the growth of law."

6. Article 141 of the Constitution of India envisages that-

"The law declared by the Supreme Court shall be binding on all Courts within the territory of India."

Therefore, all Courts in India are bound to follow the decision of the Apex Court, exception being doctrine of 'per incuriam' and 'sub-silentio'. This article empowers the Apex Court to declare the law which becomes the law of the land which is essential for a proper administration of justice with the expectation that like cases should be decided alike. Every Court is bound to follow any case decided by a Court above it in the hierarchy and Court is bound by precedents. A case is regarded as a precedent when it furnishes rules which may be applied in settling the rights of the parties. The doctrine "Stare-dedsis", commonly called "The doctrine of precedent" means adherence to decide cases on settled principles and not to disturb matters which have been established by judicial decisions. The precedent should serve as a rule for future guidance in deciding analogous cases (Words and Phrases, Permanent Edition Vol. 33 P, 372-373). It cannot be doubted that in the development of law, promotion of consistency and certainty in decisions on all the law is maintained and inconsistency avoided. However, perusal of various decisions demonstrates that the Apex Court and High Courts have been called upon to consider the question of binding precedents from time to time. Indisputable question is that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. There seems no dispute to the proposition that decision of Larger Bench of the Apex Court is binding on Smaller Bench of the same Court and the High Courts. The difficulty arises in case of conflict between the two decisions by Benches consisting of same number of Judges, whether to follow the earlier or later and in absence of the Apex Court decision, similar difficulty may arise with regard to the High Court decisions. The normal rule is that in the absence of any decision of the Apex Court, subordinate Courts are bound to follow the decisions of High Court to which they are subordinate, and where conflict is between the judgments of a Single Bench and Division Bench, Division Bench decision will have to be followed and where there is conflict between Division Bench and Larger Bench, the decision of Larger Bench has to be followed. But where the conflict is between two decisions pronounced by Benches consisting of same number of Judges, difficulty arises which decision is to be followed when after careful examinations of the decisions, conclusion is that both of them directly apply to the case before the Court. High Courts have expressed different views, we have found, some taking the line that the Court will be at liberty to follow that decision which seems to it more correct irrespective of the fact it is earlier or later in point of time while others hold that the earlier decision should be followed.