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The Doctrine of Sub Silentio

Sub silentio is a legal Latin term meaning "under silence" or "in silence". It is often used as a reference to something that is implied but not expressly stated. A judgment is said to be given sub silentio when a particular point of law involved in the judgment is neither perceived by the Court nor present to its mind. In simple words, Sub silentio means something that is done or said without being noticed or mentioned. It is like a secret action or statement that is not explicitly stated.

For example, a precedent sub silentio is a legal decision that is made without being directly addressed or mentioned in the court's ruling. It refers to a situation in which a court makes a ruling or applies a principle without taking into account the applicable law or any argument. Another example is when a contract does not mention a particular term, but the parties involved have always acted as if that term was part of the agreement. In this case, the term is considered to be part of the contract sub silentio.

According to Merriam-Webster Dictionary, sub silentio is defined thus:
"Under or in silence: without notice being taken or without making a particular point of the matter in question". However, precedents that pass sub silentio are of "little or no authority. "

According to the Black's Law Dictionary, it means 'in silence' and is used to refer to something that is not expressly stated. The use of sub silentio as an exception to the doctrine of precedents is not an uncommon one.

In simple words, the concept of sub silentio simply means when a rule or principle on a particular point of law in a decision is passed and applied by the court in silence without any consideration to the applicable law or any argument.

Sub silentio in itself has a long-standing history. The best illustration for understanding the exception of sub-silentio is the case of Lancaster Motor Co. Ltd v. Bremith Ltd, (1941) 1 KB 675: (1941) 2 All ER 11 (CA) wherein the court frowned upon a decision of the lower court which was passed without proper deliberation and without argument, without reference to the crucial words of the rule and any citation of authority.

Salmond on Jurisprudence says that a decision is not binding if it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", therefore, should not be followed. The author also states that precedents sub-silentio and without arguments are of no legal intent.

The meaning of a judgment sub silentio has been explained by the Apex Court in Municipal Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101 (vide paras 11 and 12) as follows:
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. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon.

It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

The interpretation of this exception has been done by the Apex Court on numerous occasions. The Apex Court has consistently held that "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."

This concept was followed in A-One Granites v. State of UP and Ors (2001) 3 SCC 537 wherein it was held that without referring to the relevant rule for granting a mining license, a direction qua the same couldn't be issued. Thus, the binding value of a decision of the court applies only when the judgment actually raises, discusses and considers a question directly. The Court held thus:

"From a bare perusal of the said judgment of this Court it would be clear that the question as to whether rule 72 was applicable or not was never canvassed before this Court and the only question which was considered was whether there was violation of the said rule.

This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs. Bremith Ltd., (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment.

In General v. Worth of Paris Ltd. (k) (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675, the court held itself not bound by its previous decision.

Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed."

19. The principle of sub silentio has been thereafter followed by this Court in State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar (2000) 5 SCC 488, A-One Granites Vs. State of U.P. & Ors. (2001) 3 SCC 537, Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. (2003) 7 SCC 197 and State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (2004) 11 SCC 26.''

It would be apropos to refer to Zee Telefilms Ltd. & Anr. vs. UOI & Ors.(2005) 4 SCC 649, wherein the Constitution Bench of the Apex Court observed thus:

''It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration. It is also a trite law that a point not raised before a Court would not be an authority on the said question."

It would be worthwhile to refer to the case of Arnit Das vs. State of Bihar, 2000 (5) SCC 488 wherein the Apex Court examined the binding effect of such a decision and observed thus:-

"A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. Vs. Synthetics & Chemicals Ltd. 1991 (4) SCC 138, para 41)."

It is a common misconception that per incuriam & sub silentio are synonymous but it is not so. There is thin line difference between per incuriam & sub silentio in as much as where a per incuriam judgment is passed in clear violation of a legislation, rule or a judgment of a superior court/larger bench; a judgment passed sub-silentio is essentially the one passed "without consideration/without discussion" on a particular legal point. However, the end result in both is the same that in both cases the judgments are of no legal intent and are not to be followed as precedents.

Thus it is imperative for the Courts to deal with the factual & legal issues and give due reasoning for arriving at a decision else the said judgments may fall in the mischief of thr doctrine of 'Sub silentio'.

Written By: Inder Chand Jain
Email: [email protected], Ph no:8279945021

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