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The Doctrine Of Legal Precedent: Analyzing Sub-Silentio And Per Incuriam

What is the correct course to follow when we are faced with a decision which decides in a particular way but does not refer to any statutory provision, decides contrary to statute or ignores relevant provisions or does not give any reasons etc for its decision. What is the value of such a decision, does it amount to a precedent or can it be ignored even though it may be a decision of a superior Court.

The answer lies in a lot of hard work and distinguishing the Judgment that has been cited. Two legal doctrines that distinguish a precedent are 'Sub-Silentio' and 'Per Incuriam', which shall be covered under the ambit of this column. The thin line difference between the two is that 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.

Sub Silentio
The Latin phrase 'Sub Silentio' translates to "in silence" or "without notice being taken". In legal terminology, it refers to a Court Ruling or Judgement made without explicitly stating a rationale or providing an explanation.

Some key points to understand 'Sub Silentio';
  • It describes a Judgement or Ruling handed down without an accompanying opinion that explains the reasoning behind the decision.
  • The literal meaning is "under silence" or "in silence," referring to the lack of stated reasoning.
  • This occurs when a Court assumes or implies something significant without addressing it directly.
  • Rulings made 'Sub Silentio' are not considered binding precedents since no formal legal reasoning was provided.
  • However, they can still influence later decisions and carry persuasive authority in certain circumstances.

So in summary, 'Sub Silentio' is a Latin term used in law to indicate that a ruling was made without an explained justification or basis. While not an outright binding precedent, these types of Judgements can still subtly impact the legal landscape. Understanding the meaning of 'Sub Silentio' provides insight into how Courts operate.

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. A decision passed sub silentio in 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. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn, explains the concept of sub-silentio with this illustrative example:

[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'].

According to the Black's Law Dictionary, "the Precedents that pass Sub Silentio are of little or no authority." Literally, 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. Many advocates, over the years, have used this exception as a defence to overcome hurdles during arguments and trials. Interestingly, the Indian Judiciary has also kept an open mind about the concept and has afforded interpretations to it from time to time.

'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 Vs. Bremith Ltd", (1941) 1 KB 675)], 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.

The usage and interpretation of this exception has been reiterated by the Supreme Court of India on numerous occasions. It was mentioned in the case of ["Municipal Corporation of Delhi Vs Gurnam Kaur", AIR 1989 SC 38] wherein the Delhi High Court had issued a direction to the appellant to construct a stall or kiosk from the date of the order or to furnish a plan of action with requisite permission for the Respondent - Gurnam Kaur for an alternative stall.

However, the Court relied on a precedent which was based on the consent of parties, and there was virtually no reason why a direction was to be made to the Corporation. As soon as this was noticed by the Supreme Court, it was 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 of Constitution of India."

The reason for development of 'Sub-Silentio' as a defence to the principle of 'Stare Decisis' is, as observed in the case of ["B. Sharma Rao Vs Union Territory of Pondicherry", AIR 1967 Supreme Court 1480], that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. This exception is, in essence, rooted in the principle that the duty of Judiciary is not to declare, but to adjudicate i.e. decide on merits, after due consideration and reasoning.
This concept was followed subsequently in various instances, most recently in ["A-One Granites Vs State of U. P & Ors.", AIR 2001 SC 1203], in which it was held that without referring to the relevant rule for granting a mining license, a direction qua the same couldn't be issued.

What can be derived from these precedents, then, is that the binding value of a decision of the court is only extended when the judgment actually raises, discusses and considers a question directly. Any decision that is expressly made is covered under the ambit, and any indirect references are excluded.

Per Incuriam
The word 'Per Incuria' literally means 'Carelessness'. According to the Black's Law Dictionary (Fourth Edition, 1891), 'Per Incuriam' means through inadvertence. This means something done with oversight without considering all the relevant factors. 'Per Incuriam', literally translated as "through lack of care" is a device within the common law system of Judicial precedent. A finding of 'Per Incuriam' means that a previous Court Judgment has failed to pay attention to relevant statutory provision or precedents.

In the Advanced Law Lexicon by P. Ramanatha Aiyer's (5th Edition), it has been defined as under: "Per Incuriam. (Lat.) (of a Judicial decision) wrongly decided, usually because the Judge or Judges were ill-informed about the applicable law".

The term 'Per Incuriam' literally means "through the lack of care". The doctrine of 'Per Incuriam' refers to a Judgement of a Court which has been decided without reference to, or in ignorance of, a statute or an earlier Judgment/Precedent which would have been relevant and, therefore, affected the result of the case. In other words, a 'Per Incuriam' decision is made when a Judgment has failed to pay attention to relevant statutes or precedents. Since 'Per Incuriam' decisions involve precedent, the doctrine bears a direct relation to the doctrine of "Stare Decisis" which translates to, 'let the decision stand' or 'to stand by that which is decided', and gives binding force to decisions of the Courts. Notably, the term 'Per Incuriam' is often conflated with 'Per Curiam'; these are not to be confused because 'Per Curiam' refers to a ruling issued by an appellate Court consisting of multiple Judges in unanimous agreement and is written anonymously, bearing no connection with 'Per Incuriam'.

The doctrine of 'Per Incuriam' as an exception to the doctrine of 'Stare Decisis' was discussed at length by Lord Green M.R. in the case of ["Young Vs Bristol Aeroplane Company", Law Reports (1944) K. B 718], wherein it was observed:

"The Court is not bound to follow a decision of its own if it is satisfied that the decision was given Per Incuriam, for example, where a statute or Rule having statutory effect which would have effected the decision was not brought to the attention of the earlier Court".

The exception of 'Per Incuriam' under the Doctrine of Precedents can be understood in two ways. 'Per Incuriam' means "carelessness", although in practice it is understood as 'Per Ignoratium', meaning ignorance of law. When Courts ignore law and proceed to pass Judgment, the said decision falls under the spectrum of 'Per Incuriam' and does not necessarily need to be followed.

Justice R. M. Sahai in his concurring opinion in ["State of Utter Pradesh & Anr. Vs Synthetics and Chemcicals Ltd. & Anr.", 1991 SCC (4) 139] the Supreme Court cited with approval the English principle, "quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority", observing the non-binding value of a Per-Incuriam Judgment. observed as under:

"English Courts have developed this principle in relaxation of the Rule of Stare Decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in Ignoratium of a statute or other binding authority'."

In 2015, the Court in ["M/S Hyder Consulting (UK) Ltd. Vs State of Orissa", 2013 (2) SCC 719] held,

"A decision can be said to be given Per Incuriam when the Court of record has acted in ignorance of any previous decision of its own, or a subordinate Court has acted in ignorance of a decision of the Court of Record. As regards the Judgments of this Court rendered Per Incuriam, it cannot be said that this Court has 'declared the law' on a given subject-matter, if the relevant law was not duly considered by this Court in its decision."

Most recently, in the matter of ["Dr. Shah Faesal & Ors. Vs Union of India & Anr.", 2020 SCC OnLine SC 263], the Supreme Court reaffirmed the importance of the Doctrine of Precedents and Stare Decisis as core values of the legal system and pronounced that this 'Per Incuriam' only applies on the ratio of the case.

Ralph Waldo Emerson said, "A foolish consistency is the hobgoblin of little minds". It is of paramount importance for every Court to be vigilant in its cognition of each case while determining the relevancy of statutes and precedents because 'Per Incuriam' decisions do not carry any binding force for the Courts. It is also a well-settled principle, as recorded in John Salmond's book, "Treatises on Jurisprudence", that a decision is not binding if it was rendered in ignorance of a statute or a rule having the force of statute or delegated legislation.

The ability to identify and come up with the most suitable law that could be applied to a case which also calls for distinguishing between various laws and legal terms which are close enough but have a thin line of differentiation that changes the game is not only a skill that calls for a high level of preparation and effort, but it is also something that makes a competent advocate. Such an exercise can never be finished by reading a Judgment's Head Note. Therefore, not only attorneys but even courts must abandon the habit of referencing Judgments only after reading the Head Notes. Like statutes, decisions made by Superior Courts do have a binding effect on Lower Courts. However, there is a distinction in how binding they are: 'Judges interpret statutes, they do to interpret Judgments. They interpret words of statutes; their words are not to be interpreted as statutes.'

For advocates, it is problematic because the holding of a case is generally causally linked to the existence of a peculiar fact; and unless that very fact is predominantly present in the case where the Judgment has been cited, the holding is not applicable. In such instances, the rule of 'Sub Silentio' comes to aid. Similarly, Courts should conduct an in-depth analysis of the case cited, the nature of the precedent, not make any passing references, check whether a latest Judgment on the issue exists or not, and thereby avoiding the Judgment being quashed under the doctrine of 'Per Incuriam'. If such a reference is made, lower Courts must also cautiously adjudicate upon disputes where such arguments are produced and evaluate the language of the decision at every juncture.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K & Ladakh, Jammu.
Email: [email protected], [email protected]

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