Difference Between "Per Incurium" & "Sub Silentio" -Explainer

Those things which have been so often adjudged ought to rest in peace. This statement by the English jurist, Lord Coke succinctly summarizes the jurisprudential force of the doctrine of precedent. The doctrine of precedent occupies an important position in the organization of any judicial system. It implies that a decision by a court higher in the pyramid of judicial hierarchy, binds the subordinate courts. In India, Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the court. Similarly, a decision by a High Court of a State is binding on all the subordinate courts in that State and a decision of a division Bench of a state High Court is binding, on the judges sitting singly in that same High Court. However, despite the strict rigour of this doctrine, there are two ways in which the applicability of this doctrine can be escaped: (i) per incuriam and (ii) sub-silentio. A judgment which is per incuriam or is passed sub-silentio will not be strictly binding as a precedent, and can be validly deviated from. In this explainer-post, an attempt is made to examine the meaning, scope and differences between these two defences/escapes to the applicability of the doctrine of precedent. Per incuriam The term per incuriam literally means "through the lack of care". 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 v. Bristol Aeroplane Company, 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". Salmond mentions that a case where the Court knew the statute but did not refer to the precise terms of the statutes as well as to a case where the Court knew the statute but failed to appreciate its relevance to the matter in hand, would amount to per incuriam decisions. It is however pertinent to remember the limited scope of the classification of a judgment as per incuriam. As noted in the Halsbury Laws of England: Judgment and Orders: Judicial Decisions as Authorities, a decision should not be treated as given per incuriam, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and that as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake. The Indian jurisprudence on the doctrine of precedent has also accepted per incuriam as a valid exception to the principle of stare decisis. In the case of State of U.P. v. Synthetics and Chemicals Ltd., 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. As observed in the case of M/S Hyder Consulting(Uk) Ltd vs Governer State Of Orissa, in exceptional circumstances, where owing to obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. The principle of per incuriam will also apply when a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue, as observed in the case of Govt. of A.P. v. B. Satyanarayana Rao. However, as held in Jaisri Sahu vs Rajdewon Dubey & Ors, it would be open for a Bench of co-equal strength to pronounce a contrary decision from what was held in another bench of equal strength. Another limitation of the doctrine of per incuriam must be noted in this regard. As held by the Supreme Court in the case of A.R. Antulay v. R.S. Nayak and Others doctrine of per-incuriam merely takes away the precedent value of a decision but in no manner it dilutes or affects the binding nature of the aforesaid decision on the parties inter-se". This principle was recently applied by the Allahabad High Court to hold that even if the decision in question is termed as per-incuriam; it will still not rob the impugned decision of its binding value on the two class of persons who are parties inter-se. Sub-Silentio The term "sub-silentio" means in or under silence. 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...

Difference Between "Per Incurium" & "Sub Silentio" -Explainer

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