Difference between the judgment per incuriam and judgment sub silentio.

Question: Difference between the judgment per incuriam and judgment sub silentio.

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Answer

The concept of per incuriam is that those decisions which are given in ignorance in forgetfulness of some relevant statutory provisions or some authority. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium’ of a statute or other binding authority. Where the judgment does not consider the statutory provision it passes on sub-silentio. Incuria literally means ‘carelessness’.

Thus, two legal doctrines that distinguish a precedent are Judgment sub-silentio and Judgment per incuriam.

1. Judgement per incuriam

A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of statute i. e. delegated legislation. Such decisions are “per incuriam” and not binding. The mere fact that the earlier court misconstrued a statute or ignored a rule construction is no ground for impugning the authority of precedent.

It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. Such decisions are also per incuriam. A court is not bound by its own decision that is in conflict with one another. If the new decision is in conflict with the old, it is given per incurium and is not binding on later courts.

In these circumstances, the rule is that where there are previous inconsistent decisions of its own, the court is free to follow either i. e. earlier or later. To come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.

In the case of Government of A. P. and Anr v. B. Satyanarayana Rao (dead) by LRs. And others [(2000) 4 SCC 262] the Hon’ble Supreme Court observed as under:

“The rule of per incuriam can be applied where 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”.

In another case of Siddharam Satlingappa Mhetre v. State of Maharashtra [AIR 2011 SC 312], the Hon’ble Supreme Court has explained the concept of ‘per incurium’ which operates on a similar principle. Operating on a premise that when a bench of lower strength ignores the decision of a bench of a higher strength then the decision of the lower strength can be discarded, being per incurium of the decision of the higher strength.

In 2015, the Court in Hyder Consulting (UK) Ltd. v. State of Orissa 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 and Ors. v. Union Of India And Anr (2020), the 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 to the ratio of the case.

2. Judgment sub silentio

The concept, ‘Sub Silentio’ is borrowed from Latin term. The precedents that pass sub silentio are of little or no authority. It can be understood as, “Without notice being taken or without making a particular point in question amounts to sub silentio”. So, such observations or decisions should not be treated as precedents.

The ‘Black’s Law Dictionary’, defined the meaning of Sub Silentio as ‘the precedents that pass Sub Silentio are of little or no authority’. It is further described as ‘silent uniform course of practice, uninterrupted though not supported by legal decisions’. So far as its literal meaning is concerned, the Latin meaning of the concept is, ‘Under’ or ‘In Silence”.

Commonly, the term is used, when the Court overrules the holding of a case without specifically stating that it is doing so. Thus, the term mostly refers to matters that are not expressed by implied.

Jurisprudential meaning

The renowned Jurist Salmond, in jurisprudence by P.J. Fitzgerald, referred as follows:

“Precedents Sub Silentio and without argument are of no moment. This ‘rule’ has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened.

The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however, eminent, can be treated as an ex cathedra statement having the weight of authority”.

In the case of Municipal Corporation of Delhi v. Gurunam Kaur [AIR 1989 SC 38], the Hon’ble Supreme Court laid down that precedent sub silentio and without argument are of no moment. What is binding on authority, is the principle upon which the case was decided.

It is further observed that the only thing in a judge’s decision binding as an authority upon a subsequent judge, is the principle upon which the case was decided. The statements which are not part of the ratio decidendi and passed without debate on a particular issue, are distinguished as sub silentio and are not authoritative.

In the same case, 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 that 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.”

Thus, the doctrine makes it clear that the binding value of a decision of the court is only extended when the judgment actually raises, discusses and considers a question directly. It excludes any decision that is expressly made is covered under the ambit and any indirect references.

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