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Per Incuriam And Sub Silentio

Oliver Wendell Holmes, an American Judge, once said that "The life of the law has not been logic; it has been experience."

Consistency is the cornerstone of the administration of justice. It is consistency that creates confidence in the judicial system and can never be achieved without the rule of finality. It is to achieve consistency in judicial pronouncements, that the courts have evolved the doctrine of Stare Decisis.

This doctrine laid down a principle that sets a precedent for lower courts to follow the rationale given by the higher courts in a case based on a similar scenario, facts, or, issues. Article 141 of the Indian Constitution states that the law is made by the Supreme Court, which is the highest Indian authority in the pyramid of judicial hierarchy. The article also says that a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

The conundrum that we often face is regarding the binding status of a particular case when we confront a decision that is contrary to statutes and laws or ignores or fails to decide on relevant provisions or does not give any reasons on which judgment is meant to be based.

This doctrine is to be interpreted as that only those judgments hold binding authority which is thoroughly discussed and consider a question directly by providing reasons and any case or rule of law upheld is not meant to be followed if it includes any indirect references which are not duly addressed without giving any solid rationale.

The law has provided two exceptions in which the applicability of this doctrine can be escaped. One can deviate from following a precedent if it is proved that the judgment is either PER INCURIAM or SUB SILENTIO.

The term per incuriam means 'through lack of care.' This principle means a decision where the point in issue is not argued or considered by the court or a decision rendered without any argument, without reference to the crucial words of the rule, and without any citation of the authority. A decision where a mere direction is issued without any citation of any authority.

At times a decision may be given in ignorance or forgetfulness of some statutory provisions or some of the authority bindings on the court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found on that account to be demonstrated wrong.

The concept of per incuriam was examined in Hyder Consulting (UK) Ltd. v. the State of Orissa[1] where it was held that a judgment cannot be said to have declared the law on a given subject matter if the relevant law was not duly considered by the Court in its decision. 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 a court of record, the judgment is said to be given per incuriam.

To render any matter or judgment as per incuriam, it is necessary to show that the same is found to be delivered by ignoring statutory rules which have constitutional effects, misinterpretation, failure to recognize material facts on the record, overlap of higher forum orders by misconceiving the applicant as similarly placed, ignorance of larger bench/higher forum in similar matters.

It is imperative to keep in mind that the rule of per incuriam is strictly applicable to ratio decidendi (reasons behind the decision) and not to the obiter dicta (observation or suggestion) of a judgment. However, when no relevant provision of the Constitution or any statute is left out for consideration as regards a judgment delivered, then, in such a case, the judgment delivered, cannot be termed as per incuriam. [2]

The term sub silentio means in or under silence where a particular point of law was involved in a case not perceived by the court or presented to its mind. It means, 'in silence' and is used to refer to something which is not expressly stated. The old Lancaster Motor Co. Ltd. v. Bremith Ltd[1] of 1941 precisely illustrates the doctrine of sub silentio in which the court frowned upon a decision of a lower court that was passed without proper deliberation and legit argument, without reference to the crucial words of the rule or any citation of authority. Professor P.F. Fitzgerald explained the concept with an example.

"Suppose a case is to decide in favor of one party by deliberating upon two points - Points A and B. Upon considering Point A, the matter was pronounced in the favor of one party. However, the court should not decide in the favor of a particular party unless it also decides Point B in its favor too, but Point B was not considered by the court.

Hence, the decision is not an authority on Point B. It is said to be passed as sub-silentio." The Supreme Court of India in the case of Municipal Corporation of Delhi v. Gurnam Kaur[2] 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."

It is not a latent fact that the number of pending cases in our Indian Judicial System is rising day by day. To dispose of matters speedily, many courts are passing multiple judgments founding to violate article 141 of the Constitution which is creating a detrimental effect on our justice system. These inconsistent practices encourage frivolous litigation and cause disrespect to the constitutional ethos. Caught up in an increasing trend of contrary & conflicting orders in similarly placed matters across all forums, such that we tend to forget the actual undisputed law of the land over a period of time.

However, one can seek the exceptions of Per Incuraim and Sub Silentio if a given judgment is proven to be in conflict with statutory matters, wrongly superimposed higher court orders, etc. provided the same should not be done in the case of the Supreme Court orders which cannot be rendered Per Incuriam and Sub Silentio by the lower courts.

  1. (2015) 2 SCC 189
  2. Datta, Basudev, A Revisit to Concept of 'Per Incuriam' from Indian Judiciary Perspective: A Critical Overview (June 12, 2019). Available SSRN: or
  3. (1941) 1 KB 675: (1941) 2 All ER 11 (CA)
  4. (1989) 1 SCC 101

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