In any judgment, the law that is laid down has to be traced to its ratio decidendi. In an earlier article, the effect of the judgment being per incuriam was discussed and I had mentioned that this expression really meant per ignorantium. In other words, if a conclusion is reached which is contrary to the statutory provisions or a binding judgment of a bench of higher strength or even a coordinate bench, the decision can be treated as per incuriam. A judgment which is per incuriam loses its precedential value. 

Another exception to the doctrine of stare decisis is the rule of sub-silentio. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, it was held that a decision would be sub-silentio if the conclusion reached was “without argument, without reference to the crucial words of the rule and without any citation of authority”. The court followed the judgment of Greene, M.R., in Lancaster Motor Co. v. Bremith Ltd., (1941) 1 KB 675, 677 (CA).

In the Gurnam Kaur case, an earlier decision in the case of Jamna Das was followed, where certain reliefs were given to a person who had encroached upon a footpath and set up a stall. The Supreme Court observed that the earlier decision of Jamna Das was a consent order and there was no discussion of the statutory provisions of the Delhi Municipal Corporation Act, 1957; the decision was more in the nature of an equitable relief.   Consequently, the decision in Jamna Das could not be treated as a precedent. Apart from being a consent order, no arguments were advanced and there was no reference to any statutory provision. Thus, the decision of the Delhi High Court was set aside because it had followed a decision which was both per incuriam and sub-silentio. 

In State of U.P. v. Synthetics & Chemicals Ltd., (1991) 4 SCC 139, a bench of two judges held that  an earlier decision of a bench of seven-judges had made observations which were both per incuriam and sub-silentio. The seven-judge bench held that the State Legislature had no power to levy tax on industrial alcohol, even though the controversy before this bench was only with regard to the levy of excise duty or vend fee on industrial alcohol; the levy of sales tax was never an issue. 

Justice Kochu Thommen observed that this was an “abrupt observation without a preceding discussion”. He held the judgment to be per incuriam. In the concurrent decision, Justice R.M. Sahai observed that the decision would also be sub-silentio because it was not preceded by any argument and the conclusion that no sales tax was leviable was arrived at without application of mind. This judgment also referred a passage from Salmond on jurisprudence, which reads 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 rule of sub-silentio was applied in an interesting manner in Government of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602. Earlier, a bench of five judges had been constituted to consider whether an ambiguity in an exemption notification should be interpreted in favour of the assessee or the Revenue. In Commissioner of Customs v. Dilip Kumar and Company, (2018) 9 SCC 1, after considering earlier decisions, a five-judge bench held that an exemption notification must be construed strictly and any ambiguity must be interpreted in favour of the Revenue. It overruled the contrary view taken in Sun Export Corporation v. Collector of Customs, (1997) 6 SCC 564.

In Mother Superior, the earlier decision of the five-judge bench on the ground of sub-silentio. Nariman J., speaking for the two-judge bench, pointed out that the five-judge bench judgment had failed to notice a series of cases which had made a distinction between exemption provisions in general and exemption provisions which had a beneficial purpose. The two-judge bench felt that the five-judge bench could not have done away with the line of judgments on beneficial exemptions sub-silentio. Therefore, the five-judge bench would not affect exemption notifications which had a beneficial purpose; the interpretation must be in favour of the assessee so that the beneficial purpose is not frustrated.

The decision of the Mother Superior is important because a broad statement of the law by a larger bench will not impliedly overrule a sub-category of decisions whose impact had not been noticed by or brought to the attention of the larger bench.

Thus, decisions which are per incuriam or sub-silentio do not have a binding effect.  In the case of per incuriam a matter or issue is specifically argued, and the court applies its mind before reaching a conclusion. But it will still be per incuriam since it is contrary to an express statutory provision or an earlier binding precedent, which has not been noticed by the court.

A judgment will be sub-silentio when observations are made on a proposition of law, without there being any argument on this proposition, or where there is no reference to the relevant statutory provisions. Similarly, observations made in consent orders also do not create any binding precedent. At the same time, one must remember the minority view of Justice S.B. Sinha in State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26, where the learned judge held that reasons must be given as to why a judgment is not binding on grounds of sub-silentio.

It is submitted that High Courts can refuse to follow decisions of the Supreme Court which are sub-silentio. For example, in Delhi Transport Corporation v. Ms Vidyawati, ILR (2009) 4 Delhi 546, the earlier decision of the Supreme Court in DTC v. Prakash Chand, C.A.No.7110-7111 of 2004 was not followed, as it had been given on its peculiar facts, with the consent of the parties, and without discussing the legal issues involved. Similarly, a full bench of the Kerala High Court in K.M. Haris v. Jahfar, (2020) SCC OnLine Ker 4009 also held that an earlier decision of the Supreme Court in Union of India v. Chitra Lekha Chakraborty, C.A. 6213 of 2008 was not a binding decision as it was both per incuriam and sub-silentio, on the ground that the Supreme Court decision had not been informed of the relevant statutory provisions.

Arvind P. Datar is a Senior Advocate.