Sub-silentio and per incuriam: The art of distinguishing a judgment

Have you ever felt that a certain judgment, cited by the opposite counsel has limited your arsenal of arguments, such that your entire case has seemingly fallen flat? What is the recourse to such a burdensome situation when the binding value of a legal precedent under Article 141 of the Indian Constitution negates your argument?

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.

Sub Silentio

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. 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 v. Bremith Ltd, 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 v. Gurnam Kaur, 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.”

This concept was followed subsequently in various instances, most recently in A-One Granites v. State of UP and Ors, 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 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 RM Sahai in his concurring opinion in State of UP v. Synthetics and Chemicals Ltd held,

“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 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, 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 on the ratio of the case.

Conclusion

The art of distinguishing a case is not only an exercise that requires an intense level of effort and preparation, but is also the x-factor of a good advocate. Such an exercise cannot ever be completed by perusing the mere head note of a judgment. Therefore, the practice of citing judgments only after reading the head notes must be stopped, not only by advocates, but even by courts.

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.

Satyam Tandon is an advocate practicing before the Punjab & Haryana High Court. Sanya Bhatia is a 4^th Year Student at Jindal Global Law School.