Jurisprudence
Per Incuriam versus Sub Silentio
At a Glance ▪ Per incuriam (through want of care): a decision given in ignorance or forgetfulness of a binding statute, a rule having statutory force, or a binding authority. It does not bind. ▪ Sub silentio (in silence): a point of law involved in a decision was not perceived by the court or not argued, so the decision is not an authority on that point (Salmond, paraphrased). ▪ England: Young v Bristol Aeroplane Co (1944) made per incuriam the third exception to the Court of Appeal's duty to follow itself; Morelle v Wakeling (1955) confined it narrowly. ▪ India: A.R. Antulay v R.S. Nayak (1988, 7 judges) on per incuriam; Municipal Corporation of Delhi v Gurnam Kaur (1989) and State of UP v Synthetics and Chemicals (1991) on both doctrines. ▪ Both are exceptions to the binding force of precedent, applied narrowly: a court should not casually label a binding decision per incuriam, and a smaller bench should refer rather than disregard (Note 93). |
Imagine an umpire who gives a batsman out under a rule the governing body amended before the season began. His decision was made in ignorance of the rule book and cannot guide later umpires. Now imagine a match in which nobody raised whether the boundary rope was at the right distance; the result was declared on the assumption that it was. That result says nothing about the placing of ropes, because the point never came up. The first is like a decision per incuriam; the second like a decision sub silentio. Each loses the binding force a decision would ordinarily have, for different reasons. The general doctrine of precedent is in Note 24.
1. Two Exceptions to Binding Force
Stare decisis requires a court to follow a binding precedent even if it thinks it wrong (Note 93). These two doctrines are exceptions resting on one idea: a precedent binds because the court that gave it considered the law and decided the point. Where the court overlooked the law that bound it, the decision is per incuriam; where the court never considered the point at all, the decision passes sub silentio on it. The first is a defect in the court's knowledge of the law; the second a gap in what the court actually decided.
Classic Definitions ▪ Lord Greene MR (Young v Bristol Aeroplane Co, Court of Appeal, 1944): the Court of Appeal is not bound to follow its own decision if it is satisfied that the decision was given per incuriam, as where a statute or a rule having statutory effect which would have affected the decision was not brought to its attention (paraphrase). ▪ Evershed MR (Morelle v Wakeling, Court of Appeal, 1955): decisions given per incuriam are those given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that some part of the decision or some step in the reasoning is shown to be demonstrably wrong; cases outside that description that can properly be held per incuriam must be of the rarest occurrence (paraphrase). ▪ Salmond (Jurisprudence): a decision passes sub silentio when the particular point of law involved in it is not perceived by the court or present to its mind (paraphrase). |
2. Per Incuriam Explained
The Latin means through want of care. The doctrine was given its modern shape in Young v Bristol Aeroplane Co (1944), where the Court of Appeal, holding itself bound by its own previous decisions in civil cases, admitted three exceptions: conflicting decisions of its own, a decision that cannot stand with a later House of Lords decision, and a decision given per incuriam (Note 93). A decision is per incuriam when it was given in ignorance or forgetfulness of a statute, a rule having statutory force, or a precedent binding on the court that gave it, and when the overlooked authority would have led to a different result.
Morelle v Wakeling (1955) insisted that the category is narrow. A decision is not per incuriam merely because the argument was weak, because a relevant but non-binding authority was not cited, or because the later court thinks the reasoning poor. The overlooked statute or binding authority must show that the decision, or a step essential to it, was demonstrably wrong. Without that limit, any court that disliked a precedent could escape it by calling it careless.
A per incuriam decision is not formally overruled; it remains a decision between its parties. What it loses is its authority as a precedent on the point it got wrong, leaving the later court free to apply the overlooked law.
3. Sub Silentio Explained
The Latin means in silence. Salmond explained the doctrine with an illustration, paraphrased here. A court decides in favour of A. To do so it must decide two points of law, X and Y, in A's favour. Point X is argued and considered; point Y is never raised, and the court decides for A without noticing that Y had to be decided. The decision is an authority on X. It is not an authority on Y, because on Y the court decided nothing: Y passed sub silentio. The decision may even have been right on Y, but its correctness on that point was assumed, not decided.
The doctrine follows from the nature of the ratio decidendi (Note 92). The ratio is the principle the court treated as necessary to its decision on the material facts. A point never perceived cannot have been treated as necessary, so it forms no part of the ratio. The same reasoning covers the common case of orders without reasons, including directions given on concession or by consent: they settle the dispute but declare no law.
4. The Indian Decisions
A.R. Antulay v R.S. Nayak Supreme Court of India, 1988 (7 judges) An earlier Constitution Bench had directed that the corruption case against Antulay be tried by a High Court judge instead of a Special Judge. The seven-judge bench held that direction to be per incuriam, given without regard to the statute that vested jurisdiction exclusively in the Special Judge and in violation of the accused's fundamental rights, and recalled it. An act of the court shall prejudice no one (actus curiae neminem gravabit). |
Municipal Corporation of Delhi v Gurnam Kaur Supreme Court of India, 1989 A person removed from a pavement stall claimed an alternative site, relying on earlier orders of the Court that had directed the Corporation to provide alternative sites. The Court held that those orders, made without argument, without reference to the relevant law and without reasons, passed sub silentio and were not law declared under Art. 141. It also stated both doctrines: a decision is per incuriam when given in ignorance of the terms of a statute or of a rule having the force of a statute; and a decision is sub silentio on a point not perceived by the court, adopting Salmond's explanation. Quotability as law, it said, attaches to the principle of a case, its ratio, and mere casual expressions carry no weight. |
State of UP v Synthetics and Chemicals Ltd Supreme Court of India, 1991 (2 judges) In a seven-judge decision of 1989 on industrial alcohol, to which the same company was a party, the Court had observed that the State could not levy sales tax on industrial alcohol, though the validity of such a tax was neither in issue nor argued. The later bench held that this observation was per incuriam and passed sub silentio, and so was not binding. The Court explained that incuria means carelessness and in practice per incuriam means per ignoratium; and that a decision which is not express, is not founded on reasons and does not proceed on consideration of the issue cannot be deemed law declared with binding effect under Art. 141. What escapes in a judgment without occasion is not ratio decidendi (paraphrase). |
Synthetics and Chemicals is also a warning: two judges treated an observation of seven as not binding. The observation was genuinely unargued, so the result is defensible on the sub silentio ground, but the case shows how the doctrines could let smaller benches escape larger ones.
5. Narrow Application and Judicial Discipline
Because both doctrines release a court from a binding precedent, Indian law confines them tightly: a binding decision is not to be casually brushed aside as per incuriam merely because a later bench disagrees with its reasoning or some argument was not advanced. Four working rules follow.
Limits on the two doctrines ▪ Demonstrable error, not disagreement. Per incuriam requires an overlooked binding statute or authority that shows the decision to be wrong, not merely a different view of the law (Morelle v Wakeling). ▪ Smaller benches refer. A bench of lesser strength that thinks a larger bench's decision per incuriam should not disregard it but should seek a reference to a larger bench (Dawoodi Bohra, 2005; Note 93). ▪ Coordinate benches. Where a later coordinate-bench decision ignored an earlier one, the earlier holds the field until a larger bench decides (Pranay Sethi, 2017). ▪ High Courts. A High Court is bound by the law declared by the Supreme Court and should not refuse to follow it on the footing that the Supreme Court overlooked a point; that is for the Supreme Court itself to correct. |
6. The Two Compared
Basis | Per incuriam | Sub silentio |
|---|---|---|
Meaning | Through want of care | In silence |
Defect | The court overlooked a binding statute, statutory rule or binding precedent | The court never perceived or heard argument on a point of law involved |
What is missing | Knowledge of the governing law | Consideration of the point itself |
Effect | The decision loses its authority as a precedent on the point it got wrong | The decision is no authority on the unconsidered point; it may remain authority on points actually decided |
Correctness | Demonstrably wrong in the light of the overlooked law | Need not be wrong; the point was simply not decided |
Leading English authority | Young v Bristol Aeroplane (1944); Morelle v Wakeling (1955) | Salmond's explanation of the unperceived point |
Leading Indian authority | A.R. Antulay (1988, 7 judges); Gurnam Kaur (1989) | Gurnam Kaur (1989); Synthetics and Chemicals (1991) |
The doctrines often overlap: an unargued point decided without reference to the governing statute is both, which is why Gurnam Kaur and Synthetics discuss them together. But a decision can be per incuriam on a fully argued point if the binding statute was not cited, and can pass sub silentio on a point without being wrong at all.
7. Place in the Theory of Precedent
Neither doctrine is overruling (Note 99). Overruling declares a considered rule wrong and needs a court of superior authority; per incuriam and sub silentio deny that a binding rule was ever properly laid down on the point, and can be recognised by the court that is otherwise bound. Nor are they distinguishing (Note 100), which concedes the precedent's authority but shows that its facts differ. They are closest to the distinction between ratio and obiter (Note 92): all three ask what, if anything, the earlier court actually decided with authority.
8. Evaluation
The doctrines protect the integrity of precedent: a rule binds because a court considered the law and decided, not because words appear in a judgment. They also protect statutory supremacy, since no decision can bind in the teeth of a statute the court never noticed. Loosely used, however, they let any court escape any precedent it dislikes. The courts' answer is restraint: demonstrable error for per incuriam, a genuinely unperceived point for sub silentio, and a reference to a larger bench whenever a smaller one is tempted to use either against it.
Memory Aid ▪ Analogy: the umpire. Out under an amended rule (per incuriam); a result declared without anyone checking the rope (sub silentio). ▪ 'Incuriam = Ignored; Silentio = Silent'. Per incuriam ignores the law that binds; sub silentio is silent on the point. ▪ Per incuriam checklist: 'SRB'. A Statute, a Rule with statutory force, or a Binding precedent overlooked. ▪ Cases: 'Antulay Ignored, Gurnam Silent, Synthetics Both'. Antulay (1988) per incuriam; Gurnam Kaur (1989) sub silentio, with both defined; Synthetics (1991) both. |
Exam Corner: Likely Questions ▪ Explain the doctrines of per incuriam and sub silentio. How do they differ, and why are they treated as exceptions to stare decisis? ▪ Discuss the per incuriam rule with reference to Young v Bristol Aeroplane, Morelle v Wakeling and A.R. Antulay v R.S. Nayak. ▪ 'A decision which is not express and is not founded on reasons cannot be law declared under Art. 141.' Discuss with reference to Gurnam Kaur and Synthetics and Chemicals. ▪ Can a smaller bench of the Supreme Court declare a decision of a larger bench per incuriam? Discuss. |
Exam Corner: MCQ Traps ▪ Per incuriam = ignorance of a binding statute, statutory rule or precedent; sub silentio = a point not perceived or argued. ▪ Young v Bristol Aeroplane (1944) made per incuriam an exception for the Court of Appeal; Morelle v Wakeling (1955) confined it to ignorance of a statute or binding authority, saying other cases must be of the rarest occurrence. ▪ A.R. Antulay (1988) was a 7-judge bench declaring a Constitution Bench direction per incuriam. ▪ Gurnam Kaur (1989) is the leading Indian case on sub silentio, though it defines both doctrines. ▪ A per incuriam decision is not overruled; it loses its precedential force, while the decree between its parties stands. |
9. Frequently Asked Questions
Q. What is the difference between per incuriam and sub silentio?
A. A decision is per incuriam when the court gave it in ignorance or forgetfulness of a binding statute, statutory rule or binding precedent. A decision passes sub silentio on a point of law that the court never perceived or heard argued. The first is a failure to know the governing law; the second a failure to consider the point at all.
Q. Is a per incuriam decision void?
A. No. It remains binding between its parties, subject to any appeal, review or recall in the same case, as in Antulay. What it loses is its authority as a precedent on the point on which it overlooked the binding law.
Q. Can a High Court treat a Supreme Court decision as per incuriam?
A. It should not. Art. 141 binds the High Courts to the law declared by the Supreme Court, and it is for the Supreme Court, through a bench of appropriate strength, to decide whether its own decision was given per incuriam. A High Court may, however, recognise that a point was never decided at all.
See also: Note 24 (judicial precedent), Note 92 (ratio decidendi versus obiter dicta), Note 93 (binding versus persuasive precedent), Note 99 (overruling versus reversing), Note 100 (overruling versus distinguishing).
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