Per Incuriam and Sub Silentio: Meaning

 

 Per Incuriam, a Latin word means “though inadvertence or through want of care” or “through carelessness”

Example: A decision should be treated as given Per Incuriam when it is given in ignorance in terms of statute or of a rule having the force of a statute or a binding precedent.

                                                             

            Such decision made per incuriam by the Court does not have binding precedent and does not need to be followed by Lower courts as it is considered as erroneous decision. Such erroneous decision need to be recalled or rehear by High courts.

        In M/s. Hyder Consulting (UK) Ltd. Vs. Governor, State of Orissa (2015) 2 SCC 189,  Supreme Court 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.”

 

Sub Silentio

Sub Silentio is a Latin word which means “In Silence”

Example: The Court did not explicitly consider or discuss a legal point that was crucial to the decision

            According to Black’s Law Dictionary, the precedent that pass Sub Silentio are of little or no authority.

     The main difference between the two maxims is that Per Incuriam is error in the decision i.e violation of statute or previous judgment and the other Sub Silentio is omission in the decision which court ought  to have decided according to the principle of Stare Decisis.

    Both these are exception to the doctrine of Stare Decisis.

   The Kerala High Court in Haris K.M. v. Jahfar (2020) SCC  declared a Supreme Court’s judgment as per incuriam and sub-silentio.  The question raised was, whether such a practice of declaring an apex Court’s decision as not binding on the High Court is legally sustainable and appropriate in a judicial system that maintains a pyramidal hierarchy in its functioning, follows the doctrine of stare decisis, and the express provision of Article 141 in the Constitution of India mandating that the law declared by the Supreme Court is binding on all the courts.