Understanding the Doctrine of Precedent and Its Exceptions in Indian Law

 The Indian legal system, rooted in common law tradition, places significant emphasis on the doctrine of precedent. This principle ensures consistency, stability, and predictability in the administration of justice. However, not all judicial decisions carry the same binding authority. Some exceptions—such as precedents decided sub silentio or per incuriam—limit the otherwise strict application of this doctrine. This article explores the doctrine of precedent, its types, and the key exceptions recognized by Indian courts.

The Doctrine of Precedent: Foundation of Judicial Consistency

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What is difference between the doctrine Per Incuriam and Sub Silentio?

 The foundational basis for the exceptions of per incuriam and sub-silentio is to balance consistency and judicial discipline, with the flexibility of revising blatantly wrong decisions. The thin line difference between the two is that where a per incuriam judgment is passed in clear violation of a legislation, rule or a judgment of a superior court/larger bench; a judgment passed sub-silentio is essentially the one passed "without consideration/without discussion" on a particular legal point, which ought to have been considered/discussed for the decision.

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Whether judgment sub silentio is having precedential value?

Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

"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 Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

Supreme Court of India

Municipal Corporation Of Delhi vs Gurnam Kaur on 12 September, 1988

Equivalent citations: 1989 AIR 38, 1988 SCR Supl. (2) 929

(1989) 1 SCC101

Bench: Sen, A.P. (J)

Read full Judgment here: Click here

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