The Doctrine of Sub Silentio in Indian Jurisprudence

The Doctrine of Sub Silentio in Indian Jurisprudence: An Analysis of Precedential Value

Introduction

The principle of stare decisis, encapsulated in Article 141 of the Constitution of India which declares that the law laid down by the Supreme Court shall be binding on all courts within the territory of India, forms the bedrock of judicial consistency and predictability. However, not every statement or conclusion within a judgment constitutes binding precedent. The doctrine of sub silentio addresses a specific scenario where a point of law, though implicitly involved in a decision, is not perceived by the court, argued by counsel, or consciously decided. Such decisions, or aspects thereof, are said to be passed sub silentio and do not carry the weight of binding precedent. This article undertakes a comprehensive analysis of the doctrine of sub silentio within the Indian legal framework, drawing extensively upon landmark Supreme Court rulings and High Court interpretations to elucidate its meaning, application, and implications for judicial practice.

The Concept and Definition of Sub Silentio

Etymology and Core Meaning

The Latin phrase "sub silentio" translates to "under silence" or "in silence." In legal parlance, it refers to a situation where a particular legal point involved in a decision is not brought to the attention of the court, nor is it expressly considered or ruled upon. As observed in Tirlok Singh Anand Petitioner v. M/S Prem Chand & Sons And Others S (Punjab & Haryana High Court, 2012), when no argument is addressed to the court on a question, a decision on that point, if implicitly made, is considered passed sub silentio.

Salmond's Formulation and Judicial Adoption

The most widely accepted definition of sub silentio in common law jurisdictions, including India, originates from Professor P.J. Fitzgerald, editor of Salmond on Jurisprudence. This definition has been repeatedly endorsed by the Supreme Court of India and various High Courts. For instance, in Municipal Corporation of Delhi v. Gurnam Kaur (1989 SCC 1 101, Supreme Court Of India, 1988), the Supreme Court quoted Salmond (12th Edn., p. 153):

"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."

This formulation has been reiterated in numerous subsequent judgments, including K.R Chandrasekaran v. Union Of India (Madras High Court, 2012), Deb Narayan Shyam And Others v. State Of W.B And Others (Supreme Court Of India, 2004), Hameed Joharan (Dead) And Others v. Abdul Salam (Dead) By Lrs. And Others (Supreme Court Of India, 2001), and Debdas Routh v. Hinduja Leyland Finance Limited And Another (Calcutta High Court, 2018).

Illustrative Case Law: Gerard v. Worth of Paris Ltd.

The English Court of Appeal case, Gerard v. Worth of Paris Ltd. (1936 2 All ER 905 CA), is frequently cited by Indian courts to illustrate the concept of sub silentio. In Gerard, the only point argued was the priority of a claimant's debt, and the Court of Appeal granted the order. No consideration was given to whether a garnishee order could properly be made on an account standing in the name of the liquidator. When this specific point was argued in a subsequent case, the court held itself not bound by its previous decision. Sir Wilfrid Greene, MR, noted that the point might have been deliberately passed sub silentio by counsel. This example is referenced in Municipal Corporation of Delhi v. Gurnam Kaur, K.R Chandrasekaran v. Union Of India, and Deb Narayan Shyam And Others v. State Of W.B And Others.

Judicial Treatment of Sub Silentio Orders in India

Non-Binding Nature of Sub Silentio Decisions

The primary consequence of a decision, or a part thereof, being passed sub silentio is that it does not constitute a binding precedent under Article 141 of the Constitution of India. The Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur explicitly stated that decisions passed sub silentio, like those passed per incuriam or by consent, are exceptions to the rule of precedent. This principle was also affirmed in State Of U.P And Another v. Synthetics And Chemicals Ltd. And Another (1991 SCC 4 139, Supreme Court Of India, 1991), where the Court observed that "such decisions which are not express nor founded on reasons nor proceeding on consideration of the issue can be deemed to be law declared under Article 141 of the Constitution." Similarly, in A-One Granites v. State Of U.P And Others (2001 SCC 3 537, Supreme Court Of India, 2001), it was held that decisions not founded on reasoned arguments or lacking explicit consideration of specific issues do not hold binding authority. The CESTAT, in Kuntal Granites Ltd. v. Commissioner Of C. Ex., Bangalore (2007 SCC ONLINE CESTAT 1440, CESTAT, 2007), also applied this principle, holding a Single Member Bench ruling to be sub silentio for not considering relevant legal provisions.

Conditions for a Decision to be Sub Silentio

For a point of law to be considered as having passed sub silentio, certain conditions must be met:

  • The specific point of law must not have been perceived by the court or present to its mind.
  • The point must not have been argued by counsel before the court.
  • The court must not have consciously considered or pronounced upon that specific point of law.

These conditions are evident from Salmond's definition adopted in Gurnam Kaur and reiterated in cases like Tirlok Singh Anand Petitioner v. M/S Prem Chand & Sons And Others S. The Delhi High Court in Union Of India & Anr. Petitioners v. Vinod Kumar Jain & Ors. S (2017 SCC ONLINE DEL 6657, Delhi High Court, 2017) noted an argument that a particular aspect was not noticed in an impugned order, rendering it sub silentio on that aspect.

Distinction from Ratio Decidendi

The ratio decidendi of a case is the principle of law upon which the decision is based, and it is this ratio that constitutes the binding precedent. A point passed sub silentio, by its very nature, cannot form part of the ratio decidendi because it was never consciously decided. As explained in Chandrapal Singh v. State Of U.P. And Another (Allahabad High Court, 2023), quoting Quinn v. Leathem, "a case is only an authority for what it actually decides." The Uttarakhand High Court in STATE OF UTTARAKHAND AND ANOTHER v. BRAHM PAL SINGH (Uttarakhand High Court, 2018) elaborated that something said by a judge which is not part of the course of reasoning leading to the decision of an issue presented has no binding authority. The Supreme Court in Director Of Settlements, A.P And Others v. M.R Apparao And Another (2002 SCC 4 638, Supreme Court Of India, 2002) emphasized that "the enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent."

Sub Silentio versus Per Incuriam

While both sub silentio and per incuriam decisions are exceptions to the rule of precedent, they are distinct concepts. A decision is per incuriam if it is rendered in ignorance or forgetfulness of a relevant statutory provision or a binding precedent. The Supreme Court in State Of U.P And Another v. Synthetics And Chemicals Ltd. And Another (1991) discussed per incuriam extensively. While a sub silentio point is one not considered, a per incuriam decision involves a failure to consider applicable law or precedent that should have been considered. The Bombay High Court in Hind Rubber Industries Pvt. Ltd.… v. Tayebhai Mohammedbhai Bagasarwalla And Others… (Bombay High Court, 1996) noted the Supreme Court's observations in Gurnam Kaur and Synthetics and Chemicals Ltd. (1991) that per incuriam and sub silentio judgments are exceptions to the rule of precedent. The Calcutta High Court in Satya Ranjan Das v. State Of West Bengal & Ors. (2007 SCC ONLINE CAL 442, Calcutta High Court, 2007) also dealt with arguments concerning orders being per incuriam and passed sub silentio.

Sub Silentio versus Decisions on Concession

Decisions made based on the consent or concession of parties, without independent judicial determination of the legal issues involved, also do not create binding precedents. This is similar to sub silentio decisions in that there is no conscious adjudication of the specific legal point. In Director Of Settlements, A.P And Others v. M.R Apparao And Another (2002), the Supreme Court distinguished its earlier judgment as a conscious decision on merits rather than one based merely on concession, thereby affirming its binding nature. The Court referred to Gurnam Kaur where it was held that orders made with the consent of parties and with a reservation that they should not be treated as precedent cannot have binding effect. The Madras High Court in Mohammed Yusuf, v. The Tamil Nadu Waqf Board (Madras High Court, 2023) observed that directions issued by courts more out of consent, or orders passed sub silentio regarding a specific question of power, would not constitute precedent, citing Director of Settlements, A.P. v. M.R. Apparao.

Application by Various Courts

The doctrine of sub silentio is consistently applied across the Indian judicial hierarchy. The Supreme Court itself has invoked it, as seen in Arnit Das v. State Of Bihar . (2000 SCC 5 488, Supreme Court Of India, 2000), where it was noted that decisions not accompanied by reasons or lacking conscious consideration of issues cannot be deemed binding (a principle closely related to sub silentio). High Courts frequently apply the doctrine. For instance, the Punjab & Haryana High Court in Kamaldeen v. State Of Punjab (Punjab & Haryana High Court, 2012) discussed Deb Narayan Shyam's case and the historical basis of the sub silentio rule, quoting Twisden, J.: "precedents sub silentio and without argument are of no moment."

The Role of Sub Silentio in Maintaining Judicial Hierarchy and Certainty

Upholding Stare Decisis (Article 141)

The doctrine of sub silentio plays a crucial role in the practical application of stare decisis under Article 141 of the Constitution. By ensuring that only consciously adjudicated points of law become binding precedents, it prevents the legal system from being inadvertently constrained by unconsidered remarks or assumptions. As affirmed in Director Of Settlements, A.P And Others v. M.R Apparao And Another (2002), the law declared by the Supreme Court is binding, but this declaration must stem from a conscious judicial analysis. The doctrine of sub silentio helps delineate what constitutes such a "declaration of law." The Kerala High Court in Raman Gopi & Anr. v. Kunju Raman Uthaman (Kerala High Court, 2011) summarized principles for dealing with conflicting decisions, noting that a decision not expressed, not founded on reasons, nor proceeding on consideration of an issue cannot be deemed law declared under Article 141.

Judicial Discipline and Propriety

The doctrine promotes judicial discipline by guiding courts on how to treat previous judgments. It prevents lower courts from feeling bound by aspects of higher court judgments that were not the subject of deliberate judicial scrutiny. This aligns with the principles of judicial decorum and propriety emphasized in cases like Sundarjas Kanyalal Bhatija And Others v. Collector, Thane, Maharashtra And Others (1989 SCC 3 396, Supreme Court Of India, 1989), which, though dealing with legislative discretion, touches upon the importance of judicial propriety. The Jammu and Kashmir High Court in Irfana Ahmad v. State Of J&K And Another (Jammu and Kashmir High Court, 2018) extensively discussed the doctrine of binding precedent and judicial decorum, reinforcing the need for consistency and certainty, which the careful application of doctrines like sub silentio supports. The Calcutta High Court in Sibnath Koley & Ors. v. State Of West Bengal & Ors. (2007 SCC ONLINE CAL 306, Calcutta High Court, 2007) also emphasized that a Single Judge cannot ignore binding Division Bench precedents, but implicitly, this binding nature applies to the ratio decidendi, not points passed sub silentio.

The case of Central Board Of Dawoodi Bohra Community And Another v. State Of Maharashtra And Another (2005 SCC 2 673, Supreme Court Of India, 2004), while primarily focused on the binding nature of decisions from larger benches, underscores the hierarchical structure of the judiciary and the importance of adherence to established legal principles, which includes a correct understanding of what constitutes a binding precedent.

Conclusion

The doctrine of sub silentio is a nuanced yet vital component of the law of precedents in India. It serves as a critical filter, ensuring that only those legal principles that have been expressly argued, considered, and decided by a court attain the status of binding law. By distinguishing between the ratio decidendi and points passed over in silence, the doctrine upholds the integrity of Article 141 of the Constitution, promotes judicial certainty, and ensures that the development of law is a conscious and deliberate process. The consistent application of Salmond's definition, as illustrated in Municipal Corporation of Delhi v. Gurnam Kaur and numerous other judgments from the Supreme Court and various High Courts, demonstrates a unified understanding of this principle across the Indian judiciary. Consequently, the doctrine of sub silentio acts as an essential safeguard against the inadvertent creation of precedent, thereby reinforcing the deliberative nature of judicial decision-making and the stability of the legal system.