SUB SILENTIO VS PER INCURIUM

Hello friends, today we shall discuss in brief about the two common phrases used in legal terminology SUB SILENTIO and PER INCURIUM. We all know that in case a particular point is settled by way of judgement or otherwise, then the same has to be followed by courts similar or inferior in hierarchy to the said court. This concept is well verse with the basic principles enshrined in the Constitution of India.

One basic similarity among the two concepts discussed here are that both these concepts are being used to distinguish between judgments. In other words, in case one of the above referred terms are applicable in a particular case in such a scenario the said judgement shall not be taken as a good precedent. This means that one can take recourse to any of the above referred terms as a defense mechanism.

SUB - SILENTIO

In simpler terms, it refers to a situation where a particular law/ legal principle even though being referred to during the course of arguments has not been considered while passing of the judgment. Thus, where there is sub-silento, the said case for referring that particular point which has not been dealt with cannot be used as a precedent.

PER - INCURIAM

This term on the other hand, refers to a situation where a particular statute / law has been ignored before passing a particular judgment. In other words, in case an inferior court passes a particular judgment in ignorance of a law well settled on that aspect of law by its superior court or in sheer ignorance of a well settled statute. In such case, the said judgment may not be referred to as the good precedent and is amenable to correction by the superior court or the larger bench of the same court as the case may be.

I hope we have thrown light on the basic difference between the concepts discussed above used in legal parlance.

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