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July 2014

Precedent – Doctrine of per incuriam and sub silentio – Constitution of India – Article 141

By Dr. K. Shivaram Senior Advocate; Ajay R. Singh Advocate
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Triveni Engineering & Industries Ltd vs. The State of Karnataka & Ors AIR 2014 Karnataka 75

The doctrines of per incuriam and sub silentio operate as exceptions to the rule of precedent. Incuriam literally means carelessness. In practice, per incuriam means per ignorantium. Doctrines of per incuriam and sub silentio have been taken recourse to by the courts for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons or consideration of the issue, could not be deemed to be a law declared having binding effect as is contemplated under Article 141 of the Constitution.

The doctrine of per incuriam has no application in a case to ignore the principle laid down after analysing the relevant provisions of law by a co-ordinate bench. The doctrine of per incuriam is resorted to when decisions are rendered without reference to statutory prescriptions or other binding authorities.

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