A High Court Rendering A Supreme Court Judgment ‘Per Incuriam’ and ‘Sub-Silentio’?: A Pressing Concern in Haris KM v. Jahfar
Ankur Singhal*
Volume 15 Issue 2 (2022)
The doctrine of stare decisis is an essential facet of India’s judicial framework. Generally, judicial precedents of the higher courts are binding on the lower courts. This is not only a constitutional mandate, but also ensures consistency, certainty, and discipline in the huge judicial system that India has. However, there are certain exceptions, such as the rules of per incuriam and sub-silentio. An interesting question which has cropped up in Indian jurisprudence is the power of the High Court to hold a Supreme Court judgment as per incuriam and sub-silentio. This has potentially disturbed the doctrine of stare decisis and might negatively impact the judicial hierarchy, creating inconsistency and uncertainty. This is precisely what the High Court of Kerala has held in Haris KM v. Jahfar. This note analyses the Haris KM case and the judicial position of the rules of per incuriam and sub-silentio in India. It argues that the High Court could not have rendered a Supreme Court judgment as per incuriam and sub-silentio.