FAQ's

M Nikitha, Author at B&B Associates LLP
Suo Moto

Literal Meaning

On its own motion

Origin

Latin

Suo Moto has its genesis in the concept of “Epistolary Jurisdiction”, which emerged in the late seventies through judicial activism in order to make the judicial process more accessible to poor, socially and economically disadvantaged sections of the Society.

Explanation

Suo Moto is a Latin term which means an action taken by a government agency, court or other central authority on their own apprehension. In simple terms, it means taking control over a matter. Suo Moto cognizance is when the courts take a case on their own, in cases of gross negligence on part of public authorities or government or whenever the court deems fit. A court takes a Suo Moto Cognizance of a legal matter when it receives information about the violation of rights or breach of duty through media or a third party’s notification. The judge shall pass orders on matters of public interest in his own accord, without being approached by any party regarding the matter.

In India, suo moto has been warranted under Article 32 and Article 226 of the Constitution, which gives special power to the Supreme Court and High Court to issue any directions to do or refrain to do an act. In other words, when a court feels that a matter requires serious and immediate legal intervention, it acts Suo Motu. Supreme Court has been granted with suo moto power Article 131 of the Indian Constitution.

Illustration

A files a case against B (a hospital) of not admitting an accident patient who later died due to his injuries. In such a case, a petition is filed by A against B in the court of law, in order to initiate the proceedings.

However, if a court is enlightened by a news report or by any other third party sources, wherein a hospital has been exposed for its illegitimate practice of extorting money before admitting patients who require urgent treatment, then the court may take suo moto action, which is an action taken on its own against the accused hospital. In such a case, the court shall appoint an amicus curiae to assist it in the matter.

Case Laws

Taking suo motu cognizance of the issue relating to the expeditious trial of cases under Section 138 of Negotiable Instruments Act 1881, the Supreme Court has recently issued notice to the Union of India through Law Secretary, Registrar General of all the High Courts, the Director-General of Police of all the States and Union Territories, Member Secretary of the National Legal Services Authority, Reserve Bank of India and Indian Bank Association, Mumbai as the representatives of Banking institutions.

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports that in Muzaffarpur district of Bihar, a person tried to outrage the modesty of a woman and when he was not successful, he poured kerosene on her and put her on fire. The Commission has observed that the contents of the news reports, if true, amount to serious violation of the human rights of the victim. Accordingly, it has issued notices to the Chief Secretary and the Director-General of Police, Bihar calling for a detailed report in the matter within four weeks.

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report that as many as 20 persons including the Civic Agency staff and the lawyers received head injuries in the alleged police action in Howrah, West Bengal on 24 April 2019. Reportedly, demanding action against the police personnel, the Bar Council of West Bengal observed black day throughout the State today and has resolved to cease the work till 29 April, in solidarity with the lawyers of Howrah.

Legis Actiones

Literal Meaning

Lawsuits

Origin

Latin term; in Roman law – Legal or lawful action; actions of or at law

Explanation

The legis actiones is the oldest known form of civil procedure in the history of Roman law. The peculiar aspect of a trial in an action under the legis actiones process was distinguished by the separation of the trials into two stages, the first of which took place before a magistrate, in whose oversight all the preliminaries were conducted, and the second, in which the matter was finally determined, was performed before a judge.

According to Roman law, the trial itself was divided into two parts. The first was a summary examination before a judge who determined whether there was a question to be investigated and if so, what it was. After the issues had been enumerated and the safeguards established, the parties decided to prosecute the case with a judex, who was not a prosecutor nor a magistrate but a famous layman. The hearings before the Judex were more informal: advocates brought out claims, offered testimony and listened to witnesses. The Judex made a statement but had no administrative authority.

A judex is a private person appointed in Roman law to hear and determine a case and corresponding most nearly to a modern referee or an arbitrator appointed by the court.

Case Laws

In Mithlesh Rani vs. The State Transport Appellate tribunal it was held that, in legal terminology, it has the sense of directions sent by the Magistrate to the Judge for the disposition of cases, with respect to which the legis actions (forms of actions) were inadequate. Word ‘formulate’ thus is to be understood as to express in a formula, or as a formula; or to put or State in exact, concise and systematic form.

Res Integra

Literal Meaning

An entire thing; an entirely new or untouched matter

Origin

Latin

Explanation

The term res integra is applied to those points of the law which have not been decided, which are untouched by dictum or decision. It is a point not covered by the authority of a decided case, so that a judge may decide it upon principle alone. In simple terms, res integra is something which has not yet been determined or resolved.

Case Laws

In Rajendra Kumar Sharma vs. the State of Chhattisgarh & Others, the Chattisgarh High Court held that the issue involved in the present petition is no longer res integra as the Supreme Court, in a catena of decisions, has made clear that the employees appointed on ad hoc basis have no right to continue in service or reinstatement.

In Prem Chand And Ors. vs. Union of India and Ors., the Central Administrative Tribunal of Delhi held that an issue is no more res integra that earlier when applicants had preferred a claim before the High Court of Delhi.

In Ghulam Qadir Badder & Anr vs. the State Of J&K; And Anr., the Jammu and Kashmir High Court held that “Law on the subject is no more res integra that mere cognizance of the complaint and the issuance of the process does not curtail any of the rights of the accused who is treated to be accused till his guilt is proved.”

Caveat Emptor

Literal Meaning

Let the buyer beware

Origin

Latin

Explanation

Caveat Emptor is a principle of contract law, that place the onus on the buyer to perform due diligence before making a purchase. In general, it is the principle that often places the burden to reasonably examine the property before purchasing on buyers and take responsibility for its condition. In the commercial transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract.

The doctrine of Caveat Emptor is an important aspect of the Sale of Goods Act 1930, ensuring it puts the purchaser himself in control of their decision. Section 16 of the Sale of Goods Act clearly specifies that there is no implicit guarantee or obligation as to the nature or fitness of the goods sold under such a contract of sale for any particular reason. This means the principle of Caveat Emptor is seeking to make the consumer more aware of his options. It is the buyer’s responsibility to test the product’s price and utility, he is purchasing. If the commodity turned out to be faulty the retailer is not responsible for the same.

Caveat emptor is a fundamental principle in commerce and contractual relationships between a buyer and a seller. A commercial transaction involves two parties i.e. seller and buyer, and it is the duty for both of them to protect their own interests and rights. In simple terms, it means when a person is buying goods, he should examine them thoroughly as the seller is under no obligation to disclose the whole truth about the goods.

However, there are certain exceptions to the Principle of Caveat Emptor, which include:

  1. Under Section 16(1) of the Sale of Goods Act, when the seller either expressly or by implication is aware of the purpose for which a buyer requires the goods, the supplier has a duty to provide the customer the goods in accordance with the purpose of his purchase.
  2. Under Section 16(2) of Sale of Goods Act, a dealer who is not a manufacturer of goods has a duty to deliver the goods of merchantable quality, which means that the goods must be capable of passing in the market in the name or description by which they are sold.
  3. Under Section 16(3) of the Sale of Goods Act, when a seller is aware of the usage of trade i.e. the purpose for which the goods will be used, then there is an implied condition that seller must warrant the quality or fitness of the goods.

Illustration

A wants to buy a car from B. In this case A is responsible for gathering the necessary information to make an informed purchase. If he simply buys the car by just asking price and makes little or no effort to assess its true value, and the car subsequently breaks down, B is not liable for damages under the principle of caveat emptor.

A buys a bicycle from B by mentioning that he wants to use the cycle for mountain trekking. In this case, if B sells him an ordinary bicycle that is incapable of fulfilling A’s purpose the seller ‘B’ will be responsible.

Case Laws

In Shital Kumar Saini vs. Satvir Singh, a compressor purchased by the petitioner with a one-year warranty showed a defect within three months of purchase. When the buyer asked for a replacement, it was replaced without any further warranty. The Commission held that the goods should be reasonably fit for the purpose for which they are sold and there was an implied warranty in this case.

In Peter Darlington Partners Ltd vs. Gosho Co. Ltd, there was a contract for the sale of canary seed and it was held that the contract was subject to the customs of the trade and the buyer shall receive a rebate on the price for impurities in the seed but the goods cannot be rejected. However, any unreasonable custom of trade does not affect a contract between the parties.

In Ranbirsingh Shankarsingh Thakur vs. Hindustan General Electric Corporation Ltd, it was held that Section 16(1) applies where the buyer requires goods for a specific purpose and he expressly or impliedly makes that purpose known to the seller, he relies on the skills of the seller and the seller’s usual course of business is to sell such goods whether he is the actual producer or not.

Mandamus

Literal Meaning

We command/ we mandate

Origin

The writ of mandamus was first used by English courts in the early seventeenth century. It has been originated from the ‘Latin’ language.

Explanation

Article 32 and 226 of the Indian Constitution gives power to the Supreme Court and High Court, respectively, to issue writs in case of breach of fundamental rights of any citizen by the state. These writs grant power to the Judiciary to control the administrative actions and prevent any kind of arbitrary use of power and discretion.

A writ of mandamus is issued by a judge at the behest of a plaintiff, requiring someone to undertake a task which they are constitutionally obligated to execute. The above writ can also be provided where a higher court’s jurisdiction is needed to compel a lower court or government entity to perform an obligation to enforce the law or redress a misuse of power. The writ of Mandamus may be used to direct a job to be done, or it can allow an operation to be stopped in certain situations. Besides, a supreme court provides the writ to force a lower court or a government official to fulfill compulsory or strictly ministerial duties properly. The writ is not usually issued unless there is an appropriate recourse open, and it is rarely given unless the person to which it will be applied has the moral power either to execute the required act or to abstain.

According to the legal definition of Mandamus, the writ orders a person, a governmental entity, an administrative tribunal, a quasi-judicial institution or a court to carry out a specific action, to render a determination needed by the agency, or over which the agency has jurisdiction, under the law. This is granted not as a matter of statute but rather at the court’s discretion, which is thus primarily governed by fair standards.

Illustration

If a party to a case is dissatisfied with some decision of the trial court, the party may appeal the decision to a higher court with a petition for a writ of mandamus before the trial proceeds. The order will be issued only in exceptional circumstances.

Case Laws

The Supreme Court Kerr v. United States District Court, upheld the denial of a writ of mandamus sought by prison officials to prevent the district court from compelling them to turn over personnel and inmate files to seven prisoners who had sued the prison over alleged constitutional violations. The officials argued that turning over the records would compromise prison communications and confidentiality.

In Praga Tools Corporation v. Shri C.A. Imanual & Ors., the Supreme Court held that “A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute to fulfill public responsibilities.

In Chiranjit Lal Chowdhuri vs The Union Of India And Others, the Supreme Court held that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law.

In Rem

Literal Meaning

Against a thing

Origin

Latin

Explanation

In rem is a legal term defining the authority, a court can exercise over the property (either actual or personal) or a “status” against an individual over whom the court has no jurisdiction in personam. The jurisdiction in rem means that the property or status is the primary objective of the litigation, rather than personal liability not actually associated to the property.

In general, in rem refers to a lawsuit or other legal action directed towards a property, rather than toward a particular person. The term is important since the location of the property determines which court has jurisdiction and enforcement of a judgment must be upon the property and does not follow a person. ‘In rem’ is different from ‘in personam,’ which is directed toward a particular person.

An action in rem is a proceeding that takes no notice of the owner of the property but determines rights in the property that are conclusive against all the world. The object of in-rem proceedings is to determine the disposition of the property, regardless of who the owner is or who else might have an interest in it. Interested parties might make out a case, but the action is in rem, against the things i.e. the property.

Illustration

If title to a property is the issue before the court, the action is said to be ‘in rem’. In-rem jurisdiction refers to the power of a court over an item of real or personal property. In the case of property, in-rem jurisdiction is based on the location of the property and enforcement follows property rather than a person.

Case Laws

In British Shipping Laws, Volume 14, it was referred that “Although the point is not free of uncertainty it is probably the case that a maritime lien is a substantive right whereas a statutory right of action in rem is in essence a procedural remedy. The object behind the availability of a statutory right of action in rem is to enable a claimant to found jurisdiction and to provide the res as security for the claim.”

In R. Viswanathan vs Rukn-Ul-Mulk Syed Abdul Wajid, it was held that “Roman lawyers recognized a right either as jus in rem or jus in personam. According to its literal meaning in rem is right in respect of a thing, us in personam is a right against or in respect of a person. In modern legal terminology, a right in rem postulates a duty to recognize the right imposed upon all persons generally, a right in personam postulates a duty imposed upon a determinate person or class of persons.

In Personam

Literal Meaning

Against a particular person

Origin

Latin

Explanation

A proceeding in personam is a case demanding a judgment which is clearly enforceable against an individual. An action in personam can impact the rights and interests of the defendant. In a lawsuit which is against a specific individual, that person must be served with a summons and the judgment pronounced applies only to that person and is called an ‘in personam judgment’.

In personam proceedings are distinguished from in rem proceedings, in which the latter refers not only to a single person but to properties or ‘all the earth’. This legal differentiation is crucial while deciding when a case should be initiated and how to serve a defendant. In general, in rem rights are property rights enforceable against the entire world (such as property rights) whereas an in personam judgment binds only the litigants.

An in personam claim only determines the rights between the respective parties to the action and does not affect the rights of any other third party. Thus, a right in personam can only be asserted against a party to the dispute. Any order issued by a judge when both subject-matter jurisdiction and in personam jurisdiction has not been properly conferred is void, of no legal force or effect.

Illustration

A complainant may bring a suit against a defendant in personam for violation of a contract. The complainant must establish that the court has both substantive authorities over the defendant and subject-matter authority to preside over the case in order to pursue an in personam action against a defendant. For an in personam case, the decision includes only the parties.

An in personam right is a personal right attached to a specific person, such as contract rights, a tort award against a defendant, or a license.

Case Laws

In M.V. Elisabeth And Ors vs. Harwan Investment and Trading, the Supreme Court held that “A defendant in an admiralty action in personam is liable for the full amount of the plaintiff’s established claim. Likewise, a defendant acknowledging service in an action in rem is liable to be saddled with full liability even when the amount of the judgment exceeds the value of the res or of the bail provided.”

In R. Viswanathan vs. Rukn-Ul-Mulk Syed Abdul Wajid, the Supreme Court of India held that “In an action in personam the court has jurisdiction to make an order for delivery of movables’ where the parties submit to the jurisdiction. A person who institutes a suit in a foreign court and claims a decree in personam cannot after the judgment is pronounced against him, say that the court had no jurisdiction which he invoked and which the court exercised, for it is well recognized that a party who is present within or who had submitted to jurisdiction cannot after wards question it.”

Locus Standi

Literal Meaning

The right to appear and be heard before a court

Origin

Latin

Explanation

The maxim refers to the right of a party to appear and be heard before a court of law or to institute a suit or an action before the court. For instance, an individual cannot bring a complaint challenging the constitutionality of a law, unless he/she can show that they have been harmed or affected by the law. Contrarily, the court would conclude that the complainant ‘lacks standi’ to file the complaint, and will reject the lawsuit without even taking into consideration, the validity of the unconstitutionality provision raised by him/her.

In legal terms, Locus Standi essentially applies to a plaintiff’s attempt to show to the court that there is ample relation or correlation or cause of action to the plaintiff from the suit. In other terms, it applies to a person’s capacity to put a case before the court of law or to testify before the court of law.

Illustration

A foreign government which has not been recognized by the Indian government has no locus standi in the Indian courts.

Before an application for judicial review can be made, the applicant must prove that they have a locus standi.

Case Laws

In the case of M/S Boc India Ltd vs. the State of Jharkhand & Ors., A Writ Petition was filed before the High Court of Jharkhand at Ranchi, which by reason of the impugned judgment has been dismissed, holding that BOC has no locus standi to file writ petition as admittedly tax was payable by TISCO. The court held that “When it is to be believed that the assessee is an aggrieved party to challenge the legitimacy of the complaint presented thereon, it would have the locus standi to retain a formal grievance.”

In M/S Northern Plastics Ltd vs. Hindustan Photo Films Mfg.Co. Ltd., it was observed by the Supreme Court that the wider concept of locus standi in public interest litigation moved before this Court under Article 32 of the Constitution of India which itself is a fundamental right or under Article 226 before High Courts which also offers a constitutional remedy cannot be imported for deciding the right of appeal under the statutory provisions contained in the Customs Act.

In Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed, the Bombay High Court has dismissed the writ petition on the ground that no right vested in the appellant had been infringed, or prejudiced or adversely affected as a direct consequence of the order impugned by him, and as such, he was not an aggrieved person’ having a locus standi in the matter.

Abundans Cautela Non Nocet

Literal Meaning

Abundant or extreme caution does no harm.

Origin

Latin

Explanation

The theory is usually applied to the creation of instruments in which superfluous terms are added to convey the purpose more explicitly. In general terms, the maxim refers that a great vigilance does not hurt.

Case Laws

In Gokaraju Rangaraju Vs. State of Andhra Pradesh, the Supreme Court held that “the statutes are full of provisions introduced because of abundans cautela non nocet (there is no harm in being cautious). Where judicial pronouncements have already proclaimed the law on the subject, the substantive reiteration of the law with respect to the particular cases do not lead to the requisite conclusion that the law established by the judgments was not found relevant to particular cases.”

In George vs. George, the Kerala High Court held that “It is made clear by way of abundant caution (abundans cautela non nocet) that if the parties of the second part required concurrence or authority of the parties of the first part for any of the purposes aforementioned parties of the first part shall join in such document or act necessary for the above purpose or give letters or execute deeds or other documents expressing their consent to the proposals of the parties of the second part for raising money provided that the parties of the first part shall not be bound to meet any obligation personally in respect of such transaction.”

In Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. Vs. Jagruti Industries and anr., the Mumbai High Court cited the above maxim and held that “the reintroduction of Section 9A by the State Legislature was based on the principle of’ Abundans cautela non nocet and the action to obtain consent from the Honorable President. Therefore, precisely because such consent is not obtained until the Central Amendment Act of 1999 and the Central Amendment Act of 2002 have come into effect, it cannot be claimed that the provisions of Section 9A are abolished pursuant to Sections 32 and 16 of the respective Acts, because that section is essentially in no way incompatible with either of the provisions of Central Act.”

Ipse Dixit

Literal Meaning

He said it, himself.

Origin

Latin

Explanation

The principle applies to an appeal to authority, with the authority being itself. It is a statement that while unfounded and unproven, it may bear some weight depending solely on the authority or status of the individual or tribunal who released it. In other terms, an ipse dixit’s attacker makes an unfair argument and considers his term to be the final one. The word ipse dixit has traditionally been used in legal and regulatory rulings as a criticism of claims focused purely on a person or organization’s authority. A mere ipse dixit statement on the grounds of detention cannot sustain the detention order and has to be ignored.

Case Laws

In Kanmani vs. The Secretary to Government, the Madras High Court held that “The detenu in the instant case has not moved the bail application and no other co-accused, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention based on mere ipse dixit statements on the grounds of detention and cannot be sustained in the eyes of law.”

In M.P. Oil Extraction and Anr. vs. State of M.P. & Ors., it was held that “The State’s administrative authority must be considered to be beyond its power to establish a framework for public administration. Unless the policy system is totally capricious and can be obviously seen to be unconstitutional and focused on the pure ipse dixit of executive officers and hence offends Article 14 of the Constitution or offends any constitutional provisions or clashes with some legislative requirement, the Court cannot and should not triumph over its limit and tinker with the policy decision of the executive functionary of the State.”

Qui Peccat Ebrius Luat Sobrius

Literal Meaning

He who does wrong when drunk must be punished when sober.

Origin

The maxim is originated from Latin language.

Explanation

This maxim has wider ambit than just being drunk on alcohol. There could be any type of Intoxication. However, for an act to be held a criminal act, the two primary elements are required.

  1. Mens Rea
  2. Actus Rea

In involuntary intoxication, the mens rea and actus rea both are absent, but in voluntary intoxication, the mens rea is absent, but the offender had chosen his state of inebriation and so shall be punished by the law of the court.

Illustration

A got drunk of his free will and chose to drive home on his own rather than booking a sober driver or hiring a taxi and on his way back runs his car over on pedestrians. He will be convicted of the offence.

Case laws

“In R v Lipman, the defendant, voluntarily consumed LSD, had the illusion of going down to the centre of the earth and was attacked by snakes. In his attempt to resist these reptiles, he gave a blow to the victim (also a drug addict) two blows on the head causing grievous hurt to her brain and shoved some eight inches of bed sheet into her mouth and consequently she died of asphyxia. He claimed to have had no knowledge of what he was doing and had no intention to harm her. His defence of intoxication was rejected at his trial and he was punished of unlawful act manslaughter. His appeal to the Court of Appeal was dismissed.”

In the case of DPP v. Majewski, Majewski was intoxicated and he made three attempts of assault causing bodily harm and apprehended a constable who was on duty. The judges came to the conclusion that in this case, no particular intention is needed and the defendant was guilty.

Ignorantia Juris Non Excusat

Literal Meaning

Ignorance of law cannot be an excuse.

Origin

It is quite often said ‘ignorance of law is not an excuse’. As already stated above, it is based on the Latin Maxim “ignorantia legis neminem excusat” or “ignorantia juris, quod quisque, saire tenetur neminem excusat”.

It may be noted that ignorance of fact can be an excuse but not that of law. It is generally accepted that the maxim had its origin in Roman law and there is a direct mention about the same in “The digest of Justicia” or Justinian’s Code. It is stated therein that ignorance of fact may be excused but not ignorance of law. It is a matter of common knowledge that English law is largely based on Roman law and thus naturally, the maxim crept into English Common law also.

Explanation

The law in the country is all pervading. All our actions are dependent on the law. We have all sorts of law including Criminal law, Constitutional law, Family law, Intellectual property law etc. Ignorance of any of these laws can never be an excuse.

Illustration

In India hunting of a Wild Buffalo (Bubalus bubalis) is an offence as per section 9 of the Wild life Protection Act 1972. If a person, who is ignorant of section 9 of the Wild life protection Act, shoots a wild Buffalo thinking that it is a domestic buffalo he is said to be acting in ignorance of law as well as of a fact.

Case Law

The maxim was considered by the Hon Supreme Court in Motilal Padampat Mills Ltd V State of Uttar Pradesh reported in (1979) 118 ITR 326(SC). The Hon Court observed as follows:

“It must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law.”

So the Hon court in very clear terms has stated the law. There is no room for doubt. In a case decided by the Hon Supreme court the judges openly admitted that they have never heard of the law which was stated to have been violated by an illiterate person in a remote village. Therefore, the Hon court acquitted the person charged for violating that law. India did not bluntly apply the maxim.

Void ab initio

Literal Meaning

Void/not valid from the beginning

Origin

Latin

Explanation

According to the maxim, proposition in law within a court’s jurisdiction, a certain document which purports to affect legal rights is or was null and void from its beginning, because of some vitiating element. In case of contracts, the maxim states that a contract was void as soon as it was created. The parties of the contract are not legally related based on what was written in the agreement because the agreement in question was never valid. This type of agreement can never be void because it was never a legal contract to begin with. However, this has certain exceptions. In general, a contract that cannot be legally enforced by either party is considered to be void. Where a Court declares a document or an act to be void ab initio, the parties are returned to their respective positions at the time of the ab initio event.

Illustration

A sells his land to B for Rs. 50,000 but fails to allow B to occupy the land. In this case, the agreement itself becomes void, since the condition to give the possession of land in exchange of Rs 50,000 has not been fulfilled. Thus, the maxim void ab initio is applicable.

Case Laws

In Radhey Shyam Gupta vs. UP State Agro Industrial Corporation, it was held that “Order is declared as void ab initio means no order is in existence and petitioner shall deem to continue in service.”

In Henry Ah Hoc & Another vs. The State and Another, it was held that “Void means prospectively void and void ab initio means void from its very inception, or in other words, retrospectively void, the word void as used in Article 254(1) of the Constitution.

Lex Non A Rege Est Violanda – Legal Maxim

Literal Meaning

The Law must not be violated even by the King.

Origin

Latin

Explanation

The maxim lex non a rege est violanda says that every individual should have equal rights and that every presumption on the part of every party should be taken into consideration, regardless of the individual is sovereign, or a respectable party, or even by a person of power or political history. Every human being should comply with all the laws and regulations made thereunder any non-compliances may lead to action will be taken by jurisdiction. Violations of any rights, whether of the citizen or by the citizen, or the State, or by the State, may be judicially resisted and the rights may be enforced.

Case Laws

In Sri B R Shivaramaiah vs. The Registrar General, the Karnataka High Court while referring to the above maxim, held that the “Reviewing Authority is also duty-bound to review the same in its entirety. If these statutory and constitutional obligations are not discharged, and if the said non-compliance act results in dismissal of a person from service, it is certainly to be said as arbitrary, unconstitutional and violative of Articles 14 and 311 of the Constitution of India.”

In Om Prakash Sood And Anr. Vs. the State of Himachal Pradesh And Anr., the Himachal Pradesh High Court held that “The statutory right to elect candidates for municipal constituency could not, either directly or indirectly, be denied or abridged, but the non-compliance with the statutory provisions have in this case, violated the exercise of their right; and till the constituency is called to elect its representative, the franchise stands abridged. The voter in this constituency has been shut off from the ballot box, which is obnoxious to the statutory guarantee of the right to vote. Any contravention of the law by or in the name of the State can be resisted in the judicial forum.”

Onus Probandi

Literal Meaning

Burden of proof

Origin

Latin

Explanation

Onus Probandi is a general rule that a party who alleges the affirmative of any proposition shall prove it. The onus probandi lies upon the party who seeks to support his case by a particular fact of which he is supposed to be cognizant. However, when law presumes the affirmative, onus probandi lies on the party who denies the fact, to prove the negative.

In any court trial, there is an implied accepted conclusion before any evidence is presented. In criminal trials, where the prosecution is required to prove that the defendant is guilty beyond any reasonable doubt. In civil cases, plaintiff is required to establish a preponderance of the evidence, which simply means he/she establishes a better case than the defendant.

Case Laws

In Smt. Bimla Devi @ Bimal Devi vs Uma Devi, the Patna High Court held that Onus probandi and animo attestandi are two basic features for deciding the issue of valid testamentation of the Will. Onus probandi lies in every case upon the propounder the Will and animo attestandi is the principle that implies animus to attest. The attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will.

In Narayan Govind Gavate Etc vs the State of Maharashtra it was held that “The effect of evidence has to be distinguished from the duty or the burden of showing to the Court what conclusions it should reach. This duty is called the “onus probandi”, which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, but the effect of the evidence led is a matter of inference or the conclusion to be arrived at by the Court.”

Certiorari

Literal Meaning

To be more fully informed/ to be made certain in regard to.

Origin

Latin

Explanation

A writ of Certiorari is a decision of the Supreme Court to call up/ hear an appeal from an inferior court. It is a writ, issued by a higher or appellate court to review decisions made by a lower court for any irregularities in legal processes or procedures. Certiorari is regarded as the general remedy for the judicial control of both quasi-judicial and administrative decisions affecting rights.

The Indian Constitution empowers the Supreme Court and the High Court, to issue writs for enforcement of any of the fundamental rights conferred by Part III of the Indian Constitution under Article 32 and Article 226, respectively. The SC and the HC shall direct the inferior courts, tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny, and, if necessary, for quashing the same.

The Petition for Writ of Certiorari must include a list of all parties involved, the facts of the case, the legal questions to be reviewed, and reasons why the Supreme Court should grant the petition. By granting the petition and issuing a writ of certiorari, the Court agrees to hear the case. But a writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Case Laws

In Surya Dev Rai vs Ram Chander Rai & Ors, the writ of Certiorari was discussed as an exercise of its original jurisdiction by the High Court; an exercise of supervisory jurisdiction is not an original jurisdiction and, in this sense, it is akin to appellate revisional or corrective jurisdiction. Similarly, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more.

In Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others, the Supreme Court held that “An error in the decision or determination itself may also be amenable to a writ of ‘certiorari’ but it must be a manifest error apparent on the face of the proceedings. It may, therefore, be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.

In Province of Bombay vs Kusaldas vs. Advani And Others, the Supreme Court held that “A writ of certiorari like the writ of prohibition is a judicial writ of antiquity and it is the ordinary process by which the Court of King’s Bench Division exercises control over the acts of bodies vested with inferior jurisdiction. The writ is intended to bring up before the High Court the records of proceedings or determinations of inferior tribunals and to quash them if the tribunals are found to have acted in excess of their jurisdiction.”

Per Incuriam

Literal Meaning

Through lack of care

Origin

Latin

Explanation

Per incuriam is a decision of the court which is mistaken. The one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force. A judgment that is found to have been decided per incuriam does not then have to be followed as precedent by a lower court. In criminal cases, a decision made per incuriam will usually result in the conviction being overturned. The doctrine is an exception to Article 141 of Constitution of India which embodies the precedents as a matter of law.

The present doctrine is strictly and rightly applicable to the maxim ratio decidendi, which is the point that determines the judgement and is binding in nature and not to the obiter dicta i.e. a remark made during the course of the discussion having persuasive value.

Case Laws

In Buta Singh v. Union of India, the Supreme Court held that, when a two-judge bench renders a decision without noticing or in a manner that it ignores the binding decision of a larger bench (in this case a three-judge bench), then such a decision can be said to be per incuriam.

In the State of Assam v. Ripa Sarma, it was held that when a judgment is pronounced in such a manner that is ignorant of earlier judgments of the court by either similar or larger benches, it would be per incuriam. And due to the fact that it falls under this doctrine, the judgment would not be in a position to be elevated to the status of a precedent.

In the State of M.P. v. Narmada Bachao Andolan, the Supreme Court of India held that the principle of per incuriam had been developed by the courts in order to give a lenient approach to the rule of ‘stare decisis’ i.e. to stand by what has previously been decided and give a ruling based on the precedent. Thus, any ruling that is pronounced in either the ignorance of a statute or of any other binding authorities is said to be per incuriam.

Nullus Commodum Capere Potest De Injuria Sua Propria

Literal Meaning

No one can derive an advantage from his own wrong.

Origin

Latin

Explanation

The above maxim is derived from the general principle of good faith. It means that one party may not avail itself of the fact that the other party has not fulfilled a contractual obligation or has not had recourse to some means of redress, if the former party has, by some illegal act prevented the latter from fulfilling the obligation in question or having recourse to that redress. The maxim may be applied generally to the case of contracts. If the obligee of a bond has prevented the obligor from fulfilling the condition of the bond, he shall not take advantage of the non-performance of the condition, since that would be enabling him to benefit by his own wrong.

Illustration

A makes a contract with B, to build a house within a certain time, under a penalty. B finding materials; however, he delays in providing the materials and further prevents the due completion of the house. In this case, B shall not be allowed to succeed in an action for the penalty.

Case Laws

While referring to the above maxim in Purna Chandra Behera Vs. Dibakar Behera and 4 ors., the Orissa High Court held that “If the Petitioners have committed a wrong in occupying the public land, they cannot be permitted to take the benefit of their own wrong.”

In Indore Development Authority Vs. Shailendra (Dead) Through Its Lrs. And Ors., the Supreme Court held that “Where a creditor refuses a tender sufficient in amount, and duly made, he cannot afterward, for purposes of oppression or extortion, avail himself of such refusal; for, although the debtor still remains liable to pay whenever required so to do, yet the tender operates in the bar of any claim for damages and interest for not paying or for detaining the debt, and also of the costs of an action brought to recover the demand.”

In Ashok Kapil vs. Sana Ullah, the Supreme Court observed that the maxim Nullus commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) is one of the salient tenets of equity and that in the normal course a party cannot secure the assistance of a Court of law for enjoying the fruit of his own wrong.

Res Judicata

Literal Meaning

A matter judged

Origin

Latin

Explanation

Section 11 of the Civil Procedure Code defines the doctrine of Res Judicata is the matter which has already been judged. It means that no court will have the power to try any fresh suit or issues which have been already settled in the former suit between the same parties. This doctrine is based on the principle that if the matter is already decided by the competent court then no one has the right to reopen it with the subsequent suit. It is applied by the court where issues directly and substantially involved between the same parties in the former and present suit, are the same.

This principle rests on two principles:

  • i. one should not be vexed twice for the same cause; and
  • ii. there should be finality to litigation.

Where there has been an executable judgment between the parties, the rule of res judicata will prevent a fresh suit between them for the same relief.

Illustration

A sues B on Cause of Action C, but A loses. Therefore, A may not try for better luck by initiating a new lawsuit against B on C.

Case Laws

In Manohar Lal vs. Seth Hiralal, it was held that a court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 of the Civil Procedure Code are mandatory, and no discretion is left with the court.

In Direct Recruit Class vs. the State of Maharashtra And Ors., the Supreme Court held that “A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure, if the same has been earlier decided by a competent court by a judgment which became final.”

In Supreme Court Employees’ Welfare vs. Union of India And Anr., it was held that “When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in a contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the source of the right is res judicata.

Habeas Corpus

Literal Meaning

Produce the body

Origin

Latin

Explanation

The writ of Habeas Corpus is issued by a court or judge directing one (a public official) who holds an imprisoned person in custody, to produce the person before the court for some specified purpose. The procedure provides a means for inmates, or others acting on their behalf, to dispute the legal basis for confinement.

A writ of habeas corpus is not in itself a remedy, but instead, a legal procedure used as a protection against arbitrary detention. A person shall seek for this writ from a court to obtain immediate release from unlawful confinement, as when the confinement has occurred through a means that violated the person’s constitutional rights. The characteristic element of the writ and the theory behind the whole procedure observed by the court was the immediate determination of the right of the applicant’s freedom and his release when the detention is found to be unlawful.

Case Laws

In Mahesh Chand Vs. the State of Rajasthan, the Supreme Court held that the law is now well settled that if the detention is illegal, the remedy is not the bail but a petition for Habeas Corpus.

In Dr. M.C. Sharma, Lecturer vs. The Punjab University, the Punjab and Haryana High Court held that Article 226 of the Constitution of India confers power upon the High Court to issue to any person or authority including in appropriate cases any Government, orders or writs including the writs in the nature of Habeas Corpus, mandamus, Prohibition, quo-warranto and certiorari or any one of them for the enforcement of any of the rights conferred by Part III or for any other purpose.

In Kanu Sanyal vs. District Magistrate, the Supreme Court held that the habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ declared the court is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention maybe enquired into and an appropriate judgment rendered upon a judicial inquiry into the alleged unlawful restraint.

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India, and also by the adoption of the forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 of the Indian Constitution has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the ‘procedure established by law’, now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable.