LEGAL MAXIM

An established proposition or principle of a legal policy or law is called a legal maxim, which is usually in Latin language. Most of the Latin legal maxims which we use today have been originated from the medieval era in the European states that used Latin language as their legal language. These principles helps and guides Courts of all around the world in applying the existing laws in a fair and just manner which helps the courts in deciding issues before it.

Some of the legal maxims which are used or followed by the courts in India are as following:

  1. “Ab initio”- from the very beginning the act was bad. This term is used in reference to a law, agreements, a deed between parties, marriage etc. if something is void ab initio it means that the act was void from the beginning.
  • The supreme court used this term “ab initio” to come to a conclusion that the proceeding were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were being instituted was not registered at the date of the institution of the proceeding- Delhi Development Authority vs. Kochhar Construction Work &Ors., MANU/SC/1279/1998:1998(8) SCC 559.
  • Marriages which are void are void ab initio which means that these marriages never happened in the eyes of court- Manjeet Singh vs. Parson Kaur, MANU/PH/0220/1990.
  1. “Actus Dei Nemini Facit Injuriam”- law holds no man responsible for the Act of God.
  • The court held the situation of strike as an act of god and found the maxim Actus Dei Nemini Facit Injuriam directly applicable to such cases. Further more the court also said about abnormal situations like strike, that it is every hard for a person to think that such type of situation may occur even after applying a lot of skills or ability, the court should not insist for strict adherence to the procedural law so as to prejudice the interest of such litigants. In legal sense such incidents well be covered by the expression “act of god”- Mali Ram Mahavir Prasad vs. Shanti Debi &Ors., MANU/BH/0010/1992 PAT 66.
  1. “Actus Curiae Neminem Gravabit”- An act of the court shall prejudice no man.
  • This principle has become the fundament of the system of justice and application to Indian jurisprudence, and the principle means thatno man should suffer because of a fault done by the court or because of delay in procedure- Busching Schmitz Private Limited vs. P.T Menghani & Ors., MANU/SC/0344/1977: AIR 1977 SC 1569: (2) SCC 835.
  1. “Actori incumbit onus probandi”- the burden of proof lies on the plaintiff.
  • The cardinal principle of law of evidence is that “Actori incumbit onus probandi” which means the burden of proof rests upon the plaintiff- Indra Raja & Ors. Vs. John Yesurethinam, MANU/TN/4369/2011.
  1. “Actus Non Facit Reum Nisi Mens Sit Rea”- The intent and act must both concur to constitute the crime.
  • A man is considered guilty criminally when he violates criminal law. However, the rule of the Latin maxim “Actus Non Facit Reum Nisi Mens Sit Rea” is not absolute and is subject to limitations. It says that no crime is said to be committed without a guilty mind. To make a person criminally responsible, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two main components of every crime, a physical element and a mental element which is usually called actus reus and mens rearespectively – Balakrishna Pillai Vs State of Kerala, MANU/SC/0212/2003: 2003 (9) SCC 700: 2003 (2) SCR 436.
  1. “IgnorantiaFacti ExcusatIgnorantia Juris Non Excusat”–  Ignorance of facts may be excused but not ignorance of law – the legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he was unaware of its content.
  • The principle explained in the maxim was used to counter the stand taken by an accused that he could not be convicted because he did not know that bringing gold from another country without giving tax will amounts to an offence. Court held that the ignorance on the part, of the respondent, who was coming to India from the foreign country, was not sufficient to save him from punishment on the ground that mens rea was necessary. Therefore, ignorance of law cannot be regarded as ignorance of fact for the purpose of protecting offenders from punishment – A. Qadir Vs the Union of India & Ors., MANU/RH/0695/2000(DB of High Court of Rajasthan).
  1. “In absentia”– “In absence,” or more fully, in the absence of the person involved.
  • Court held that in our criminal judicial system, firstly, Courts do not try or sentence an accused in absentia (except in petty cases and when represented by a pleader) and secondly, the judgment must be pronounced in open Court, signed and dated; and if these formalities are not strictly complied with, the conviction and sentence become vitiated and cannot be sustained as they become illegal – In Re: Athipalayan & Ors., MANU/TN/0367/1960: AIR 1960 MAD 507.
  1. “Locus Standi”-The right of a party to bring an action or to appear before court.
  • A person acting bonafide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration –  B. Singh Vs Union of India & Ors., AIR 2004 SCW 1494.
  1. “Nemo Debet Esse Judex in Propria Sua Causa”– No man can be judge in his own case. No one ought to be a judge in his own cause.
  • It is an accepted principle of natural justice that a person should not be a judge in his or her own cause.  A reasonable alternative of this principle is that no judge should pass judgment about a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on part of the said judge – U. Kureshi Vs High Court Of Gujarat & Ors., MANU/SC/0209/2009: 2009 (11) SCC 84.
  1. “Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis”– A new law ought to be prospective and not retrospective, in operation.
  • A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law– State of Punjab Vs Bhajan Kaur, MANU/SC/7644/2008: (2008) 12 SCC 112.
  1. “Nullus Commodum Capere Potest De Injuria Sua Propria/ Juri Ex Injuria Non Oritur”– No man can take advantage of his own wrong/ No person can claim any right arising out of his own wrong doing.
  • The maxim “nullus commodum capere potest de injuria sua propria” has a clear directive of law that, a person who by manipulation of a process frustrates the legal rights of someone, should not be permitted to take advantage of his wrong or manipulations – (i) Eureka Forbes Limited Vs Allahabad Bank, MANU/SC/0322/2010: (2010) 6 SCC 193; (ii) Advanta India Limited Vs B.N. Shivanna, MANU/SC/0190/2018: (2018) 14 SCC 666.
  1. “Ratio Decidendi”– The reason or rationale for the decision by Court.
  • 5 Judge Constitution bench – was of the view that a judgment, is not to be read as a decree. The ratio decidendi of a judgment is its reasoning which can be understood only by reading the same as a whole. The ratio decidendi of a case or the principles and reasons on which it is based is different from the relief finally granted or the manner adopted for its disposal – Islamic Academy of Education Vs State of Karnataka, MANU/SC/0580/2003: AIR 2003 SC 3724: 2003 (6) SCC 697.
  1. “Res Ipsa Loquitur– The thing speaks for itself.
  • In a case where negligence is evident, the principle of res ipsa loquituris applied and the complainant doesn’t have to prove anything as the thing proves itself. In such a case it is the responsibility of the respondent to prove that he has taken care and done his duty to repel the charge of negligence; for eg. a case of mismatch blood transfusion is one of the illustrations given to indicate the application of res ipsa loquitur –  Kishan Rao Vs Nikhil Super Speciality Hospital & Ors., MANU/SC/0332/2010: 2010 (5) SCC 513: 2010 (4) JT 630 SC.  
  1. “Ubi Jus Ibi Remedium Est”– For every wrong, the law provides a remedy. There is no wrong without a remedy – where there is a right, there is a remedy – every right when it is breached must be provided with a right to a remedy.
  • In our jurisprudence it is not pleasant to turn down the prayer for high prerogative writs on the negative plea of alternative remedy, since the root principle of law married to justice, is ubi jus ibi remedium– Shiv Shanker Dal Mills Vs State of Haryana. MANU/SC/0032/1979: AIR 1980 SC 1037: [1980] 2 SCC 437.
  1. “Volenti Non Fit Injuria– To the consenting, no injury is done.
  • One of the defense recognized in common law against action was brought up in Rylands Vs Fletcher which was ‘the Consent of the plaintiff’ i.e. violenti non fit injuria – Kaushnuma Begum & Ors.  Vs The New India Assurance Co. Ltd. & Ors., MANU/SC/0002/2001: AIR 2001 SC 485: 2001 (2) SCC 9.
  1. “Falsus in Uno Falsus in Omnibus”– False in one thing, false in everything.
  • the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an Accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained –  Jayapal Vs State of Tamil Nadu & Ors., MANU/SC/1072/2019: AIR 2019 SC 3727: 2019 (8) SCC 342.
  1. “Lex specialis derogat legi generali1”– Special law repeals general laws.
  • Court applied the said principle to hold that Orissa Agricultural Produce Markets Act, 1956 was a special act, so, the provisions would prevail over the provisions of the general act – the Orissa Municipality Act, 1950 – Talcher Municipality Vs Talcher Regulated Mkt. Committee & Ors., MANU/SC/0559/2004: AIR 2004 SC 3954: 2004 (6) SCC 178.
  1. “Nemo debetbis vexaripro una et eadem causa” – A man shall not be vexed twice for one and the same cause.
  • The Rule against double punishment is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be punished twice for one and the same offence. Article 20 of the Constitution provides that no person shall be punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offence are distinct – Department of Customs Vs Sharad Gandhi, MANU/SC/0295/2019: 2019 (3) SCALE 447.
  1. “Nemo Moriturus Praesumitur mentire– a man will not meet his maker with a lie in his mouth. – the underlying principle of Law of Evidence in India which also proceeds on the basis that “a dying man hardly ever lies”.
  • It was held that principle on which dying declarations are admitted in evidence is based upon the legal maxim “Nemo meritorious prasumiter mentire” i.e., a man will not meet his maker with a lie in his mouth – (i) Uka Ram Vs State of Rajasthan, MANU/SC/0242/2001: AIR 2001 SC 1814: 2001 (5) SCC 254
  1. “Mandamus”– means ‘We command’. A writ of Mandamus is an order or a command that is given by a superior court such as Supreme Court or a high Court to an inferior Court/ Tribunal to perform, or refrain from performing, a particular act, the performance of which is required by law as an obligation. This power is specifically enshrined in our Constitution – Article 32 and 226.
  • A writ in the nature of Mandamus was issued commanding the State of U.P. to pay post-retiral benefits including pension, gratuity etc. to Petitioner with effect from the date of his superannuation – Ashok Kumar Dixit Vs State of U.P., MANU/UP/0927/2020.

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