Legal maxims

‘ Legal maxims ’ means fundamentals or the first principles of law. They are
manifestly founded in reason, public convenience and necessity and they are
the basis of law and may be either directly applied, or qualified or limited,
according to the exigencies of the particular case and novelty of the
circumstances which present themselves.

Maxims were originated through judgments as well as through wisdom of

jurist. They were based on justice, reasoning, logic and the social needs.
These maxims also supplemented statutory law in the earlier times.

1. Salus populi suprema lex

The safety of the people is the Supreme Law. This is the
concept behind the principle salus populi suprema lex. This principle
originated in the works of the Roman historian Cicero in the 1st century
BCE.

•Law has to serve common good.

•Public wellbeing prevails over private interests.
•Social welfare is the yardstick of judging utility of laws.

1.1 Jeremy Bentham’s theory of Utilitarianism

Jeremy Bentham’s theory of Utilitarianism centers on the principle of

utility, which holds that the best action or policy is the one that
promotes the greatest happiness for the greatest number of people.
This approach is grounded in a consequentialist ethical framework,
where the morality of a law or action is judged by its outcomes,
primarily focusing on increasing pleasure and reducing pain for the
majority.

The legal application of Utilitarianism suggests that laws should be

evaluated based on their effectiveness in maximizing overall social
welfare. Bentham believed that legal systems should focus on the
practical consequences of legislation, advocating for reforms that
would lead to the greatest good for society.
This idea aligns with the maxim “salus populi suprema lex”, which
translates to “the welfare of the people is the supreme law.” Both
concepts prioritize the well-being of the community, emphasizing that
the legitimacy of laws stems from their ability to ensure the welfare,
security, and happiness of the populace.

In practical terms, Bentham’s theory would encourage lawmakers to

draft, evaluate, and amend laws based on a utilitarian calculus: the
law’s ability to deliver maximum benefit to the greatest number.
Similarly, the maxim “salus populi suprema lex” underlines that the
ultimate goal of any legal system is the protection and well-being of
the people. Thus, the two ideas converge on the notion that the utility
or value of law is contingent on its capacity to enhance collective
happiness and public welfare.

Judgement-

Nina Devi vs. The State of Jharkhand and Others (2016)

The Jharkhand High Court, in its judgment, directed the authorities to

release the due pension to Nina Devi. The court held that the right to
pension is a significant part of social welfare and is not a bounty or a
gratuitous payment but a right that accrues due to the service
rendered by the deceased. Denying or delaying it violated her rights
and placed an undue burden on her livelihood, especially considering
her financial needs as a widow.

Applying Jeremy Bentham’s theory of Utilitarianism to this judgment,

the court’s decision can be understood as promoting the greatest
happiness for the affected individual (Nina Devi) while also ensuring
the fulfillment of social obligations.

1.2. Application of maxim in Indian legal

system
In the context of the Indian legal system, this principle was
prominently invoked during the COVID-19 pandemic to justify
restrictions on individual freedoms in the interest of public health and
safety.

During the nationwide lockdowns, the government implemented

various restrictions under legal frameworks such as the Disaster
Management Act, 2005 and the Epidemic Diseases Act, 1897. These
measures, including curfews, travel bans, and closure of businesses,
were imposed to prevent the spread of the virus and safeguard public
health. Though these actions limited certain fundamental rights,
particularly the right to movement (Article 19) and the right to
personal liberty (Article 21), they were deemed constitutionally valid
under the principle of salus populi suprema lex.

The Supreme Court of India, in various instances, upheld these

restrictions, emphasizing that the state has a duty to balance
individual freedoms with the collective right to life and public health.
The Court recognized that temporary curtailment of private freedoms
is necessary and proportionate when the larger public good is at stake,
as long as the measures are lawful and not arbitrary.
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Section 19 of the Bharatiya Nyaya Sanhita (BNS) states that an

act that is likely to cause harm is not an offense if it is done in good
faith to prevent greater harm and without criminal intent.

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation, and Resettlement Act, 2013 permits
the government to acquire private land for projects that serve public
purposes, such as infrastructure development, roads, or hospitals.
While this involves the deprivation of private property rights, it is
justified by the greater need for public welfare. The government must,
however, follow due process, provide adequate compensation, and act
in good faith, ensuring the acquisition is for the benefit of the public.

Legal Analysis:

In both examples, the actions are not treated as offences as long as

they are performed in good faith, with a legitimate aim of protecting
public interests or preventing harm. The law recognizes that certain
extraordinary circumstances demand actions that would normally
violate legal rights but are justified by the necessity to avert a larger
crisis.

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The Directive Principles of State Policy (DPSP), enshrined in Part

IV of the Indian Constitution, are guidelines for the State to create a
just and equitable society. These principles, although non-justiciable,
aim at establishing a welfare state, where the government takes
proactive steps to promote social and economic well-being.

Article 38 mandates the State to strive to promote the welfare of the

people by securing a social order in which justice—social, economic,
and political—shall inform all institutions of national life. It also
instructs the State to minimize inequalities in income, status, and
opportunities.

Article 39 directs the State to ensure that the distribution of wealth

and resources benefits all citizens equitably, aiming for the welfare of
the common people rather than a select few.
Art. 39. Certain principles of policy to be followed by the State. The
State shall, in particular, direct its policy towards securing-

(a)that the citizens, men and women equally, have the right to an
adequate means to livelihood;

(b)that the ownership and control of the material resources of the

community are so distributed as best to sub serve the common good;

©that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;

(d)that there is equal pay for equal work for both men and women;

(e)that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength;
 Judgement-
In the case Goa Foundation and Another v. The Konkan Railway
Corporation and Others, AIR 1992 Bom 471, the Goa Foundation
opposed the construction of the Konkan Railway track on
environmental grounds, arguing that it would cause significant
ecological damage to the region. The opposition focused on the
environmental impact of the project, particularly concerns over
deforestation, disruption of natural habitats, and potential damage to
the Western Ghats.
The ruling relied on the principle of salus populi suprema lex. This
principle underscores that actions taken in the public interest,
particularly when they promote social and economic development, can
take precedence over other concerns, provided that due diligence is
exercised to minimize negative impacts.

2. Ubi jus ibi remedium

Where there is a right, there is a remedy. Every grievance

has a remedy in law.

Jus signifies here “the legal authority to do or to demand something”;

and remedium may be defined to be the right of action, or the means
given by law, for the recovery or assertion of a right. According to this
elementary maxim, whenever the common law gives a right or
prohibits an injury, it also gives a remedy. If a man has a right, he
must, it has been observed, “have a means to vindicate and maintain
it, and a remedy if he is injured in the exercise and enjoyment of it.

2.1. Applicability of this maxim in India

Social justice is a pervasive presence; and so, save in special situations

it is fair to be guided by the strategy of equity by asking those who
claim the service of the judicial process to embrace the basic rule of
distributive justice, while moulding the relief, by consenting to restore
little sums, taken in little transactions, from little persons, to whom
they belong. It was, therefore, held that the petition for direction for
refund of enhanced rate of market fee paid by traders under mistake of
law, Supreme Court having subsequently declared the enhanced levy
to be ultra vires Held, writ cannot be turned down on the negative plea
of alternative remedy and must be sustained on the basis of rule of 'ubi
jus ibi remedium’ and ‘equity’.

2.2. History
Historically, the remedy was at the mercy of the ruler. Later in English
system, the remedy came to be recognized through the principle of
equity.
A right is a right only when it has a remedy. A remediless right is of no
consequence.

Ashby v. White (1703) 92 ER 126.

- Mr. White, a returning officer wrongfully did not allow Mr.

Ashby, a qualified voter to vote for the elections.

- The candidate for whom Ashby intended to vote, won the

election. However, Ashby filed a suit against the returning
officer for damages.

The court held In favor of Ashby, stating that the right to vote is a legal
right, and if violated, there must be a remedy. The House of Lords
confirmed this judgment, emphasizing that for every violation of a
legal right, there must be a legal remedy.

Lord Chief Justice Sir John Holt (1642–1710) was an influential

English judge, particularly known for his judgments in cases during the
late 17th and early 18th centuries.
The legal maxim "Ubi jus ibi remedium” asserts that if a legal right is
violated, the law must provide a remedy to address the breach. Lord
Holt applied this maxim in several rulings, supporting the idea that
rights without remedies are meaningless.
 “If the plaintiff has a right, he must of necessity have a means to
vindicate and maintain it, and a remedy if he is injured in the exercise
or enjoyment of it; and, indeed, it is a vain thing to imagine a right
without a remedy, for want of right and want of remedy are
reciprocal… for a damage is not merely pecuniary, but an injury
imports a damage, when a man is thereby hindered of his right.”

This quote is attributed to Lord Chief Justice Sir John Holt and is a
foundational principle in English common law. It encapsulates the idea
that for every legal right, there must be a remedy available in the
courts if that right is infringed. Holt CJ is emphasizing that a right
without the means to enforce it is meaningless, and that an injury to a
person's rights should not only be measured in monetary terms but
also in terms of the obstruction or deprivation of those rights.

Sardar Amarjit Singh Kalra & Ors. V. Pramod Gupta & Ors., AIR
2003 SC 2588
The primary issue in this case was whether the legal proceedings
related to a property dispute could continue after the death of one of
the litigants.
The court ruled that the legal heirs of the deceased party could
continue the litigation, as the rights in question survived the death of
the individual. It reaffirmed the idea that legal remedies must be
available to address grievances, aligning with the principle of ubi jus ibi
remedium.

2.3 Essentials

1. Injury to Plaintiff’s Right:

The plaintiff must show that a legal right, which is enforceable under
law, has been violated. It is not enough to merely claim that something
unfair happened; there must be an infringement on a legally
recognized right.

Example: In Ashby v. White (1703), the plaintiff, Ashby, was wrongfully

prevented from voting in an election, even though he was legally
entitled to do so. The court held that his legal right to vote had been
infringed, and thus, he was entitled to a remedy. This case establishes
that an injury to a legal right warrants a remedy, even if no damage
occurred.

2. Right Should Be Legally Recognizable:

The right claimed by the plaintiff must be recognized by law. There can
be no remedy for violations of rights that are not legally enforceable.
Moral or social rights, which are not codified in law, do not meet this
requirement.

Example: In Donoghue v. Stevenson (1932), Mrs. Donoghue consumed

a ginger beer with a decomposed snail in it. Although she did not have
a contract with the manufacturer (her friend bought the bottle), the
court recognized her right to claim compensation based on the duty of
care owed by the manufacturer under negligence law. Her right to
safety from defective products was legally recognized.

3. The Wrong Should Result in Legal Damage:

For a plaintiff to claim a remedy, they must suffer a legal injury or

damnum, which means actual damage, whether physical, financial, or
reputational. However, even where no actual damage occurs,
infringement of a legal right can still be actionable under the concept
of injuria sine damno.

Example: In Bhim Singh v. State of Jammu & Kashmir (1985), Bhim

Singh, an MLA, was unlawfully arrested and detained, preventing him
from attending an assembly session. Although no physical harm was
done, his legal right to attend the assembly session was violated. The
Supreme Court awarded him damages because his right was violated,
even in the absence of physical damage.

4. Wrong Should Not Be a Mere Moral Wrong:

The maxim applies only to legal wrongs, not moral or ethical wrongs.
Courts do not enforce moral duties, promises, or emotional
commitments unless there is a legal obligation attached to them.
Example: In Balfour v. Balfour (1919), a husband promised to pay his
wife a monthly allowance while he was away, but later stopped making
the payments. The court held that the agreement was not legally
enforceable, as it was a domestic arrangement based on personal trust
and not a contract. The wife could not claim a remedy as no legal right
was violated, and it was merely a moral obligation.

2.4. Remedies

1. Injunction

An injunction is a court order that restrains a party from doing an act or

compels them to perform a certain act. Injunctions are often granted in
cases where mere compensation isn't adequate, and stopping an
action is necessary to prevent irreparable harm.

Example:
Kuldip Singh v. Subhash Chander Jain (2000 SC 1410) – In this case, the
court issued an injunction preventing the defendants from carrying out
illegal construction. The plaintiff had a legal right to the property, and
the court granted an injunction to protect that right from infringement.

2. Declaration

A declaratory remedy is where a court declares the rights of the parties

without ordering any specific action or awarding damages. It serves to
clarify the legal position.

Example:

Bachhittar Singh v. State of Punjab (1962 AIR 395, 1963 SCR Supl. (1)
407) – In this case, the Supreme Court issued a declaratory judgment
regarding the status of an order passed by a public servant, thus
clarifying the rights and obligations between the parties involved.

3. Constitutional Remedies
 Under Article 32 and Article 226 of the Indian Constitution,
constitutional remedies are provided for the enforcement of
fundamental rights. Article 32 allows a person to directly approach the
Supreme Court for the enforcement of their fundamental rights.

Example:

Neelabati Behera v. State of Orissa (1993 AIR SC 1960) – In this

landmark case, the Supreme Court awarded compensation to Neelabati
Behera, whose son died in police custody due to custodial violence.
The Court held that compensation could be claimed under Article 32
for the violation of fundamental rights. This case affirmed that
constitutional remedies are available for the enforcement of
fundamental rights, and that public officials can be held accountable
for violating these rights.

Each of these remedies ensures that wherever a right exists, there is a

corresponding means to protect or enforce that right, adhering to the
principle of ubi jus ibi remedium.

3.Ignorant facti excusat, ignorant juris non

excusat

Ignorance of fact maybe excused but ignorance of law

excuses no one.

3.1 Presumption of legal knowledge

With respect to this “presumption of legal knowledge,” we may

observe that, although ignorance of the law does not excuse persons
so as to exempt them from the consequences of their acts, as, for
example, from punishment for a criminal offence, or from damages for
breach of contract, yet the law takes notice that there may be a
doubtful point of law of the true solution of which a person may be
ignorant; and it is quite evident that ignorance of the law often in
reality exists. It would, for instance, be absurd to assert that every
person is acquainted with the practice of the courts; although, in such
a case, there is a presumption of knowledge to this extent, that
ignorantia juris non Excusat, the rules of practice must be observed,
and a deviation from them may entail consequences detrimental to the
suitor. It is, therefore, in the above qualified sense alone that the
saying, that “all men are presumed cognisant of the law”, must be
understood.

Scope of doctrine

Ignorance may be either of law or of fact. If the heir is ignorant of the

death of his ancestor, he is ignorant of a fact; but if, being aware of the
death, and of his own relationship, he is nevertheless ignorant that
certain rights have thereby become vested in himself, he is ignorant of
the law. Such is the example given to illustrate the distinction between
ignorantia juris and ignorantia facti in the civil law, where the general
rule is thus laid down: ignorance of a material fact may excaise a party
from the legal consequences of his conduct; but ignorance of the law,
which every man is pre-sumed to know, does not afford excuse.

Bharatiya Nyaya Sanhita 2003

Sec. 14. Nothing is an offence which is done by a person who is, or who
by reason of a mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.

Illustration.

A, an officer of a Court, being ordered by that Court to arrest Y, and,

after due enquiry, believing Z to be Y, arrests Z. A has committed no
offence.
■Sec.17- Nothing is an offence which is done by any person who is
justified by law, or who by reason of a mistake of fact and not by
reason of a mistake of law in good faith, believes himself to be justified
by law, in doing it.

Illustration.

A sees Z commit what appears to A to be a murder. A, in the exercise,

to the best of his judgment exerted in good faith, of the power which
the law gives to all persons of apprehending murderers in the fact,
seizes Z, in order to bring Z before the proper authorities. A has
committed no offence, though it may turn out that Z was acting in self-
defence.

In the case of State of Orissa v. Khora Chasi (1978) Cri L J 1305, the
accused shot an arrow at the deceased, mistakenly believing he was
targeting an animal. The court acquitted the accused on the grounds of
mistake of fact, as the evidence demonstrated that the accused
genuinely lacked the intention to kill a human being. This case
exemplifies the principle of “ignorantia facti excusat”, where a factual
mistake negated the mens rea (guilty mind) necessary for criminal
liability. Since the accused was under the genuine belief that he was
acting lawfully by aiming at an animal, the mistake of fact showed the
absence of intention to commit the offense, thus leading to his
acquittal. This case highlights how mens rea can be negated when a
person acts under a reasonable and honest mistake of fact.
Under Section 20 of the Indian Contract Act, 1872, an agreement is
considered void when both parties are under a mistake regarding a fact
that is essential to the contract. This type of mistake is termed bilateral
mistake, where both parties misunderstand a fundamental fact about
the subject matter, rendering the contract unenforceable. For example,
if both parties mistakenly believe a specific item exists but it does not,
the contract would be void due to the lack of consensus ad idem
(meeting of minds).
Under contract law, this maxim aligns with the idea that a mistake of
fact (ignorantia facti) can render an agreement void if it affects the
fundamental essence of the contract.

A bilateral mistake (both parties are mistaken) makes the contract

void. A mistake of fact (covered under ignorantia facti excusat)
excuses the parties and nullifies the agreement since no true “meeting
of minds” occurred.

Illustration

(b) A agrees to buy from Ba certain horse. It turns out that the horse
was dead at the time of the bargain, though neither party was aware of
the fact. The agreement is void.

1. Unilateral Mistake:
A unilateral mistake occurs when only one party is mistaken about a
fact related to the contract. According to Indian contract law, a
unilateral mistake does not generally render the contract void or
voidable. This is particularly true in cases of mistakes about law, where
the contract is not voidable simply because one party misunderstood
the law. The rationale is that each party should exercise due diligence.

Section 21: Mistake as to Law in Force in India

Section 21 clearly states that a mistake as to a law in force in India

does not make the contract voidable. This is based on the principle
ignorantia juris non excusat (ignorance of the law is no excuse),
meaning parties are presumed to know the law in India.

However, if the mistake pertains to a law that is not in force in India

(such as a foreign law), the law treats it as a mistake of fact. Under
these circumstances, a mistake as to foreign law can potentially make
the contract voidable, similar to how a mistake of fact might, because
the parties are not expected to be familiar with laws outside their
jurisdiction.

The principle "Ignorantia facti excusat”, meaning “ignorance of fact

excuses,” plays a crucial role in criminal law, particularly in negating
mens rea (the guilty mind required for most crimes). A mistake of fact
occurs when a person, due to a misunderstanding or unawareness of a
factual situation, lacks the intent to commit a crime. In such cases, the
absence of mens rea can absolve the individual of criminal liability. For
instance, if a person mistakenly takes another’s bag, genuinely
believing it to be their own, they lack the intent to steal and may be
excused under this doctrine. This defense, however, applies only to
mistakes of fact, not mistakes of law, as reflected in the maxim
“ignorantia juris non excusat” (ignorance of the law does not excuse).
A well-known legal example is R v Tolson (1889), where a woman,
mistakenly believing her husband had died at sea, remarried. She was
charged with bigamy, but the court held that her genuine and
reasonable belief in the death of her husband negated her mens rea
for the crime.