Ubi Jus Ibi Remedium

Why it matters here. It is ubi jus ibi remedium applied to a constitutional right: the right in article 21 existed, the existing remedy of release was useless to a man already free, so the Court made a remedy fit the right.

Facts. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, decided on 5 November 1993. Allottees complained to the consumer forums that statutory development authorities had delayed possession of houses, failed to complete flats and built defectively. The authorities argued that a statutory body performing a statutory function was outside the Consumer Protection Act.

Held. Housing construction by a statutory authority or a private builder is a service under the Act, and a complaint was maintainable. A Commission may award compensation for harassment, mental agony and oppression by a public functionary, on a finding recorded carefully and not lightly; and where the compensation comes out of public funds the department must recover it from the officers responsible, apportioned among them. In one appeal the Court directed the Lucknow Development Authority to fix responsibility within six months and to recover the Rs. 10,000 awarded from the officers' salary.

Why it matters here. It is the judgment in which the Supreme Court invokes ubi jus ibi remedium by name, tracing it through Ashby v. White, and it shows the maxim being used to give a remedy against a public body in a forum designed for consumers.

And the constitutional line continues. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, holds that a claim in public law for compensation for the contravention of a fundamental right is a remedy available under articles 32 and 226, distinct from and in addition to the private law remedy in tort, and that sovereign immunity does not apply to it. Chapter [Constitutional Tort] takes that line in full.

The limits of the maxim

An answer that only praises the maxim is a weak answer. The limits are as examinable as the principle.

It applies to legal rights only. A moral or a social claim is outside it. A person who is treated ungratefully has no remedy, because he has no right.

It does not create rights. It presupposes a right and supplies enforcement. It cannot be used to argue that because a harm ought to be remedied a right must exist.

It yields where the law itself provides otherwise. Where a statute gives a right and prescribes a particular remedy, that remedy is ordinarily the only one, and where the law bars a claim by limitation the maxim does not revive it.

It does not touch damnum sine injuria. Where no right is infringed there is nothing for the maxim to work on, however great the loss.

A worked example

Seema is refused a caste certificate to which she is entitled under a statutory scheme, and the refusal is deliberate. There is no provision in the scheme for compensation, and the only remedy named is an appeal to a departmental authority, which takes two years and eventually orders the certificate to be issued. By then she has lost her place in a college.

Is there a right? Yes, a statutory right to the certificate.

Is the named remedy adequate? It got her the certificate, and it did nothing about the loss of the college place.

Does the maxim help? It is the argument for a further remedy: a writ petition under article 226 in which compensation may be claimed for the arbitrary exercise of power, on the reasoning of Rudul Sah and Lucknow Development Authority v. M.K. Gupta, where the Supreme Court held that a public authority whose functionary causes harassment may be made to compensate and to recover the amount from the officer responsible.

Where does it stop? If Seema had no right to the certificate at all, the maxim gives her nothing, however badly she was treated. The maxim enforces rights; it does not invent them.

What it does NOT mean

It does not mean every wrong has a remedy in tort. Some wrongs are remedied by a criminal prosecution, some by a statutory forum, some by a writ.

It does not mean a court may ignore limitation or jurisdiction. The maxim operates within the law, not against it.

It does not mean the remedy must be damages. Injunction, restitution, a declaration or a direction may be the appropriate remedy.

It does not answer the question whether a right exists. That is the prior question and the maxim is silent on it.

Quick revision

1. Ubi jus ibi remedium: where there is a right there is a remedy. Jus is a legal right; remedium is the means of enforcing it.
2. It supports the torts actionable without proof of damage, and it is the companion of injuria sine damno.
3. Ashby v. White (1703): damages to an elector wrongfully prevented from voting.
4. Rudul Sah v. State of Bihar, AIR 1983 SC 1086: compensation under article 32 for fourteen years of illegal detention, because release alone was no remedy.
5. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: the maxim invoked by name; compensation against a public authority, recoverable from the erring officers.
6. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: public law compensation is distinct from the private law action and is not met by sovereign immunity.
7. Limits: legal rights only; it creates no rights; it yields to a statutory scheme and to limitation; it has nothing to work on in damnum sine injuria.

Test yourself

1. Explain the maxim ubi jus ibi remedium and its application in India. The maxim means that where the law confers a right it also provides the means of enforcing it, since a right no court will protect is not a right at all. Jus means a legal right and remedium the means of redress, so the maxim is confined to legal rights and does not extend to moral claims. Its classical application is Ashby v. White, decided in 1703, where an elector wrongly prevented from voting recovered damages although the result was unaffected. Its most important Indian application is constitutional: in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, the Supreme Court held that its power under article 32 is not confined to ordering release and awarded compensation for fourteen years of illegal detention, saying that otherwise the right would be a paper guarantee. In Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Court invoked the maxim by name in holding that a consumer forum may compensate a citizen harassed by a public authority, and that the amount must be recovered from the officers responsible.

2. What are the limitations of the maxim? Four. It applies only to legal rights, so a moral or social grievance is outside it. It does not create rights; it presupposes them and supplies enforcement, so it cannot be used to argue backwards from a harm to a right. It yields to the law itself: where a statute confers a right and prescribes a remedy, that remedy is ordinarily exclusive, and the maxim does not defeat a bar of limitation or a want of jurisdiction. And it has nothing to operate on where no right has been infringed, which is damnum sine injuria, so that a trader ruined by lawful competition gets nothing from it.

3. How does the maxim relate to injuria sine damno? They are two sides of the same proposition. Injuria sine damno says that the violation of a legal right is actionable without proof of loss, because the law presumes damage. Ubi jus ibi remedium explains why that must be so: if proof of loss were required, a right whose violation caused no measurable loss would be unenforceable, and an unenforceable right is not a right. Ashby v. White is the case in which both appear together, and the Supreme Court of India described that decision, in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, as an application of ubi jus ibi remedium in favour of the elector.