Legal Maxims: the First Eight

The exception. An act of God excuses only where the loss is caused by the natural event and not by the defendant's own failure. A wall that would have fallen in an ordinary monsoon does not become an act of God because the rain was heavy. And where liability is absolute, the defence is not available at all: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court held that an enterprise carrying on a hazardous activity is absolutely liable and not entitled to any of the exceptions available under strict liability. That case is worked in [M.C. Mehta v. Union of India].

Do not confuse it with actus curiae neminem gravabit, "an act of the court shall prejudice no one", which is about a court's own mistake and not about natural events.

2. Salus populi est suprema lex

Literally: the welfare of the people is the supreme law.

As a rule: where private interest and public welfare collide, the law prefers public welfare. It is the principle behind every power the State has to restrict what a person may otherwise do.

Where it operates. In the reasonable restrictions permitted on the freedoms in article 19(2) to (6); in the power of eminent domain, by which the State acquires private land for a public purpose on payment of compensation; in public nuisance; in quarantine and public health powers; and in the whole of environmental regulation.

Illustration. A factory owner has every right to run his factory. When its effluent poisons a river that a town drinks from, the State may close it. The private right yields.

The exception, and it is important. The maxim is not a licence. Public welfare justifies a restriction only where a law authorises it and the restriction is reasonable. Article 21 requires a procedure established by law before life or personal liberty is taken, and the welfare of the people is not itself a procedure.

Companion maxim. Salus populi is often quoted with necessitas publica major est quam privata, public necessity is greater than private necessity, which says the same thing from the other side.

3. Nemo tenetur seipsum accusare

MU prints it as "Nemo Tenetur Sepisum Accusare". The maxim is nemo tenetur seipsum accusare.

Literally: no one is bound to accuse himself.

As a rule: a person cannot be compelled to give evidence against himself. It is the rule against self-incrimination and it is a constitutional guarantee in India, not merely a maxim.

Where it operates. Article 20(3): no person accused of any offence shall be compelled to be a witness against himself.

Three conditions have to be satisfied before article 20(3) applies, and listing them is the answer to any question on this maxim. The person must be accused of an offence; there must be compulsion; and the compulsion must be to be a witness against himself, meaning to furnish testimonial material that by itself tends to incriminate.

Illustration. A confession extracted by threat is inadmissible and its extraction is unlawful. Being required to give a specimen signature or a thumb impression for comparison is not, on the accepted view, being a witness against oneself, because it furnishes material for comparison rather than testimony.

The exception. The protection is against compulsion. A statement voluntarily made is not hit by it. And the article protects an accused; a witness who is not accused of an offence is in a different position.

The protection is personal, and that is asked. Article 20(3) protects the person accused from being compelled to be a witness against himself. It gives no right to stop somebody else speaking. So where two suspects are questioned and one chooses to remain silent, he cannot invoke the maxim to prevent the other from making a statement, even one that incriminates him: the other person's statement is not compelled testimony by him, and what weight it carries against him is a question of evidence and not of article 20(3).

Where else it shows. The eleven requirements in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, exist because custodial interrogation is where compulsion actually happens, and they are worked in [D.K. Basu v. State of West Bengal].

4. Leges posteriores priores contrarias abrogant

MU prints it as "Leges postpriores priores contrarias abrogant". The maxim is leges posteriores priores contrarias abrogant.

Literally: later laws repeal earlier contrary laws.

As a rule: where two statutes of the same legislature conflict and cannot be reconciled, the later prevails, and to the extent of the inconsistency the earlier is impliedly repealed.

Where it operates. It is the foundation of the doctrine of implied repeal. It is also why section 6 of the General Clauses Act 1897 exists, since a repeal, express or implied, would otherwise destroy everything done under the earlier Act; section 6 preserves it. Repeal is worked in [Repeal of Statutes, and the Provisions Dealing with Repeal under the General Clauses Act].

Illustration. A 2010 Act says a licence lasts five years. A 2020 Act by the same legislature says every such licence lasts three years and says nothing about the earlier provision. The later provision prevails and the earlier one is impliedly repealed to that extent.

The exception, and it carries marks. Implied repeal is not favoured. A court will strain to read the two provisions together, and will hold there is an implied repeal only where they are so inconsistent that they cannot stand together. And a general later Act does not repeal a special earlier one: that is the maxim generalia specialibus non derogant, general things do not derogate from special ones.

5. Nova constitutio futuris formam imponere debet, non praeteritis

MU prints it as "Nova constituito futris formam imponere debet non praetertis". The maxim is nova constitutio futuris formam imponere debet, non praeteritis.

Literally: a new law ought to impose form upon what is to come, not upon what is past.

As a rule: a statute is presumed to operate prospectively. It is not read as affecting things already done, or rights already accrued, unless the legislature has said so expressly or by necessary implication.

Where it operates. It is the presumption against retrospective operation, worked in full in [Prospective Application and Retrospective Effect]. In the criminal law it is not a presumption but a guarantee: article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged, nor be subjected to a greater penalty than that which might have been inflicted under the law in force at that time.

Authority. In Commissioner of Income Tax v. Vatika Township Private Limited, decided on 15 September 2014, a Constitution Bench put the modern position. Facts. A proviso added to section 113 of the Income Tax Act 1961 by the Finance Act 2002 imposed a surcharge on block assessments, and the Revenue applied it to periods before it came into force. Held. The basis of the principle against retrospectivity is fairness; legislation that modifies accrued rights or imposes obligations, new duties or a new disability is prospective unless a contrary intent is clear. Where a benefit is conferred without a corresponding detriment, a purposive construction may make the statute retrospective, which is why procedural provisions are treated as retrospective. The presumption does not apply to declaratory statutes, which remove doubts about an earlier law. The proviso here was onerous, so the normal presumption applied and it operated prospectively. Why it matters. It gives the maxim, its exceptions and the reason for both in a single judgment.

Two exceptions to name. A procedural amendment can apply to pending proceedings, because nobody has a vested right in procedure. A declaratory or clarificatory amendment operates from the date of the Act it explains.

6. Noscitur a sociis

Literally: a word is known by the company it keeps.

As a rule: where a word of doubtful meaning stands in a list with other words, its meaning may be gathered from those others. The associated words colour it.

Where it operates. It is a subsidiary rule of statutory interpretation and it is on this syllabus twice, here and in [Secondary Rules: Noscitur a Sociis, Ejusdem Generis and Reddendo Singula Singulis].

Illustration. A provision refers to "buildings, structures, walls, fences and other erections". "Erections" standing alone might mean anything erected; in that company it means something of the same physical, permanent kind, and not, say, a scaffolding put up for a day.

Authority. In State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610, the Court both applied and limited the maxim. Facts. Two ward servants of a State run hospital in Bombay were retrenched without the compensation required by section 25F(b) of the Industrial Disputes Act 1947, and the question was whether a hospital is an "industry" within the wide definition in section 2(j), which includes any business, trade, undertaking, manufacture or calling of employers. Held. The hospital was an industry, and the maxim could not be used to cut down "undertaking" by reference to the narrower words around it: noscitur a sociis is a rule of construction which can apply only where the intention of the legislature in associating words of wider import with those of narrower import is in doubt, or the meaning of the wider word is itself in doubt. Why it matters. It supplies the limit on the maxim, which is the half students leave out.

The exception. Where the wider word is clear, the maxim has nothing to work on. It is a tool for doubt, not a general licence to narrow.

7. Expressio unius est exclusio alterius

MU prints it as "Expressio unis est exclusio alterius". The maxim is expressio unius est exclusio alterius.

Literally: the express mention of one thing is the exclusion of another.

As a rule: where a statute expressly mentions certain things, the implication is that things of the same class not mentioned are excluded.

Where it operates. Throughout statutory interpretation, and particularly in reading lists of exceptions, of grounds and of persons entitled.

Illustration. A rule says "a candidate may be exempted from the fee if she is a member of a Scheduled Caste or a Scheduled Tribe". A candidate from some other disadvantaged group is not exempted; the express mention of two categories excludes the rest.

Authority in this book. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is a good illustration of the same instinct at work in a penal provision. Facts. Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 made it an offence for a landlord to receive any premium in respect of the grant, renewal or continuance of a lease, and the appellants had received money under a contract to grant a lease of premises not yet built. Held. The words "grant, renewal or continuance of a lease" suggest a lease that exists, and do not cover an executory agreement to grant one; and where two possible and reasonable constructions can be put on a penal provision, the court must lean towards the one that exempts the subject from penalty. Why it matters here. What was expressly named was three situations, and a fourth outside them could not be brought in.

The exception, and it is a large one. The maxim is a weak aid and is easily displaced. A list may be illustrative rather than exhaustive, and a definition introduced by "includes" is by its nature not exhaustive at all. The maxim applies only where the list is naturally read as complete.

8. Vigilantibus, non dormientibus, jura subveniunt

MU prints it as "Vigilantibus, non domientibus, jura subveniunt". The maxim is vigilantibus, non dormientibus, jura subveniunt.

Literally: the laws assist those who are vigilant, not those who sleep upon their rights.

As a rule: a person who delays in enforcing a right may lose the ability to enforce it. The law fixes time limits and expects them to be observed.

Where it operates. It is the whole justification of the law of limitation.

Section 3(1) of the Limitation Act 1963: subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Those last words are the point. The court applies limitation on its own; the defendant need not plead it.

Illustration. A creditor lends money repayable on 1 March 2024 and does nothing until 2032. His suit will be dismissed, even if the debtor never raises the point, because the ordinary period for a suit on a debt is three years.

Two qualifications that a complete answer names. Limitation ordinarily bars the remedy and does not extinguish the right, which is why a time barred debt paid voluntarily is validly paid; the exception is section 27, under which the right to property is extinguished when the period for a suit for possession expires. And section 5 allows an appeal or application, though not a suit, to be admitted after the period where the applicant satisfies the court that he had sufficient cause for not coming in time.

A worked example

Ashwin's house in Pune is damaged in 2020 when a builder next door excavates carelessly. Ashwin files a suit in 2032.

Vigilantibus, non dormientibus. The suit is out of time and section 3 of the Limitation Act 1963 requires the court to dismiss it, whether or not the builder pleads limitation. Ashwin's right is not extinguished; his remedy by suit is.

Suppose the builder says the collapse was caused by unprecedented rain. He is pleading actus Dei nemini facit injuriam. It will succeed only if the rain, and not his excavation, caused the damage, and only if the rainfall was genuinely beyond what could reasonably have been guarded against.

Suppose the statute under which Ashwin claims compensation was amended in 2031 to raise the amount, and he says the new figure applies to his 2020 claim. Nova constitutio futuris formam imponere debet, non praeteritis. The amendment is presumed prospective, and Vatika Township explains that a provision imposing a burden is prospective while a benefit conferred without detriment to anyone may be read retrospectively.

Suppose the compensation provision lists "damage caused by excavation, blasting or piling". Ashwin's neighbour, whose wall cracked because of vibration from heavy vehicles, cannot bring himself within it: expressio unius est exclusio alterius, subject to the caution that the list must genuinely be read as complete.

And suppose the same provision then says "or any other operation". Now noscitur a sociis and its stronger cousin ejusdem generis come into play, and Hospital Mazdoor Sabha warns that neither can be used unless there is a genuine doubt to resolve.

Distinctions table

What these maxims do NOT mean

A maxim does not override a statute. Where the Act is clear, the maxim has no work to do.

"Act of God" is not any accident. It is an operation of natural forces that no human foresight could reasonably provide against, and even then it is no answer where liability is absolute.

Salus populi does not permit action without law. Article 21 requires a procedure established by law.

Article 20(3) does not protect a person who is not accused of an offence, and it does not protect against every kind of compelled production, only against being compelled to be a witness against oneself.

Implied repeal is not presumed. Courts reconcile where they can, and a general later Act does not repeal a special earlier one.

Noscitur a sociis and expressio unius are weak aids. Both give way to a clear intention and to an inclusive definition.

Quick revision

Actus Dei nemini facit injuriam: an act of God injures no one; a tort defence, close to frustration under Contract Act s.56; unavailable against absolute liability, M.C. Mehta.

Salus populi est suprema lex: public welfare is the supreme law; article 19(2) to (6), eminent domain, public nuisance, environmental regulation; but article 21 still requires a procedure established by law.

Nemo tenetur seipsum accusare: article 20(3); three conditions, accused of an offence, compulsion, being a witness against himself.

Leges posteriores priores contrarias abrogant: implied repeal; not favoured; generalia specialibus non derogant; General Clauses Act s.6 saves what was done.

Nova constitutio futuris formam imponere debet, non praeteritis: presumption against retrospectivity; article 20(1); Vatika Township for the exceptions, procedural and declaratory.

Noscitur a sociis: a word known by its company; Hospital Mazdoor Sabha, applies only where there is a doubt.

Expressio unius est exclusio alterius: express mention excludes the rest; a weak aid, displaced by an inclusive or illustrative list.

Vigilantibus, non dormientibus, jura subveniunt: Limitation Act s.3, dismissal although limitation is not pleaded; s.5, sufficient cause for an appeal or application; s.27 extinguishes the right in a possession case.

Test yourself

1. What is a legal maxim, and what are its limits as an aid?

A legal maxim is a short traditional statement of a legal principle, usually in Latin, which compresses a rule the courts have long applied. Its limits are that it is not a source of law and cannot prevail over a statute; that it is an aid to reasoning and to interpretation rather than a rule that decides a case by itself; and that almost every maxim carries an exception, so an answer that states the maxim without the exception is incomplete.

2. State the maxim about acts of God and its limits.

Actus Dei nemini facit injuriam, the act of God does injury to no one, meaning that a person is not liable for loss caused by an operation of natural forces so unexpected that no human care or skill could reasonably have provided against it. Its limits are that the natural event must have caused the loss, so a defect the defendant should have remedied is not excused by heavy rain; and that where liability is absolute the defence is not available at all, as M.C. Mehta v. Union of India held for enterprises carrying on hazardous activities.

3. What are the three conditions for article 20(3) to apply?

The person must be accused of an offence, so a person against whom no accusation exists is not protected by it. There must be compulsion, so a voluntary statement is outside the article. And the compulsion must be to be a witness against himself, meaning to furnish testimonial material of an incriminating character, which is why furnishing a specimen signature or thumb impression for comparison has not been treated as being within it.

4. Explain implied repeal and the two limits on it.

Leges posteriores priores contrarias abrogant means that where two statutes of the same legislature are irreconcilable the later prevails and repeals the earlier to the extent of the inconsistency, even if it says nothing about repeal. The first limit is that implied repeal is not favoured: a court will read the two together if it can, and will find an implied repeal only where they cannot stand together. The second is generalia specialibus non derogant, that a later general Act does not repeal an earlier special one.

5. When may a statute operate retrospectively despite the presumption?

Commissioner of Income Tax v. Vatika Township Private Limited identifies the situations. Where the legislature has said so expressly or by necessary implication. Where the provision is procedural, because nobody has a vested right in procedure. Where a benefit is conferred without a corresponding detriment to anyone, so that a purposive construction supports retrospective operation. And where the statute is declaratory, that is, passed to remove doubts as to the meaning or effect of an earlier law, of which the words "shall be deemed always to have meant" are a plain indication.

6. What does the Limitation Act do to a right that is not enforced in time?

Section 3(1) requires the court to dismiss a suit, appeal or application made after the prescribed period, and to do so although limitation has not been set up as a defence, which is the statutory form of vigilantibus, non dormientibus, jura subveniunt. The general effect is to bar the remedy and not to extinguish the right, so a time barred debt paid voluntarily is validly paid. The exception is section 27, under which the right to the property itself is extinguished when the period for a suit for possession expires. Section 5 allows an appeal or application, but not a suit, to be admitted late on sufficient cause.