At the outset, we must deal with the criticism leveled against Bharat Kale and Japani Sahoo that they place undue reliance on legal maxims. It was argued that legal maxims can neither expand nor delete any part of an express statutory provision, nor can they give an interpretation which is directly contrary to what the provision stipulated. Their operation can be excluded by statutes but operation of statutes cannot be excluded by legal maxims.
14. It is true that in Bharat Kale and Japani Sahoo this Court has referred to two important legal maxims. We may add that in Vanka Radhamanohari, to which our attention has been drawn by the counsel, it is stated that the general rule of limitation is based on Latin maxim ‘vigilantibus et non dormientibus, jura subveniunt’, which means the vigilant and not the sleepy, are assisted by laws. We are, however, unable to accept the submission that reliance placed on legal maxims was improper. We are mindful of the fact that legal maxims are not mandatory rules but their importance as guiding principles can hardly be underestimated. Herbert Broom in the preface to the First Edition of his classical work “Legal Maxims” (as seen in Broom’s Legal Maxims, Tenth Edition, 1939) stated:
“In the Legal Science, perhaps more frequently than in any other, reference must be made to the first principles. Indeed, a very limited acquaintance with the earlier Reports will show the importance which was attached to the acknowledged Maxims of the Law, in periods when civilization and refinement had made comparatively little progress. In the ruder ages, without doubt, the great majority of questions respecting the rights, remedies, and liabilities of private individuals were determined by an immediate reference to such maxims, many of which obtained in the Roman law, and are so manifestly founded in reason, public convenience, and necessity, as to find a place in the code of every civilized nation. In more modern times, the increase of commerce, and of national and social intercourse, has occasioned a corresponding increase in the sources of litigation, and has introduced many subtleties and nice distinctions, both in legal reason and in the application of legal principles, which were formerly unknown. This change, however, so far from diminishing the value of simple fundamental rules, has rendered an accurate acquaintance with them the more necessary, in order that they may be either directly applied, or qualified, or limited, according to the exigencies of the particular case, and the novelty of the circumstances which present themselves.
In our opinion, therefore, use of legal maxims as guiding principles in Bharat Kale and Japani Sahoo is perfectly justified.
Supreme Court of India
Sarah Mathew vs Inst., Cardio Vascular Diseases & ... on 26 November, 2013
REPORTABLE
Citation; 2014 ALL SCR 309
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