Important Maxims

Dr. Amol Deo Chavhan

Associate Professor of Law
National Law University and Judicial Academy, Assam
 Delegatus non potest delegare

• One to whom power is delegated cannot himself further delegate that

power
• sub-delegate cannot act beyond the scope of power delegated to him
• Separation of power and Delegated legislation
• The maxim is derived from and is most frequently applied in matters
relating to principal and agent but it is not confined (contract of
agency)
• The maxim does not state a rule of law; it is “at most a rule of
construction”
 Delegatus non potest delegare

• Maxim deals with “delegation” by an authority of its statutory

discretion
Factors responsible for Delegated legislation
• Pressure Upon Parliamentary Time
• Technicality
• Flexibility
Power of Legislation
• Experimentation
• Emergency
 Delegatus non potest delegare

• Hemdard Dawakhana vs. Union of India

Supreme Court in this case held that there is no specific bar in our
constitution against the delegation of legislative power by the Legislature
to the Executive. However, it is now well settled that essential legislative
functions cannot be delegated by the legislature to the executive. It means
that the legislative policy must be laid down by the legislature itself and
by entrusting this power to the executive; the legislature cannot create a
parallel legislature.
 Delegatus non potest delegare

• Ultra Tech Cement Limited vs. The Union of India and Ors.
In this Case, the Kerala High Court held that “Sub-delegation implies a
further delegation of the same power, which was originally delegated by
the legislature. The governing principle is that legislative powers must be
exercised by the delegatee himself and by none else. A delegatee cannot
further delegate his power unless the parent law permits it to do so
 Delegatus non potest delegare
May be tested on

Publication

Principle of
Judicial Review
Natural Justice
 Expression unius exclusion alterius
• “The expression of one thing is the exclusion of the other”
• A syntactical presumption may be made that an express reference to one
matter excludes other matters
• It is not necessary to add other words to the list in order to make sense of
the provision
• When something is mentioned expressly in a statute it leads to the
presumption that the things not mentioned are excluded
Example:
• If a Statute refers to Lions and Tigers it only refers to Lions and Tigers
and will not include Leopards’ or any other wild animals.
 Expression unius exclusion alterius

Parbhani Transport Coop. Society v. Regional Transport Authority,

AIR 1960 SC 801.
Expressio unius est exclusio alterius, it is a maxim for ascertaining the
intention of the legislature. Where the statutory language is plain and
the meaning clear, there is no scope for applying the rule
Coluhoun v. Brooks (1886)21 Q.B.D 52).
Expressio Unius Est Exclusio Alterius means that one thing having been
mentioned the other is excluded. Lopes, L.J opines this maxim means a
valuable servant but a dangerous master
 Generalia specialibus non derogant
• General laws do not prevail over special laws
• Generalia specialibus non derogant is a Latin maxim. It is a maxim
used for statutory interpretation.
• R v Greenwood, [1992] 7 O.R. (3d) 1, “The maxim generalia
specialibus non derogant means that, for the purposes of
interpretation of two statutes in apparent conflict, the provisions of a
general statute must yield to those of a special one.”
• Lalonde v Sun Life, [1992] 3 SCR 261
• “The principle is, therefore, that where there are provisions in a
special Act and in a general Act on the same subject which are
inconsistent, if the special Act gives a complete rule on the subject, the
expression of the rule acts as an exception to the subject-matter of the
rule from the general Act.”
 Generalia specialibus non derogant
• LIC v. D.J Bahadur, (1981) 1 SCC 315, wherein it has been held that in
determining whether a statute is a special or a general one, the focus
must be on the principal subject-matter plus the perspective. For
certain purposes, an act may be general and for certain other
purposes, it may be special. Thus, to give justice to the purpose of
specific law
 In pari delicto potior est condition possidentis
• It is a Latin phrase for "in equal fault ,better is the condition of the
possessor."
• This means when the parties are equally at wrong, the condition of the
possessor is considered to be better.
• Simply put, it means a person in a wrongful act cannot sue another person
in the same wrongful act. When two parties have equally wronged, courts
will generally not interfere with the status quo, which is the reason why
the possessor is at benefit.
• The doctrine is also known as the dirty hands or unclean hands doctrine.
 In pari delicto potior est condition possidentis
• The phrase means, in essence, that if both parties are equally at fault or
the plaintiff is at greater fault, the court will not involve itself in resolving
one side's claim over the other, and whoever possesses whatever is in
dispute may continue to do so in the absence of a superior claim
• It is also important to note that S.23 and S.65 of the Indian Contract Act,
1872 is silent about the right to recover money paid or property passed
under Void Agreements. S.23 of the Indian Contract Act, 1872 inter-alia
says:
• “Every Agreement of which the object or consideration is unlawful is
void”
 In pari delicto potior est condition possidentis
SEC v. Lee, (2010)720 F. Supp. 2d 305,
• "To successfully apply the doctrine, the plaintiff must be an active,
voluntary participant in the wrongful conduct, and the plaintiff's
wrongdoing must be at least substantially equal to that of the defendant....
Furthermore, under New York law, the doctrine of in pari delicto may be
subject to the "adverse interest" exception, which applies when an agent
is defrauding the principal exclusively for the agent's own benefit and to
the detriment of the corporation.... Another exception to the in pari delicto
defense is the "innocent insider" exception, which provides that if there is
another agent within the corporation who had no knowledge of the fraud,
and who had the will and the ability to stop the fraud had it come to his or
her attention, the in pari delicto defense will fail
 Utresvalet potior quam pareat

The maxim “Ut Res Magis Valeat Quam Pereat” is a rule of construction
which literally means the construction of a rule should give effect to the
rule rather than destroying it .i.e., when there are two constructions
possible from a provision, of which gives effect to the provision and the
other renders the provision inoperative, the former which gives effect to
the provision is adopted and the latter is discarded.
 Utresvalet potior quam pareat

The maxim “Ut Res Magis Valeat Quam Pereat” is a rule of construction
which literally means the construction of a rule should give effect to the
rule rather than destroying it .i.e., when there are two constructions
possible from a provision, of which gives effect to the provision and the
other renders the provision inoperative, the former which gives effect to
the provision is adopted and the latter is discarded.
Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217, where the
Supreme Court struck down the state legislation as it was violative of
constitution and ultra-vires of the legislative competency.
 Utresvalet potior quam pareat

CST v. Mangal Sen Shyam Lal AIR 1975 SC 1106

“A statute is supposed to be an authentic repository of the legislative will
and the function of a court is to interpret it “according to the intent of
them that made it.”
K.P. Varghese v. ITO [1981] 131 ITR 597 (SC)
It is because the Legislature is presumed to enact a law, which does not
contravene or violate the constitutional provisions
 Utresvalet potior quam pareat

(CIT v. Federation of Indian Chambers of Commerce &

Industry[1981] 130 ITR 186 (SC).)
The doctrine of ut res magis valeat quam pereat is also applicable in the
interpretation of an instrument, document or deed. The interpretation
which upholds its validity should be preferred.
Prasad Vijaivargiya v. CIT [1976] 102 ITR 748 (Cal.) This doctrine,
however, cannot be pushed so far as to alter the meaning of the clear
words used in an enactment and to, in effect, repeal statutory provisions,
by making these useless without holding them void.
 Utresvalet potior quam pareat

Tinsukhia Electric Supply Co. Ltd. v. the State of Assam (1990),

the Supreme Court held that the courts strongly lean against
construction that tends to reduce a statute to futility. A statute or any
enacting provision therein must be so construed as to make it effective
and operative. However, if a statute is absolutely vague and its language
is wholly intractable and absolutely meaningless, the statute could be
declared void for vagueness.
Swami Atmananda v. Sri Ramakrishna Tapovanam (2005), it was
held by the Supreme Court that the statute must be read in such a
manner so as to give effect to all the provisions thereof. A statute must be
read reasonably and construed in a manner to make it workable.
utresvalet potior quam pareat,
reddendo singular sigulis
expressum facit cessare taciturn,
jure nature sunt immutabillia,
im bonam partem