The Curious Case of 'Casus Omissus'

 

INTRODUCTION 

 

Today, I will talk about another interesting concept of law, casus omissus. It is a Latin term that means “case omitted.” Basically, casus omissus is “a matter which should have been but has not been provided for in a statute.”   

 

MEANING AND ORIGIN 

 

Casus omissus finds its origin in the Latin Maxim “casus omissus pro omisso habendus est” that means that a case omitted is to be held as intentionally omitted. Casus omissus also reflects the age-old tussle of the courts and the legislature. Generally, the Courts are not inclined to interfere when a casus omissus is revealed. Therefore, in such situations, the legislature may add such words to the statute that are appropriate to cover the casus omissus.

 

APPLICATION 

 

The principle of casus omissus is a tool of statutory interpretation. Casus omissus may arise “when a statute makes specific provisions in regard to several enumerated cases or objects but omits to make any provision for a case or object which is” either analogous or similar or identical to those already enumerated. Such case or object or situation may have been “omitted by inadvertence or because it was overlooked or unforeseen.” This entire scenario is termed as casus omissus. The traditional view in this regard is that such omissions or defects cannot be filled in by the courts.

 

CHANGING TIMES

 

However, with time and with increased judicial activism, the Courts have shifted their approach leaning in favour of interfering in a limited manner in the instances of casus omissus. The trend has gradually shifted to adoption of equitable construction where something is absent in the text of a statute, and it is presumed in such situations that the case or object that is absent in the text of the statute could be read into that statute by way of necessary implication.

 

The courts may also adopt to prefer an alternative construction that fits the intention of the statute but where something has been simply overlooked, the courts cannot legislate for such casus omissus. Such a situation presents great difficulties for the courts since if the courts start to fill the gaps in every casus omissus, then it may amount to usurpation of the law-making function of the legislature.

 

Therefore, in light of such practical difficulties, the earlier stringent view that under no circumstances, a court should interfere in casus omissus got modified and later on, the Courts adopted a view that: -

 

“A casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred.”

 

ROLE OF JUDGES

 

It has also been stated by various legal luminaries that though courts cannot make up for the deficiencies left by the legislature in a statute, yet it must make an endeavour to harmonize the conflicting provisions because “when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give ‘force and life’ to the intention of the Legislature. A judge must not alter the material of the which the Act is woven, but he can and should iron out the creases.”

 

MODERN DAY MEANING

 

All the above-stated words of wisdom must be understood with a caveat that a court should not so interpret a statute as to create a casus omissus when there is really none. The courts need to tread cautiously in this regard. Nevertheless, it could be safely stated that in modern day, casus omissus is understood as “a situation not provided for by a statute or a contract, and therefore governed by caselaw or new judge-made law.”

 

Thus, I hope that the nature, the meaning and the scope of casus omissus is clear by now.

 

List of Authorities Referred To:

 

1. Black’s Law Dictionary.

2. Rupert Cross, Statutory Interpretation.

3. Justice G.P. Singh, Principles of Statutory Interpretation.

4. Padmasundara Rao v. State of Tamil Nadu, AIR 2002 SC 1334