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
Beautifully explained.
ReplyDeleteVery well explained.
ReplyDelete