Ubi Jus Ibi Remedium- LEGAL MAXIM with explanation

Ubi Jus Ibi Remedium:- Legal Maxim 

Meaning

Human rights, that belongs to every person, are the basic rights and freedoms. They apply regardless of your place of origin, your beliefs or your way of life. They based on shared values like dignity, fairness, equality, respect, and independence.

As these are rights to maintain the freedom of life. They need to be protected against their breach. And here the legal maxim, i.e. “Ubi Jus Ibi Remedium”, comes in a play. It is a Latin maxim, it means that “Wherever there is a right, there is a remedy.” We can simply put that remedies are the life of rights. [1]

Slow death of the latin phrases “let the buyer beware” – caveat emptor

The main two ingredients of the doctrine are ‘jus’ and ‘remedium’. Where ‘jus’ means legal authority to do or to demand something from and ‘remedium’ means right of action. This right to a remedy, includes more than the plain meaning of term ‘remedy’ in English law, as it includes a right of action.

The principle says that wherever there is breach of anyone’s right, the law gives him/her the remedy to protect it or to recover the damages for any loss.

The principle behind the Doctrine

The Courts have, from time to time, explained the broad meaning of the Maxim. Here we are going to study some of these cases, for our better understanding of the principle behind this maxim.

In a landmark case,  Ashby v. White, Holt C.J. observed that there should be no wrong without remedy. Wherever the common law gives right, there is always a remedy for it’s enforcement. It was held that, “ When the law clothes a man with a right he must have means to vindicate and maintain it and remedy if he is injured in the exercise and enjoyment of it, and it is a vain thing to imagine a right without a remedy are reciprocal”. [2]

Justice Kernar, explained this doctrine as an elementary maxim of the equity of jurisprudence. As it provides for, there is no wrong without the remedy. The principle contemplated in the maxim is that, victim will have equitable remedy under law whenever his/her right is infringed. [3]

With the advent of a Welfare State, it was realized that enactments creating liabilities in respect of payment of taxes, obligations after vesting of estates and conferring rights on a class of citizens should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievance could be entertained on behalf of the persons aggrieved. [4]

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What rights are protected under the said doctrine

Every right must have a remedy is the dogma of the English law. There can be sorrow without tears but not a right without a remedy. [5]. Rights are may be of economic, social, cultural, civil and political nature. Let’s understand the applicability of this doctrine to some of the established rights through the way of illustrations.

Right to Vote – ‘A’ despite being a registered voter has been barred from casting her vote, by the Returning officer. Here the person intended by ‘A’ to vote has been elected. But ‘A’ still has a right to get compensation as her right to vote has been overstepped by the Returning officer. [6]

Political Right – ‘A’ is an MLA of the State of Jammu and Kashmir, has been illegally detained by Police. Here ‘A’s Right to attend the Legislative Assembly has been breached. ‘A’ is entitled to bring a suit before the Court. [7]

Legal Rights – ‘A’ has sufficient funds in his bank account, despite this, the banker refuses to honor his cheque. ‘A’ has every right to sue the Bank for recovery of damages. The Bank is liable to pay damages to ‘A’ because his legal right has been violated. [8]

As seen from the above examples, we can say that every right that has its enforceability by the law can be protected by the use of this Maxim.

Limitations to use of the Doctrine

As put forward by Margaret Fuller, “Nature provides exceptions to every rule.” We have to understand, through various case laws that there are certain limitations on use of this doctrine of ubi jus ibi remedium.

Matter of Right – It should be a matter of right and not of any moral or any other right which cannot be enforced by the law. Justice Rohinton Fali Nariman, while distinguishing the right of suit from the right of appeal, observed that “ The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” An appeal is a specific creation of statute and cannot be claimed as a matter of right. [9]

When the law specifically bars the remedy – The Benami Transactions (Prohibition Act), 1988 had put a complete bar to the respondent’s suit against the appellants in respect of the suit of the house. The Supreme Court held that, ‘where the remedy is barred, the right is rendered unenforceable.’ [10]

Breach of marriage vows or any personal promises – The promise made by the husband to his wife is not enforceable in the court of law. Because it was not made with the intention of creating a legal binding. [11]

We can clearly take away the meaning inferred by the doctrine, when we slightly modify it to give a better perspective by observing, “Where there is no legal remedy, there is no legal wrong” [12]

Conclusion

Human rights are the rise of the democratization of the decision-making process by the people themselves.  Article 8 of the Universal Declaration of Human Rights gives “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the Fundamental Rights granted to her by the Constitution or by any law.”

Hence to ensure the continuing enjoyment of these rights by the people or to make this enjoyment obstacle-free the right to sue in a civil court for enforcing the remedy in case of it’s breach is the fundamental thing. It is this availability of a right to sue that turns the field of law into law of liberty.

References

[1] Campbell v. Holt (1884) 115 US 620, 631.

[2], [6]  Ashby v. White 1 SM LC 253.

[3] Leo Feist v. Young

[4] South Delhi Municipal Corporation v. M/S Today Homes and Infrastructure Pvt. Ltd. Etc. AIRONLINE 2019 SC 874.

[5] Chowdhary v. The Government of Andhra Pradesh and others, AIR 1980 AP 154.

[7] Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494.

[8] Maretti v. Williams, (1930) 1 b & As 415

[9] Bgs Sgs Soma Jv v. Nhpc Ltd 2019 SCC Online SC 1585.

[10] Mithilesh Kunari and another v. Prem Behari Khare, 1989 AIR 1247, 1989 SCR (1)  621.

[11] Balfour v. Balfour,  [1919] 2 KB 571.

[12] Bradlaugh v. Gossett, (1884)