Ubi Jus Ibi Remedium: Evolution and Contemporary Significance in Indian Constitutional Jurisprudence

Ubi Jus Ibi Remedium: Evolution and Contemporary Significance in Indian Constitutional Jurisprudence

Introduction

Latin maxims have long served as concise repositories of legal reasoning. Among them, ubi jus ibi remedium—“where there is a right, there is a remedy”—occupies a cardinal position in common-law systems. Its converse, ubi remedium ibi jus, underscores that the availability of an enforceable remedy itself implies the recognition of a legal right. Embedded in medieval canon law and refined through English jurisprudence, the maxim now stands constitutionalised in India. This article critically analyses its trajectory, doctrinal scope, and contemporary limits in Indian public law, integrating leading authorities such as Rudul Sah, Nilabati Behera, D.K. Basu, and Anita Kushwaha.

Historical and Comparative Foundations

Prior to Independence, colonial courts imported English writs—habeas corpus, mandamus, certiorari—embedding the remedial focus of common law into the sub-continent. Dicey famously viewed the maxim as more than a tautology, highlighting English constitutionalism’s emphasis on enforceable remedies over abstract declarations.[1] The Constituent Assembly adopted this remedial philosophy, entrenching justiciability of rights through Articles 32 and 226 of the Constitution.

Constitutional Entrenchment

Article 32: The Heart and Soul

Dr B. R. Ambedkar labelled Article 32 “the heart and soul” of the Constitution because it translates ubi jus ibi remedium into a constitutional imperative. The Supreme Court has reiterated that declaratory relief is inadequate absent tangible enforcement. In Rudul Sah v. State of Bihar monetary compensation was awarded, the Court holding that mere release from wrongful detention would render Article 32 an “incomplete” remedy.[3]

Article 226: Federal Diffusion of Remedies

Article 226 empowers High Courts to issue writs “for any other purpose” beyond fundamental-rights enforcement, extending the maxim into the wider realm of public wrongs. This breadth was demonstrated in Chairman, Railway Board v. Chandrima Das, where compensation for a rape victim— a Bangladeshi national—was sustained under public law.[4]

Complementary Constitutional Powers

Article 142 authorises the Supreme Court to pass orders “for complete justice”, while Article 136 confers plenary appellate discretion. Collectively, these provisions create a remedial architecture consonant with ubi jus ibi remedium, permitting judicial innovation where statutory lacunae exist, as in Vishaka v. State of Rajasthan where workplace-harassment guidelines filled a legislative void.[5]

Public-Law Compensation: From Declaratory to Restitutive Justice

The maxim’s evolution from procedural slogan to substantive right is most visible in compensation jurisprudence:

  • Rudul Sah introduced compensation under Article 32 for illegal detention, rejecting sovereign immunity.[3]
  • Nilabati Behera v. State of Orissa classified custodial death as a strict-liability wrong, distinguishing public-law damages from private tort actions.[6]
  • D.K. Basu v. State of West Bengal provided preventive and compensatory safeguards against custodial violence, issuing arrest guidelines grounded in Articles 21 and 22.[7]
  • Chandrima Das extended vicarious State liability to heinous crimes committed by employees, even where the victim was a non-citizen, internationalising the maxim.[4]

Access to Justice as a Component of Article 21

In Anita Kushwaha v. Pushap Sudan the Court distilled a fundamental right to access to justice from Article 21, holding that the absence of statutory transfer provisions could not defeat substantive justice.[8] The decision exemplifies ubi remedium ibi jus: the Court fashioned the remedy (transfer of proceedings) and affirmed the underlying right, demonstrating the dynamic interplay between right and remedy in constitutional adjudication.

Alternative Remedy and Procedural Flexibility

Courts regularly weigh the maxim against the doctrine that writ jurisdiction should yield to efficacious alternative remedies. In Shiv Shanker Dal Mills v. State of Haryana Krishna Iyer J. observed that technical barriers cannot defeat restitution where public bodies unjustly retain money.[9] High-Court rulings such as T. Jayarani[10] and Dhannalal v. Kalawatibai[11] reaffirm that constitutional remedies remain available when issues of equity or fundamental rights arise, even if statutory forums exist.

Doctrinal Extensions and Contemporary Applications

Guideline Jurisprudence

Legislative inertia has prompted judicial guideline-making—from arrest procedures in D.K. Basu to environmental mandates in M.C. Mehta v. Kamal Nath. Such jurisprudence underscores that an enforceable remedy is indispensable to the meaningful existence of a right.[12]

Reverse Application: Ubi Remedium Ibi Jus

The Court’s remedial creativity suggests a jurisprudential shift where the creation of an effective remedy can crystallise a corresponding right. Continuing mandamus, court-appointed monitoring committees, and structural injunctions illustrate this phenomenon, expanding judicial capacity to secure compliance.

Limitations and Critique

  • Statutory Bars and Limitation: Special statutes impose limitation periods or ouster clauses; courts sometimes relax these in the interests of justice but doctrinal clarity is needed to avoid unpredictability.
  • Separation of Powers: Excessive judicial law-making may trench on legislative prerogatives, raising legitimacy concerns.
  • Enforcement Deficit: Though compensation is awarded, delays in actual disbursement can dilute remedial efficacy; structured enforcement mechanisms remain necessary.

Conclusion

From a common-law aphorism to a constitutional cornerstone, ubi jus ibi remedium undergirds India’s remedial architecture. Through landmark decisions the judiciary has transformed the maxim into a dynamic vehicle for vindicating fundamental and statutory rights. Its vitality, however, hinges on balancing remedial innovation with institutional restraint and ensuring that declared remedies translate into tangible relief.

Footnotes

  1. A.V. Dicey, cited in Shiv Shanker Dal Mills v. State of Haryana, (1980) 2 SCC 437.
  2. Dr B. R. Ambedkar, Constituent Assembly Debates, vol. VII, 953 (1949).
  3. Rudul Sah v. State of Bihar, (1983) 4 SCC 141.
  4. Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465.
  5. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
  6. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
  7. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
  8. Anita Kushwaha v. Pushap Sudan, 2016 SCC OnLine SC 772.
  9. Shiv Shanker Dal Mills v. State of Haryana, (1980) 2 SCC 437.
  10. T. Jayarani v. Assistant Registrar of Co-operative Societies, 2016 SCC OnLine Ker —.
  11. Dhannalal v. Kalawatibai, (2002) 6 SCC 16.
  12. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.