CASUS OMISSUS

Casus Omissus, literally means case omitted. It is basically a situation not provided for by a statute or
contract and therefore governed by caselaw or new-judge made law.[1] When a statute or an
instrument of writing undertakes to foresee and to provide for certain contingencies, and through
mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus.[2] It
is a canon of construction, requiring the court to draw up principles of statutory construction, which
are then going to be followed by subsequent judges in their judicial decisions.[3] Casus Omissus can
be said to be a gap in a statute.[4] The classic rule is that courts will not fill the gaps in statutes – their
function is jus dicere non facere that is to declare or decide the law.[5]

It is an application of the principle that a matter which should have been, but has not been provided
for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. But
there is no presumption that a casus omissus exists and language permitting the court should avoid
creating a casus omissus where there is none.[6]

It is true that under the guise of judicial interpretation, the court cannot supply Casus omissus, but the
courts must always try to give effect to the intension of the legislature. The courts should be slow to
adopt a construction which tends to make any part of the statute meaningless or ineffective and an
attempt must always be made to reconcile the relevant provisions so as to advance the remedy
intended by the statue. It is one of the fundamental rules of interpretation that if the words of a statute
are in themselves precise and unambiguous no more is necessary then to expound those in their
natural and ordinary sense, the words themselves in such a case best declaring the intension of the
legislature.

If the legislature willfully omits to incorporate something of an analogous law in subsequent statute or
even if there is Casus Omissus in a statute the language of which is otherwise plain and unambiguous,
the court is not competent to supply the omission by engrafting on it or introducing in it under the
guise of interpretation by analogy or implication, something which it thinks to be general principle of
justice and equity. To do so, would be entrenching upon the preserves of the legislature. The primary
function of a court of law being jus dicere and not jus dare.[7] The will of the legislature as a supreme
law of the land and demands perfect obedience. Judicial power is never exercised for the purpose of
giving effect to the will of the judges always for the purpose of giving effect to the will of the
legislature, or in other words, to the will of the law . Therefore, where the legislature clearly declares
its intent in the scheme of a language of the statute it is the duty of the court to give full effect to the
same without scanning its wisdom or policy and without engrafting, adding or implying anything
which is not congenial to or consistent with such express intent of the lawgiver.[8]
The law is what the judges interpret the statue to be, not what the experts in their monopoly of
wisdom assert it to be. The duty of Court is to construe the law as it stands, and not to make a new,
though it may be better law. It is quite true that in interpreting a statute, to meet the obvious intension
of the legislature, a construction may be put upon it which modifies the meaning of the words and
even the structure of the sentences, but that is allowed only where the court is coerced to do so to
avoid some serous injustice or to prevent a statute from being reduced to a nullity, or for any other
similar reason. No court is competent to proceed upon assumption that the legislature has made a
mistake, because there is a strong presumption that the legislature does not make mistakes.[9]

[1] Garner, Bryan, Black’s Law Dictionary, West Publishing Co. United States of America, 9th
Edition, 2009, p. 247. 
[2] Bouvier, John, A Law Dictionary adapted to the Constitution and Laws of he Unites States of
America and of the Several States of the American Union, 6th Edition (Revised), 1856.
[3] Construction, Interpretation and Ambiguity, Arani Chakrabarty, Available at:
<http://www.somethingaboutthelaw.com/2010/05/17/construction-interpretation-and-ambiguity/>
[4] Principles Relating to the Interpretation of Statutes and Constitutions, Available at:
<http://www.vanuatu.usp.ac.fj/courses/LA304_Legal_Drafting/LA304_Unit%203.html>
[5] Garner, Bryan, Black’s Law Dictionary, West Publishing Co. United States of America, 9th
Edition, 2009, p. 938.
[6] Singh, G.P., Principles of Statutory Interpretation, Lexis Nexis Butterworths Wadhwa Nagpur,
Haryana. 12th Edition, 2011, p. 68.
[7] Garner, Bryan, Black’s Law Dictionary, West Publishing Co. United States of America, 9th
Edition, 2009, p. 938.
[8] Hansraj Gupta v. Dehra Dun Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, p.
65; Karnataka State Financial Corporation v. N. Narsihmahaiah, AIR 2008 SC 1797.
[9] Singh, G.P., Principles of Statutory Interpretation, Lexis Nexis Butterworths Wadhwa Nagpur,
Haryana. 12th Edition, 2011, p. 68.

Amit Kumar Modi, 5th Year, BBA LLB(Hons.), School of Law, KIIT University