Validity Of A Law Where Compliance Is Impossible
Articles / By Kurian K Jose
Law generally requires absolute obedience from its subjects, but what if compliance with a provision of law is impossible? Such an issue arose in a recent Public Interest Litigation before the High Court of Kerala, viz. Shabeer Shajahan v. State of Kerala 2020 KHC 425 (“Shabeer Shajahan”). Relevant facts of the said case concerning the topic at hand are as follows – According to the petitioner in the case, the National Council for Teacher Education (“NCTE”) established under the National Council for Teacher Education Act, 1993 is the only authority to prescribe minimum qualification for a candidate to be employed as a teacher in the schools or recognised institutions. As per the Regulations issued by the NCTE, the minimum qualification prescribed for the post of Higher Secondary School Teacher is Post Graduate (or its equivalent) degree from a recognized University, and B.Ed from any NCTE recognized institution.
The qualifications for Higher Secondary School Teachers in Government and Aided Schools in the State of Kerala are prescribed by the Rules laid down by the Government of Kerala in this regard. The said rules permit candidates having no B.Ed degree to be appointed to the post of Higher Secondary School Teachers in certain subjects. Thus, according to the petitioner the said provisions in the Rules framed by the Government of Kerala are inconsistent with the Regulations framed by NCTE, because according to the said Regulations, B.Ed is a mandatory qualification required for the appointment of candidates to the post of Higher Secondary School Teachers. Therefore, among others, one of the reliefs sought in the case was to declare the said provisions of the Rules framed by the Government of Kerala as void.
According to respondent Government of Kerala, in case of Computer Application, Computer Science and Electronics subjects, B.Ed was not prescribed as a qualification in the Rules, for the appointment of candidates to the post of Higher Secondary School Teachers, because, no University in the country offered B.Ed Course in Computer Science, Computer Application and Electronics subjects. In the absence of availability of such a course, the Government has not prescribed B.Ed as a mandatory qualification for the said subjects, with abundant caution as the same would be unworkable.
It turned out that, no University in the country offered B.Ed Course in Computer Science, Computer Application and Electronics subjects. However, the Regulations framed by the NCTE prescribed B.Ed as a minimum qualification for the post of Higher Secondary School Teacher. Thus, in this particular case, the said provision of the law was impossible to comply with. To this point, the court held that, if only there is such a course offered by the Universities in the country, the chances of acquiring the said qualifications arise. In the absence of any University in the country, offering a B.Ed Degree course in Computer Application, Computer Science and Electronics, mere prescription of the qualifications in NCTE Regulations is a wasteful exercise. Thus, the provisions of the Rules framed by the Government of Kerala which did not prescribe B.Ed as a qualification for the appointment of teachers to those subjects, cannot be said to be arbitrary or contrary to NCTE Regulations.
The court in Shabeer Shajahan had impliedly held that, if the provision of a law is impossible to comply with, it would be a sufficient excuse for non-compliance. Although not explicitly mentioned in the judgment, the said principle flows from the principles of equity, particularly from the legal maxim Lex Non Cogit Ad Impossibilia (Broom’s Legal Maxims P. 162), i.e. The law does not compel a man to do that which he cannot possibly perform, which has been recognized and applied by the Supreme court in the case Raj Kumar Dey and Others v. Tarapada Dey and Others 1987 KHC 1096. Brief facts of the case are as follows – A few arbitrators who were petitioners in the case had submitted an arbitral award for registration before the Sub Registrar, well after the time limits prescribed for registration as per S.23 and S.25 of the Registration Act, 1908. The arbitral award was one that affected immovable properties, therefore it was a document of which registration was compulsory. The arbitrators could not present the arbitral award for registration within the prescribed time limits for the following reason – The arbitral award was filed in the Sub Court, Hoogly pursuant to the order of the said court in a judicial proceeding. Although the arbitrators had filed an application before the Sub Court, Hoogly for the return of the arbitral award for registration, the same was declined by the Sub Court, Hoogly vide an order in the said application. The High Court of Calcutta later found the said order to be illegal and had directed Sub Court, Hoogly to return the arbitral award for registration. Although the arbitral award was returned in compliance with the aforesaid order of the High Court of Calcutta, by the time, the time limit prescribed for its registration had already expired. Despite the expiry of the time limit, the arbitral award was registered by the Sub Registrar considering the fact that, the time limit expired as the arbitral award was held up in a court. However, the said registration was set aside by the High Court of Calcutta holding that the time limit for registering the arbitral award had expired. The aforesaid order of the High Court of Calcutta was challenged before the Supreme Court in the instant case.
The Supreme Court in the instant case, found that although the time limit for registering the arbitral award had expired, it was because the arbitral award was in the custody of a court, and was not returned despite an application to that effect. Further, the High Court of Calcutta later found the order of the Court declining the return of arbitral award to be illegal. Therefore, in the particular facts and circumstances of the case, as the compliance with the statutory time limits was impossible for no wrong of the petitioners, the Court recognized and applied the legal maxim “Lex Non Cogit Ad Impossibilia” (Broom’s Legal Maxims P. 162), i.e. The law does not compel a man to do that which he cannot possibly perform and restored the registration of the arbitral award. The following was also observed by the Court in the case- “The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.”
Apart from the aforesaid case the legal maxim Lex Non Cogit Ad Impossibilia was also applied by Supreme Court in Cochin State Power and Light Corporation Ltd. v. State of Kerala1965 KHC 717and various cases thereafter- though not very frequently.
Hence to conclude it could be safely perceived that, where compliance with a provision of law is impossible, it would be a sufficient excuse for non-compliance, as per the principles laid down by judicial precedents and the legal maxim Lex Non Cogit Ad Impossibilia. For further clarification regarding this proposition of law, one may also refer to the legal maxim impotentia excusat legem, i.e. law will generally excuse a default if a party is unable to perform a duty created by law without any default in him and where he has no remedy.
