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This article is written by Bhaskar Joshi of 9th Semester of BA.LLB (H) of Amity Law School, Amity University.


In the realm of law, the concept of legal fiction holds a fascinating and significant place. It is a tool employed by courts and legislatures to bridge gaps, address practical challenges, and achieve just outcomes in legal proceedings. It involves assuming certain facts or circumstances to be true, even if they may not correspond with reality but serve a specific purpose within the legal framework. It allows the law to adapt, interpret statutes, and ensure fairness in complex and evolving scenarios. By exploring the concept of legal fiction, we gain insight into how the law navigates practical limitations, fills legislative gaps, and strives to maintain coherence in the face of dynamic social and legal contexts. In Indian law, legal fictions have been utilized in diverse contexts, such as determining the age of consent, recognizing certain relationships, or interpreting statutory provisions. These fictions serve the purpose of aligning the law with practical realities and individual circumstances, ensuring fairness and justice. It plays a crucial role in interpretation, application, and the development of legal principles. This article aims to delve into these concepts of legal fiction.

Keywords:  Legal fiction, Fuller, application, separate corporate entity, precedents, Taxation Law.

Development of Legal Fiction

The concept of legal fiction has a rich and diverse history spanning ancient civilizations to modern legal systems. The concept of legal fiction has a long and complex history that dates back to ancient times. It has evolved and been refined over centuries, influenced by various legal systems and philosophical traditions. The use of legal fictions can be traced back to ancient civilizations such as Mesopotamia, Egypt, Greece, and Rome, where they were employed to address legal gaps and achieve practical outcomes. In ancient Rome, for example, legal fictions were utilized to overcome rigid formalities and achieve fairness in legal proceedings.[1] The Romans recognized the need for flexibility in their legal system and developed fictions such as “fictio legis” (fiction of law) to bridge gaps in their laws. This allowed the courts to create legal relationships and allocate rights and responsibilities in situations where there was no explicit provision in the law.[2]

Later various scholars helped in developing the concept of legal fiction in the modern era. One such was the influential work of Lon L. Fuller from the 1930s. He was a prominent legal scholar who made significant contributions to the study of legal fictions in the legal system. He emphasized the role of legal fictions in achieving justice and maintaining coherence of the law. Fuller argued that legal fictions are necessary devices for addressing complex social and legal issues, enabling the law to recognize and accommodate realities not adequately addressed by existing legal rules or concepts. However, Fuller emphasized the need for judicious and cautious use of legal fictions, avoiding excessive reliance on them, and advocating for transparency and clarity in their application. He also highlighted the potential risks associated with legal fictions, such as undermining predictability and certainty, creating uncertainty, and eroded public trust in the legal system. Fuller emphasized the importance of striking a balance between the use of legal fictions and the need for clarity and consistency in legal principles.[3] But what is this concept and how does it help in achieving justice?

Understanding legal fiction

Legal fiction refers to a legal presumption or assumption that may not align with the actual facts of a case. It is employed to overcome practical or conceptual obstacles, fill legislative gaps, and ensure a just and equitable outcome. Legal fictions are used to adapt the law to evolving societal dynamics and resolve complex legal issues. Legal fiction is a concept employed in the field of law where certain assumptions or presumptions are made, even if they do not align with the actual facts, to achieve a just and equitable outcome. To illustrate the concept of legal fiction, let’s consider a hypothetical scenario involving the determination of age in a legal context.

Suppose there is a legal provision that states individuals must be at least 18 years old to enter into a certain contract (section 10 of Indian Contract Act ‘1857). Now, imagine a situation where a person is only 17 years old but possesses the maturity, understanding, and responsibility necessary to enter into the contract. In this scenario, the legal fiction of “deemed age” may be applied. The court, recognizing the exceptional circumstances and the individual’s maturity, can employ the legal fiction of deeming the person to be 18 years old for the purpose of entering into the contract. Although the person’s actual age is 17, the court assumes, for the specific legal context, that they are 18 years old. This allows the individual to be legally eligible to enter into the contract, ensuring fairness and recognizing their capability. The legal fiction of deeming the person to be of age in this scenario serves the purpose of aligning the law with practical realities and individual circumstances. It acknowledges that age alone may not always be the sole determining factor in assessing an individual’s capability or capacity to engage in certain legal activities.

However, it is important not to confuse legal fiction with legal presumptions. Legal fictions and presumptions are related concepts used in the legal field, but they differ in their nature and purpose. Legal fictions are deliberate assumptions or presumptions created by the law that may not align with the actual facts of a case. They are utilized to overcome practical or conceptual obstacles, fill gaps in the law, or achieve a just outcome. Legal fictions involve treating something as true or real, even if it may not be so in reality. On the other hand, presumptions are assumptions made by the courts based on the available evidence until proven otherwise. They arise from the evidence presented in a case and are used to determine the existence of certain facts. Presumptions are based on probabilities and common human experiences. They serve to establish a starting point in legal proceedings and shift the burden of proof from one party to another. While legal fictions are created by the courts or legislatures and applied as a matter of law, presumptions are based on evidence and applied based on the rules of evidence and the burden of proof. Therefore, legal fictions and presumptions differ in their nature, purpose, and basis of application within the legal system.

Why legal fiction?

Legal fictions play a crucial role in addressing complex legal issues, promoting fairness, and ensuring the law remains relevant and just in an ever-changing society. The objectives of legal fiction are multifaceted and serve several important purposes within the legal system. One of the primary objectives of legal fiction is to overcome practical obstacles that arise in legal proceedings. There may be situations where strict adherence to the literal interpretation of laws leads to impractical or unjust outcomes. Legal fictions provide a means to address these challenges by creating assumptions or presumptions that allow the law to adapt and achieve fair results. They bridge gaps and enable the courts to consider the practical realities of a case. Legal fictions are employed when legislative provisions are silent, ambiguous, or inadequate to address a specific issue. They fill gaps in the law by creating legal presumptions or assumptions that help in resolving the matter at hand. These fictions enable the courts to interpret and apply the law in a manner that promotes fairness and justice, even in the absence of explicit statutory provisions. Another objective of legal fiction is to facilitate the adaptation of the law to changing societal dynamics, technological advancements, and evolving values. Society is dynamic, and the law needs to keep pace with these changes. Legal fictions play a crucial role in this regard by creating legal presumptions or assumptions that align with the current realities and needs of society. They provide flexibility and allow the law to evolve and adapt over time. Other than that, Legal fictions provide flexibility in the interpretation and application of laws. They allow the courts to go beyond the strict literal interpretation of statutes and consider the underlying principles and purposes of the law. This flexibility ensures that the law can be applied justly and effectively, taking into account the unique circumstances of individual cases. Legal fictions enable the courts to look beyond rigid technicalities and focus on achieving justice. As it can be seen one of the fundamental objectives of legal fiction is to ensure fairness and equity in legal proceedings. Legal fictions enable the courts to consider practical realities, individual circumstances, and the overall interests of justice when applying the law. They allow for the consideration of the spirit and purpose of the law, rather than being bound solely by the literal wording. By creating assumptions or presumptions, legal fictions help to achieve just outcomes and ensure that the law serves its purpose of upholding justice and fairness.[4]

In this way, Legal fictions allow the law to adapt to changing societal dynamics, address practical challenges, and ensure equitable outcomes. Understanding the concept of legal fiction is crucial for comprehending the nuanced and evolving nature of the law in its quest for justice and fairness.

Applications of Legal Fiction

In Indian law, the concept of legal fiction is widely employed to overcome legal hurdles, interpret statutes, and ensure justice in various domains. Legal fictions in Indian law involve presumptions or assumptions that may not align with the actual facts of a case but are utilized to achieve equitable outcomes. Here are some examples of legal fictions in Indian law:

  1. Age of Consent: In criminal law, the age of consent for sexual activity is an important factor in determining the legality of relationships. However, determining the exact age of an individual can be challenging, especially in cases where accurate records are unavailable. To overcome this practical challenge, legal fiction is employed. The Indian Penal Code (IPC) specifies a presumption of consent at the age of 18, but it allows for a legal fiction that assumes consent for a girl above the age of 15, even if she is underage. This legal fiction allows for the prosecution of cases involving sexual activity with a minor.
  2. Presumption of Innocence: The presumption of innocence is a well-known legal fiction in criminal law. It is based on the principle that an accused person is presumed innocent until proven guilty beyond a reasonable doubt. This principle ensures fairness and justice by presuming the innocence of an accused person until proven guilty beyond a reasonable doubt. This principle protects the rights of individuals facing criminal charges and ensures a fair and just trial process. The presumption of innocence creates an assumption that the accused is innocent and places the burden of proof on the prosecution to establish their guilt. The accused is entitled to the benefit of the doubt and should not be convicted unless the prosecution has met the high standard of proof required in criminal cases. The presumption of innocence also balances the power dynamics between the state and the accused, ensuring that individuals are not unduly disadvantaged in the legal process. It places the burden of proof on the prosecution, requiring them to present evidence that proves the accused’s guilt beyond a reasonable doubt. The presumption of innocence encourages a fair and objective evaluation of evidence presented in court, requiring the trier of fact to approach cases with an open mind and carefully weigh the evidence before making a decision. However, the presumption of innocence is not an absolute guarantee of innocence. It serves as a starting point for proceedings and places the burden of proof on the prosecution. In practice, the presumption of innocence may be subject to limitations and challenges, such as past criminal records or media coverage influencing the perception of innocence or guilt.
  3. Corporate Entity: Indian company law recognizes the legal fiction of the corporate entity. A company is considered a separate legal entity distinct from its shareholders or members. This concept of a separate legal entity is a crucial legal fiction in modern corporate law, allowing corporations to be treated as distinct legal persons with their own rights, obligations, and liabilities. This legal fiction allows the corporation to enter into contracts, own property, sue and be sued, and engage in various legal transactions. The corporation is treated as an independent entity, capable of conducting business and incurring legal obligations separate from its shareholders or members. The concept encourages economic activity, promotes commercial certainty, facilitates business transactions, and allows for the perpetual existence of the corporation. However, it is important to recognize that a separate legal entity is an artificial entity created by law and depends on recognition and regulation by the legal system. The separate legal entity is not absolute, and courts may “pierce the corporate veil” and disregard the separate legal entity, holding shareholders or members personally liable for the corporation’s obligations.
  4. Ignorance of law is no excuse: The Famous maxim “Ignorantia juris non excusat” which literally means “Ignorance of law is no excuse” is another example of a legal fiction. The concept of “ignorance of law is not an excuse” is a fundamental principle in legal systems worldwide, including Indian law. It states that individuals cannot claim innocence or lack of knowledge of the law as a defense for their actions. The law presumes everyone is aware of the laws that apply to them, and ignorance of those laws does not absolve individuals from legal liability or consequences. This principle promotes personal responsibility and accountability, holding individuals accountable for their actions regardless of their knowledge of the law. It also ensures fairness and equality before the law, as treating ignorance as a valid defense could create a loophole that could be exploited by individuals seeking to evade legal consequences. However, there are exceptions and limitations to this principle, such as the recognition of a defense called “mistake of fact” in certain circumstances. Critics argue that modern legal systems have become increasingly complex, making it challenging for individuals to be fully aware of all applicable laws and regulations. However, the principle continues to be upheld as a legal fiction in many jurisdictions, including India, as it promotes legal awareness, personal responsibility, and equality before the law.[5]
  5. Adoption Law: Section 12 of the Hindu Adoption and Maintenance Act, 1956, incorporates a legal fiction that allows for the recognition of a valid adoption even in the absence of formalities prescribed by the law. This legal fiction aims to ensure fairness and justice in adoption matters, particularly in situations where strict requirements cannot be fulfilled. The legal fiction allows the court to presume the existence of a valid adoption despite irregularities or non-compliance with formalities. It recognizes that legal requirements for adoption, such as consent, formalities, and registration, may not always be fulfilled due to cultural practices, lack of awareness, or inadvertent omissions. The legal fiction ensures that the welfare and best interests of the child are given paramount consideration in adoption matters. To invoke the legal fiction under Section 12, the person claiming to be an adopted child must demonstrate that they have been treated as such by their adoptive parents, taking into account all relevant factors, including the welfare of the child, the intention of the adoptive parents, the customs and practices of the community, and any other circumstances that may shed light on the validity and reality of the adoption. This legal fiction strikes a balance between the need for legal formalities in adoption and the need to protect the rights and welfare of individuals raised and treated as adopted children.
  6. Deeming prospectus: The Companies Act 2013 introduces the concept of deemed prospectuses, which are legal fictions that treat certain documents or communications as if they were actual prospectuses. Section 32 of the Act defines a prospectus as any document issued by a company or proposed company inviting the public to subscribe for its securities or deposit money. The Act sets out the requirements and procedures for issuing a prospectus, including the need for registration with the Registrar of Companies. Section 26 introduces the concept of deemed prospectuses, which treat certain communications as if they were actual prospectuses. Examples of deemed prospectuses include public offer statements, allocation letters, and notices of intention to wind up. The purpose of deeming these documents or communications as prospectuses is to ensure that the legal requirements and obligations associated with a prospectus are applicable, safeguarding the interests of potential investors. The Companies Act 2013 expands the scope of regulatory oversight and promotes transparency in the capital market by employing the legal fiction of a deemed prospectus.[6]

These examples demonstrate the diverse applications of legal fiction in Indian law. Legal fictions are employed to overcome practical challenges, address societal realities, fill legislative gaps, and achieve just outcomes.

Legal fiction in Indian courts

There have been several precedents that have established and applied the concept of legal fiction in various contexts. These precedents highlight the adaptability of the law. Here are a few notable Indian precedents of legal fiction:

  1. Cambay Electric Supply … vs The Commissioner of Income Tax (1978 AIR 1099): In this case, the Supreme Court of India highlights the application of legal fiction in Indian law, particularly in the interpretation of the term “royalty” under the Income Tax Act, 1961. The court interpreted the term “royalty” to include technical know-how, which was not explicitly mentioned in the definition. This allowed for a more comprehensive and fair interpretation of the law, ensuring that the tax implications of payments involving technical know-how were appropriately addressed. The use of legal fiction in this case demonstrates how legal fictions are employed to interpret statutory provisions in a manner that aligns with the underlying purpose and intent of the law. The judgment has significantly impacted the interpretation of the term “royalty” under the Income Tax Act, providing clarity and guidance to taxpayers and tax authorities in determining the tax implications of payments involving technical know-how. The use of legal fictions in Indian law is crucial in addressing legislative gaps and ensuring the effective application of the law in rapidly evolving fields.[7]
  2. Shantilal Rawji vs M.C. Nair, Iv Income-Tax Officer (1958 34 ITR 439 Bom): This case is another example which highlights the application of legal fiction in Indian tax law. The Bombay High Court ruled that income earned from the sale of shares, regardless of their status as stock-in-trade, could be considered as “business income” or “capital gains” for taxation purposes. The Indian Income Tax Act contained a legal fiction in Section 2(4A) that declared income derived from the transfer of shares held as capital assets as “capital gains.” This legal fiction aimed to ensure uniformity and consistency in the taxation of income from the sale of shares, preventing taxpayers from manipulating their income by claiming shares held as stock-in-trade were actually capital assets. The court emphasized the importance of legal fictions in maintaining the integrity of the tax system and promoting fairness in the taxation of different types of income.[8]

As it can be seen from the above-mentioned examples, Over the years, Indian courts have encountered numerous cases where legal fictions have played a crucial role especially in interpreting and applying tax laws. As the tax landscape has evolved over the years, legal fictions have played a significant role in development of the taxation law.


Legal fiction is a powerful tool utilized in various areas of Indian law, including taxation, to address complex scenarios, bridge gaps in legislation, and ensure fairness and justice. Whether treating income from the sale of shares as capital gains, or considering unexplained cash credits as taxable income, the concept of legal fiction allows the law to depart from strict technicalities and focus on the substance of transactions, enabling courts to achieve equitable outcomes and prevent abuse or manipulation of the legal system. The Indian legal system recognizes the importance of legal fictions in interpreting and applying laws in a manner that aligns with the underlying principles of justice and fairness.

While legal fictions provide flexibility and practical solutions, it is essential to approach their application with caution. Courts must carefully consider the legislative intent, the factual context, and the broader implications of invoking a legal fiction. Balancing the interests of justice, equity, and legal certainty is crucial to ensure that legal fictions serve their intended purpose without leading to unjust or unintended consequences.

In conclusion, legal fiction continues to play a significant role in Indian law, serving as a valuable tool to address complex legal scenarios, fill legislative gaps, and achieve equitable outcomes. By embracing and applying legal fictions judiciously, the Indian legal system can maintain its integrity, promote fairness, and adapt to the evolving challenges of a dynamic society.

[1] legal fiction, Britannica.com, available at https://www.britannica.com/topic/legal-fiction, Last seen on 10 June’2023

[2]Legal fiction, lawtool.net, available at https://www.lawtool.net/post/legal-fiction, Last seen on 10 June’2023

[3] Fuller on Legal Fictions: A Benthamic Perspective, lawexplorer.com, available at https://lawexplores.com/fuller-on-legal-fictions-a-benthamic-perspective/, Last seen on 14 June’2023

[4] The Reasons for Some Legal Fictions, Michigan Law Review, Jun., 1910, Vol. 8, No. 8 (Jun., 1910), pp. 623-636, available at https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.jstor.org/stable/pdf/1274904.pdf&ved=2ahUKEwj6oNXi_8z_AhUKumMGHWV3BIcQFnoECAYQAQ&usg=AOvVaw0Ybkm9xR9ps64gRoYSH58g, Last seen on 14 June’ 2023

[5] Legal Fictions: Do they fit the Juristic Reality?, INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND INNOVATION [ISSN 2581-9453] Volume 2/ Issue 3,2020 available at https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.ijlsi.com/wp-content/uploads/Legal-Fictions-Do-they-fit-the-juristic-reality.pdf&ved=2ahUKEwiUtOHzh83_AhU1mFYBHTUCBvsQFnoECEoQAQ&usg=AOvVaw2HfLmYq2yTPZsy8wMTupYg, Last seen on 16 June’2023

[6] Legal fiction, lawordo.com, available at https://www.lawordo.com/legal-fiction/, Last seen on 16 June’2023

[7] Cambay Electric Supply … vs The Commissioner of Income Tax, … on 11 April, 1978, Indiankanoon.org, available at https://indiankanoon.org/doc/81055/, last seen on 18 June’2022

[8] Shantilal Rawji vs M.C. Nair, Iv Income-Tax Officer, … on 1 April,1958, Indiankanoon.org, available at https://indiankanoon.org/doc/1435886/, last seen on 18 June’2023

1 Comment

Ritika · June 28, 2023 at 1:59 pm

Well written sir, insightful

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