JKJ 2013 (2) J-21

Justice, Equity And Good Conscience: Origin And Present Application

By:- Burhan Majid (LL.M Final year student at Faculty of Law, University of Kashmir)

In India, the doctrine of ‘justice, equity and good conscience’ dates back to the late eighteenth century when introduced, for the first time, in the presidencies of Bengal, Bombay and Madras. The doctrine was later on introduced in the other territories of India also, albeit gradually.

The general idea behind this doctrine was that if on a particular point of dispute before the Court there was no express law, then the Court was to decide the matter according to ‘justice, equity and good conscience.’ The doctrine owes its existence to the reason that in the 18th and 19th century’s law could not be found on each and every matter, as the history itself reveals. So there was a huge vacuum in the legal system and the Courts were to act according to ‘justice, equity and good conscience.’

It can hardly be said that the doctrine is now obsolete in the wake of a complete law code governing India. Nor can it be said in the wake of a full-fledged judiciary India has.

But before we tread any further it is important to mention that after the early days of its advent, a new orientation began to be given to the maxim ‘justice, equity and good conscience.’ That is, the Courts started interpreting the maxim to mean English law so far as applicable to the Indian situation. This was visible rather substantiated by the two developments in the 19th century. The first was the establishment of High Courts in 1862 which consisted of the Englishmen as judges, obviously trained in English law. They had a natural bias in favour of the English law and thus when a dispute came before them to which no local custom was applicable, they invariably began to base their decisions on the English law. The second factor responsible for this new orientation (rather trend) was the activisation of Privy Council as the ultimate Court of appeal from India from 1833 onwards. The Privy Council also consisted of the English judges and as a corollary of it they also applied the same English concepts of ‘justice, equity and good conscience.’ It is in this way the process of reception of English law in India has stimulated.

However in applying the English law, the touchstone which always remained there was whether it was applicable to the Indian situation. We can also say that this doctrine, in a way, acted as a means to incorporate the English law.

The trend of applying the English law did not stop here. Instead it continued unabated during the 19th and 20th centuries so far as relevant to the Indian situation. Thus the rules of English law continued to find their way into the body of Indian law indirectly through the maxim of ‘justice, equity and good conscience.’ Even after the independence of India, we find reference is still made to English case law by the Indian Courts. Sometimes to interpret the Indian statutes and at other times as a residuary source of law whenever need has been felt to decide a case according to justice, equity and good conscience.

The broader concept of Natural justice which has now become the hallmark of Indian law like every other country is the direct manifestation of the doctrine of ‘justice, equity and good conscience. For the doctrine does not now only mean the English law rather it is the literal meaning of the words used in the maxim which is important. That is, JUSTICE, EQUITY AND GOOD CONSCIENCE. The frequent use of terms such as ‘good faith’, ‘public policy’, ‘fairness’ et cetra in statutes and by the judges in their judgments is based on principles of equity. The approach of the Judiciary in Maneka Gandhi ‘s case epitomizes the application of the Doctrine. The Supreme Court in this case held while interpreting the word ‘law’ used in Article 21 of the Constitution of India that law must be just, fair and reasonable.

In India we do not have, nor did we ever had separate courts (as in England) administering ‘equity’. But the equitable principles of law, i.e., justice, equity and good conscience, are the guiding force behind most of the statutes in our country and the decisions of the courts.

However the importance of the concept has somewhat diminished than what it was in the 19th century. The diminishing effect owes its reason to the fact that the bulk of Indian law is now codified. That most of the law which came prievously under the doctrine of ‘justice, equity and good conscience’ has been codified by the India. Yet the basis remains the same. For instance in 1963 the "Specific Relief Act" was passed by the Parliament of India following the recommendation of the Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under;

• Recovery of possession of immovable property (ss. 5 - 8)
• Specific performance of contracts (ss. 9 - 25)
• Rectification of Instruments (s. 26)
• Recession of Contracts (ss. 27 - 30)
• Cancellation of Instruments (ss. 31 - 33)
• Declaratory Decrees (ss. 34 - 35)
• Injunctions (ss.36 - 42)

With this codification, the nature of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to the extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of the Code of Civil Procedure, 1908, which applies to all civil courts in India. There are no such inherent powers with the criminal courts in India except with the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are also vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which confers wide powers on the Supreme Court to pass orders "as is necessary for doing complete justice in any cause of matter pending before it".

However, in recent times, there is a judicial tendency to strike a new line of approach rather than the traditional one viz, the incorporation of English law. There are a handful of cases say for example, State of Bihar v. Abdul Maji, AIR 1954 SC 245 where we find the Supreme Court has dissented from the English approach. In Rattan Lal v. Vardesh Chander, AIR 1976 SC 588, a dispute regarding the determination of a lease had to be decided according to justice, equity and good conscience. Krishna Iyer, J., speaking on behalf of the Supreme Court pleaded that in Independent India, “we should develop our own brand of justice and equity rather than follow blindly the English law.” He further went on to say that India should shake off its neo-colonial jurisprudence”.

While on the one hand the Supreme Court craves to develop its own brand of justice and equity, the habit of relying upon the English law or on any other legal system by it is yet to be given up. We don’t need to peruse the case laws any more for the immediate example is the recent case of mercy killing (or Aruna Shuanbagh’s case) in which the Supreme Court relied on the English law among other legal systems of the world. The Supreme Court relied and quoted THE AIREDALE CASE (Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.) in which the House of Lords held that if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient's best interest, the said act cannot be regarded as a crime.

Thus we can say there is no let down on the part of the Indian judiciary in relying heavily on the English case law.

Given the aforesaid, however, the scheme of the doctrine of ‘justice, equity and good conscience’ is far from satisfactory. This owes to the reason that the maxim ‘justice, equity and good conscience’ does not have any precise and definite connotation. It points to no specific body of law. In simple terms, it means nothing else but the discretion of the judge. The maxim (Doctrine) has also opened the wide doors of judicial legislation from case to case. Furthermore it is quite absurd to apply a law which is developed thousands of miles away under a different climate and for a different civilization. As this doctrine has always proved to be. History is clear that quite a few principles of English law have been refused to be applied by the Courts in India. Even at times the Courts in India have applied those English laws which were a product of the peculiar conditions in England.