The application of ‘justice, equity and good conscience’ to India commenced with colonial rule in Bombay. As Bombay assumed prominence as a commercial centre, there arose a need for a system of mercantile law to avoid the inadequacies of the common law in its application in India as well as in the English Admiralty courts. Company judges appointed in 1669 were hence required to adjudicate in accordance to good conscience.[1]

Eventually, the Royal Charters of

(i) 9 August, 1683 set up the mercantile and admiralty courts at Bombay; and

(ii) 30 December, 1687 set up the Municipality and Mayor’s Court at Madras. The Court of Judicature at Bombay was required to adjudicate ‘according to the rules of equity and good conscience, and according to the laws and customs of merchants.’ The Mayor’s Court at Madras was to be guided according to equity and good conscience.

On 5 July, 1781 Governor General Warren Hastings passed the Regulations for the Administration of Justice in the Court of Dewanee Adaulat of the provinces of Bengal, Bihar and Orissa. Regulation 60 of the said regulations stated:

“That in all cases, within the jurisdiction of the Mofussil Dewannee Adalat, for which no specific Directions are hereby given, and respective Judges thereof do act according to Justice, Equity and Good Conscience.”

A similar provision for Judges of the Sadr court was made in Regulation 93. Though these provisions were procedural in nature, they marked further inroads of the concept into the Indian administrative and legal framework. Regulation 9 of Regulation VII of 1832 reads:

“Where parties are of different persuasions, the laws of the religions shall not deprive a party of property to which, but for the operation of such laws, he would have been entitled. In all such cases, the decisions shall be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that this provisions shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by these principles.”

Accompanying this was the space carved out for the application of the personal law of the parties. For example, in 1781 itself, the Parliament passed the Act of 1781, Section 17 of which stipulated that the Supreme Court should have the power to entertain all suits against the inhabitants of Calcutta:

“Provided that inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos; and where only one of the parties shall be a Mahomedan or Gentoo by the law and usages of the defendant.”[2]

The scheme for administration of justice drawn up by Warren Hastings was characterized by two main features: one was that of decentralisation by the introduction of subordinate courts, both civil and criminal. The other was the reservation to both Hindus and Mohammedans of their own personal laws and usages in the domain of their domestic relations.

Until the 1850s, judges turned to Hindu personal law and Muslim personal law to decided matters of faith and religion. Where the exact provisions were not certain, judges required the reassurance that their decisions were in consonance with the needs of justice in every case. For this, they turned to ‘justice, equity and good conscience’.

The conflation between the concept and English law

Alongside the introduction of ‘justice, equity and good conscience’ in the Indian legal system, another parallel development gradually took place – despite the broad underpinnings of the term which allowed reference by analogy to varied systems of law, over time, there arose a presumption that the term ‘justice, equity and good conscience’ was synonymous with English law.

The expansion in the powers of the East India Company was accompanied with a vesting in the Company of the power of administration of justice. MC Setalvad writes:

“As the Company’s territories became gradually enlarged by settlement and conquest the Privy Council, as the highest court of appeal from the decisions of the Indian courts, became a growing influence in the application of the basic principles of English jurisprudence as the rules of decision all over the country.

It was natural, perhaps inevitable, that the eminent English judges, who presided over this tribunal should attempt to solve the problems that came before them wherever Indian regulations or statutes contained no provisions applicable to them by drawing upon the learning on which they had been brought up and the rules and maxims to which they had been accustomed for a lifetime.

This explains why from the earliest times the decisions of this tribunal in appeals from India have resulted in a steady and continuous granting of the principles of common law and equity into the body of Indian jurisprudence.”[3]

With an increase in the activities of the East India Company, judges and barristers trained in English law moulded the Indian judicial system. This led to, an increased reference to English law both in arguments before courts as well as in the judgments of the Courts in British India. The distinguished American scholar Marc Galanter has documented the conflation of the term with English law:

“In their search for authoritative bodies of law, the British made collections and translations of ancient texts and recent commentaries. However, Indian law proved strangely elusive…It was soon recognized that sastra was only a part of the law and that in many matters Indians were regulated by less formal bodies of customary law. But even customary law was not sufficient…

The need to fill the felt gaps was ultimately to lead to statutory codification on the basis of English law. But in the meantime, courts, empowered to decide cases in accordance with ‘justice, equity and good conscience’, filled the interstices of sastra and custom with ‘unamalgamated masses of foreign law’. Although there was some attempt to draw the most suitable rule from other sources, in most cases the [English] judges were inclined to assume that English law was most suitable.”[4]

The applicable law was stated to be the parties’ personal law and the colonial government initially relied on the testimonies of pandits and maulvis to translate religious texts which would be used to adjudicate. Eventually, this system was abolished and increased reliance was placed on English translations of the relevant religious texts. Ultimately, the colonial government sought to fill any remaining lacunae with English law.

Another impetus was the setting up of the Privy Council in 1833 as the final court of appeal from India. These together resulted in the conflation between ‘justice, equity and good conscience’ and English law. However, in truth, the term ‘justice, equity and good conscience’ authorises a broad-ranging reference to analogous systems of law to source legal principles that can be applied to the specific case before the court and ensure a just outcome.

The correct legal position was noted by Chief Justice Barnes Peacock in Degunbaree Dabee v Eshan Chunder Sein[5] where it was held:

“Now, having to administer equity, justice and good conscience, where are we to look for the principles which are to guide us? We must go to other countries where equity and justice are administered upon principles which have been the growth of ages, and see how the courts act under similar circumstances; and if we find that the rules which they have laid down are in accordance with the true principles of equity, we cannot do wrong in following them.”

A true understanding of the evolution of the concept found expression in judicial decisions in India. In Gatha Ram Mistree v Moohita Kochin Atteah Domoonee,[6] the plaintiff filed a suit for the restitution of conjugal rights. The Deputy Commissioner held that though a ceremony took place, it did not constitute a formal marriage. No reasons were given and hence, the matter was remanded. In addition to this direction, Justice W Markby made an additional observation with respect to the enforceability of a decree of restitution of conjugal relations:

“But surely, when we look to the law of England for a guide, it is where that law is in harmony with the general principles of equity and jurisprudence that we should adopt it, not where it is exceptional. That the English law, on the subject of enforcing conjugal rights, is exception, I have no manner of doubt…It appears to me, therefore, that if we were to hold that a court could enforce continuous performance of conjugal duties by unlimited fine and imprisonment, we should place the law of this country in opposition to the law of the whole civilized world, except the ecclesiastic law of England.”

The court clarified that even where courts look to English law to furnish a guide, the first step was to check whether it conformed to the principles of general equity and justice. The court recognised that while the exaction of conjugal duties or pain of unlimited fines and imprisonment might conform to the position in England, the court was not bound to adopt it where the governing principles of the civilised legal regimes indicated that it was against justice, equity and good conscience to do so.

In Radha Kishen v Raj Kaur[7], a man who bore children from a woman outside his caste was treated to be an outcaste. Upon his death, the woman held his property, the possession of which she handed to their children upon her death. The brothers of the man sued for the recovery of his property contending that the woman and their illegitimate children had no right to the property.

The court, without any reference to English law, held that the property was self-acquired and that justice, equity and good conscience required that the suit be dismissed. Chief Justice Edgar and Justice Knox writing together for the Allahabad High Court held:

“We cannot find amongst the authorities and texts cited to us any sure principle to guide us in this case. Under these circumstances we must act on the principles of equity and good conscience, and decline to oust from the possession of the property acquired by Khuman his sons and their mother and the widow of the deceased son for the benefit of the vendee of brothers …”

No explicit reference was made to English law, but to general principles that would provide content to the concept of “justice, equity and good conscience.”

In Rajah Kishendatt Ram v Rajah Mumtaz Ali Khan[8], the Privy Council dealt with the rights of redemption of a mortgagor whose property had received accretions through certain mergers by the mortgagee in possession. Justice JW Colville spoke thus:

“27…If the principle invoked depended upon any technical rule of English law, it would of course be inapplicable to a case determinable, like this, on the broad principles of equity and good conscience. It is only applicable because it is agreeable to general equity and good conscience.

And, again, if it possesses that character, the limits of its applicability are not to be taken as rigidly defined by the course of English decisions, although those decisions are undoubtedly valuable, in so far as they recognize the general equity of the principle, and show how it has been applied by the Courts of this country.”

The position that the term ‘justice, equity and good conscience’ indicates English law is thus unsupported. The formula ‘was a device to escape from English law, not to call it in’.[9] It is true that its application in India heralded the diffusion of English Law into the Indian legal system by virtue of globalisation, acculturation and common epistemic communities. The formula authorised reference by analogy to systems of law across national frontiers.

Though the Roman origins of the term stand for a broader application of the term even where there is an express provision that governs the case, the development of the term as it evolved in India indicates that it is only where the positive law and customary law was silent or led to perverse or absurd outcomes, that the principles of justice, equity and good conscience were applied.

Justice, Equity and Good Conscience today

With the development of statutory law and judicial precedent, including the progressive codification of customs in the Hindu Code and in the Shariat Act 1937, the need to place reliance on justice, equity and good conscience gradually reduced. There is (at least in theory) a reduced scope for the application of justice, equity and good conscience when doctrinal positions established under a statute cover factual situations or where the principles underlying the system of personal law in question can be definitively ascertained.

But even then, it would do disservice to judicial craft to adopt a theory which excludes the application of justice, equity and good conscience to areas of law governed by statute. For the law develops interstitially, as judges work themselves in tandem with statute law to arrive at just outcomes. Where the rights of the parties are not governed by a particular personal law, or where the personal law is silent or incapable of being ascertained by a court, where a code has a lacuna, or where the source of law fails or requires to be supplemented, justice, equity and good conscience may properly be referred to.

Post-independence, Indian Courts have utilised the concept less frequently but adopted a broader view of the term ‘justice, equity and good conscience’.

Two cases of Supreme Court are instructive. In Namdeo Lokman Lodhi v Narmadabai[10], it was argued that the amendment made in 1929 to Section 111(g) of the Transfer of Property Act requiring a written notice by the lessor for the determination of a lease embodies a principle of justice, equity and good conscience.

Justice Mehr Chand Mahajan (as he then was), writing for a two judge Bench of Supreme Court held:

“7. The main point for consideration thus is whether the particular provision introduced in sub-section (g) of Section 111 of the Transfer of Property Act in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well-established principles of equity.

The High Court held, and we think rightly, that this provision in sub-section (g) of Section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. 18. …In England it is not necessary in case of non-payment of rent for a landlord to give notice before a forfeiture results. It cannot, therefore, be said that what has been enacted in sub-section (g) of Section 111 is a matter which even today in English law is considered as a matter of justice, equity and good conscience.”

The Court held that the requirement of a notice being issued by the lessor upon the non-payment of dues was one of procedure, and absent a statutory mandate, the same could not be introduced under the guise of ‘justice, equity and good conscience.’ It appeared at a first glance that the Bench conflated justice, equity and good conscience with the position in English law.

This is not the correct position. The view expressed in this case was reinterpreted by Supreme Court in Murarilal v Dev Karan[11] which arose out of a redemption suit filed by the respondent against the appellant. The respondent had contended that though the period to repay the loan taken by him against a mortgage of certain properties had elapsed, the right to redeem continued to vest in him.

This was resisted by the appellant who contended that upon the expiry of the repayment period stipulated, the appellant became the absolute owner of the mortgaged property. Though Section 60 of the Transfer of Property Act embodied the equity principle of redemption, it was not applicable in Alwar where the dispute arose. A Constitution Bench of the Court held that the mortgage deed contained a provision which amounted to a clog on the equity of redemption. Chief Justice PB Gajendragadkar, speaking for the Bench held:

“5. Therefore, the main question which arises in the present appeal is: Does the equitable doctrine ensuing the mortgagors equity of redemption in spite of a clog created on such equity by stipulation in the mortgage deed apply to the present case? This question arises in this form, because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years’ stipulated period expired. …

15. In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been consistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which unreasonably restrain or restrict the mortgagor’s right to redeem…

In fact, in Namdeo Lokman Lodhi v. Narmadabai [(1953) SCR 1009] this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions. These observations, in substance, represent the same traditional judicial approach in dealing with oppressive unjust and unreasonable restrictions imposed by the mortgagees on needy mortgagors when mortgage documents are executed. …

16. … Even so, we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country, required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them. …. In the absence of any material on the record on the point, we are reluctant to accept Mr Sarjoo Prasad’s argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute. …

20. Thus it is clear that the equitable principle of justice, equity and good conscience has been consistently applied by civil courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor‘s equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagor’s right to redeem, subject, of course, to the general law of limitation prescribed in that behalf.

We are, therefore, satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption.”

The Court also cited instances of decisions of the High Courts which had held that Section 60 of the Transfer of Property Act embodied the just and equitable principle. In this view, the Bench took a broader view of the principles embodied by justice, equity and good conscience.

The Court held that the view of this Court in Namdeo is consistent with and similar to the analogous situation of unreasonable and oppressive contractual terms and in that sense, justice, equity and good conscience was analogous to English law only where English law itself was in conformity with the principles supported by justice, equity and good conscience.

The common underlying thread is that justice, good conscience and equity plays a supplementary role in enabling courts to mould the relief to suit the circumstances that present themselves before courts with the principle purpose of ensuring a just outcome. Where the existing statutory framework is inadequate for courts to adjudicate upon the dispute before them, or no settled judicial doctrine or custom can be availed of, courts may legitimately take recourse to the principles of justice, equity and good conscience to effectively and fairly dispose of the case.

A court cannot abdicate its responsibility to decide a dispute over legal rights merely because the facts of a case do not readily submit themselves to the application of the letter of the existing law. Courts in India have long availed of the principles of justice, good conscience and equity to supplement the incompleteness or inapplicability of the letter of the law with the ground realities of legal disputes to do justice between the parties.

Equity, as an essential component of justice, formed the final step in the just adjudication of disputes. After taking recourse to legal principles from varied legal systems, scholarly written work on the subject, and the experience of the Bar and Bench, if no decisive or just outcome could be reached, a judge may apply the principles of equity between the parties to ensure that justice is done. This has often found form in the power of the court to craft reliefs that are both legally sustainable and just.

[1] B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1, No. 2 (1936), at page 344

[2] See also Article 27 of the Plan of 1772 which reads: ―That in all suits regarding inheritance, marriage and

caste and other religious usages and institutions, the laws of the Koran with respect to Mahomedans and those of

the Shaster with respect to Gentoos shall be invariably adhered to. On all such occasions the Molavies shall

respectively attend to expound the law and they shall sign the report and assist in passing the decree.‖ See also

Section 15 of Regulation IV of the Cornwalliis Code of 1793.

[3] MC Setalvad, The Common Law in India (1960) at pages 31-32.

[4] Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.

[5] (1868) 9 W.R. 230, 232.

[6] (1875) 23 W.R. 179

[7] (1891) 13 All 573

[8] (1878-79) 6 IA 145

[9] Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in Developing Countries (JND

Anderson ed.)

[10] 1953 SCR 1009

[11] (1964) 8 SCR 239