Mahima Gherani, Student of Law, VIT Law School, Chennai
The origins of imports of common law into India have been seen from the early 1661 onwards. From the early charters, which established English Courts in India wanted the judges to act according to ‘justice, equity and good conscience’ in deciding cases when no source of law was identifiable1. The phrase “justice, equity, and good conscience” had its origins in Roman canonical laws it was understood by English jurists of the sixteenth century. In the form in which it was introduced into England at that time, it was “an appeal to sources of law other than English common and statute law, namely, “an appeal to fundamental laws, recognized universally.”
Justice is not merely right determination and adjudication of disputes and enforcement of Law, but is so comprehensive in its meaning and import that it takes within its ambit the whole of political, social, juristic and moral idealism. The word justice comes from its Latin root ‘Jus’ meaning ‘right’. From the Vedic period onward, the perennial attitude of Indian culture has been that justice and righteousness among men are microcosmic reflections of the natural order and harmony of the macrocosmic universe. The cosmos is instinct with an inherent structure and functional pattern in which men at their best willingly participate. Justice, then, in the Indian context, is a human expression of a wider universal principle of nature and if man was entirely true to nature; his actions would be spontaneously just2. Justice, in the sense of a distributive equity, is experienced by men in three major guises: as moral justice, social justice and legal justice. Each of these forms of justice is viewed as a particularization of the general principle of the universe seen as a total organism. Nature is guided by principles which become translated into ethical terms in the individual and social lives of men. Of course, human life itself is seen as part of this natural process, having a bearing on the functioning of the whole, but not by any means dominating it. These introductory statements can now be amplified through an examination of the concept and role of justice as it applies in the three areas of individual morality, society and the state, and the functions of law.
It has its literal meaning as ‘binding’ or fitting or tying together of things and qualities harmoniously in human life. The administration of justice started in the early days as a choice of peaceful mediation offered for the voluntary acceptance of parties. The concept of justice differs in every culture. An early theory of justice was set out by the Ancient Greek philosopher Plato in his work The Republic. Throughout history various theories have been established. Advocates of divine command theory argue that justice issues from God. Theorists like John Locke argued on the theory of natural law, utilitarian thinkers like John Stuart Mill argued that justice is what has its best consequence. John Rawls who gave the theory of distributive justice used a social contract agreement to show that justice is a form of fairness. According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. According to the egalitarian, justice can exist only within the parameters of equality. Jews, Muslims and Christians traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy, and that justice is ultimately derived from and held by God. According to the Bible, such institutions as the Mosaic Law were created by God to require the Israelites to live by and apply his standards of justice. This is how the concept of justice evolved over time with different views one influencing another.
In the ordinary sense, equity is synonyms with natural justice. Initially this system was inspired by the ideas of natural justice but in today’s world equity is no more or no less than the common law. Maine defined it as ‘any body of rules existing by the side of original civil law, founded on principals and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principals3. Equity was important in the development of English law because it resolved some of the defects of the common law, which might otherwise have led to a loss of public confidence in the legal system. But how did this concept actually evolve? Equity arises out of the processes of law applying, and is changed by those who are engaged in this task.
In the middle ages, the courts of common law failed to give redress in certain type of cases where it was most needed. During that era, the King was regarded as the “fountain of justice” and would provide extraordinary relief with the help of the Chancellor set up by the special courts i.e. Courts of Chancery, to deal with petitions by various disappointed litigants. With the passage of time the rules of the Courts of Chancery hardened into law and became a regular part of law of land.
The most important branch is the law of trusts, but remedies such as specific performance, Account of profits, Rescission, Declaratory relief, Rectification, Estoppels, Certain proprietary remedies, such as constructive trusts or tracing, Subrogation and injunction are also used. Equity came to prevail when there is a question between the rules of common law and the rules of equity, which was a topic of debate and was subject to huge controversy. Equity had come not to destroy the law, but to fulfill it.
Every jot and every title of the law was to be obeyed, but when all this had been done something might yet be needful, something that equity requires4. The most drastic remedy was restitution integrum by which a completed transaction at law could be erased and the parties allowed to begin afresh. The creative function of equity was most marked during the Roman and English period.
The Romans granted their emperors broad prerogatives in dispensing from the law. Whenever the emperor felt that the application of a statutory rule would lead to an inadequate result, he had the power to set aside the rule for this particular case. The same kind of power is exercised by the Pope under cannon law. In Anglo-American equity jurisprudence, the rigid attitude of equity did not prevail. A court in a proceeding governed by equity, may issue a conditional decree requiring the plaintiff to do justice to the defendant, as a prerequisite for obtaining the relief requested by him.
Equity has recognized that there may be varying shades of grey in the relative positions of the parties, that both of them may be partly right and partly wrong, and that therefore a compromise or mutual adjustment may be preferable to an either-or solution5. Equity did not intervene when, according to equitable principles, no injustice resulted in adopting the solution imposed by law. Where two or more parties have an interest in the same property but their respective interests have not been quantified, equity as a last resort may divide the interest equally.
Equity imputes an intention to fulfill an obligation for example; the principle here is based on the premise that if a party is under an obligation to perform an act and he performs an alternative but similar act, equity assumes that the second act was done with the intention of fulfilling the obligation. “Most of the equitable principles and rules have, in India, been embodied in the statute law and has been made applicable to the extent of the provisions made therein. The provisions of equity in Indian statute books might have their source in common law or in equity or in an adjustment between the two, is immaterial.
Statutory recognitions of the principles of equity are found in The Indian Contract Act, 1872, The Specific Relief Act, 1877, The Indian Trust act, 1882, The Transfer of Property Act, 1882 and The Indian Succession Act, 1925. Even after all this, yet there are so many rules of equity that are neither been followed or adopted in India.
This system went on until 1875, when as a result of the Judicature Act 1973 was passed which abolished the old courts of common law and the Court of Chancery. In their place a single Supreme Court of Judicature was established who had supreme power in all the matters of law and equity.
“The knowledge of our acts, states, or characters, as right or wrong, the faculty, power, or principal which decides on the lawfulness or unlawfulness of our actions and affections, and approves or condemns them; the moral faculty; the moral sense”.6The conscience originally involves our ability to discriminate between two options. The conscience then, assumed the role of judge, administering judgment through guilt and the specter of punishment.
English humanist lawyers in the 16th and 17th centuries interpreted conscience as a collection of universal principles given to man by god at creation to be applied by reason; this gradually reforming the medieval Roman Law-based system with forms of action, written pleadings, and use of juries and patterns of litigation. Along with law, which is the objective of morality, conscience helps a person determine whether one is doing the right thing or wrong. Greek and Roman philosophy also engaged understandings of conscience, but usually in the context of a guilty one – of feelings of regret for bad actions done.
This negative understanding of conscience typical of Greco-Roman philosophy became more positively construed in the New Testament with St. Paul and the fathers of the early Church. The education of what was conscience is has evolved from the teachings of the Church, the responsiveness of indwelling the Holy Spirit and charity. St. Paul constantly reiterates that he has a good conscience, and encourages others to act so that they will too. St. Augustine also recommends seeking a good conscience.
The role played by the martyrs of the early Church should also not be underestimated. These witnesses to conscience and conscientious objection to state religious power set a firm directionality in Christian teaching that conscience should never be violated, even unto death. The Reformation period was a trying time for conscience rights in Europe as political and religious groups vied for power.
More recently, the Church and its theologians have continued to promote conscience rights. God speaking to us, Moral teachings of the church and the scriptures, behaviour of our near and dear ones and our own behaviour are the primary sources of developing good conscience.
- Environmental Jurisprudence in India, By C. M. Abraham [↩]
- Available at http://buddhism.lib.ntu.edu.tw/FULLTEXT/JR-JOCP/jc26833.htm accessed 29th April, 2015 [↩]
- Maine page 34 [↩]
- Maitland Equity page 17 [↩]
- Handbook on the Principals on Equity Page 55-56, 387-393 [↩]
- Available at www.worldslastchance.com/christian-growth/a-good-conscience.html accessed on 29th April 2015 [↩]