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The maxim justice, equity and good conscience were introduced for the first time in Bengal in 1780. Sir Elijah Impey, the first chief justice of the Supreme Court of Calcutta laid down that in all cases for which no specific directions had been given, the mofussil and sadar adalats were to act according to the principal of Justice, Equity and Good Conscience’.
Theoretically with this provision, a rule of decision for all heads of litigation was provided -a theoretical legal basis for the courts to decide cases for which no law had been specifically prescribed. The judges were given a discretion to adopt any rule or custom which appeared to be reasonable to them in the circumstances of the case to be decided.
This maxim applied in judicial legislation led to the development of different laws and introduced many lprinciples of Englishaw in the mofussil. Gradually this maxim was introduced in Bombay, Madras and the other territories of India.
Privy Council:
Section 5 of the Central Provinces Laws Act, 1875 provided for the introduction of Hindu or Muslim laws in civil suits. Section 6 said that in cases not provided for in Section 5, the courts were to act according to the principle of Justice, Equity and Good Conscience.Similarly, in 1872, Punjab Laws Act and in 1876, the NWFP and Oudh Act introduced the same maxim.
According to the Privy Council the maxim ‘Justice, Equity and Good Conscience’ was adopted ‘as the ultimate test for all the provincial courts in India’ The maxim constituted the residuary source of law if in particular point of dispute before the courts, there was no parliamentary law, no regulation and if it fell outside the heads for which Hindu and Muslim laws were prescribed.
But there were problems in its application as from which sources were the 00th to draw the principle of ‘Justice, Equity and Good conscience’. The maxim did not have any persistent and definite connotation. It pointed to no specific body of law and did not give any articulate direction or guidelines to the judges to follow them in deciding disputes.
Simply put, it meant the discretion of the judges. The judges had the full freedom to decide cases coming before them to the best of their ability and capacity in such a way as appeared to them to do substantial justice between the parties concerned.
The maxim assigned the courts a responsibility to ascertain in each case what law to apply to the fact in consonance with reason and justice. This paved the way for lawmaking by judges from case to case. A judge could draw on anybody of principles which he thought to be based on justice and good conscience in the context of the fact situation of the dispute.
Principles of the Hindu and Muslim Law:
The inevitable result was confusion and uncertainty, as each judge interpreted according to their perception.In course of time certain guidelines developed to guide judicial discretion in this respect. For instance, in matters of Contract law, it was possible for the court to apply, as a matter of good conscience, ascertainable principles of the Hindu and Muslim law.
Even though Contract was not directly under the personal laws in the mofussil In the Kallup Nath Singh v. Kumlaput Jah, a lease entered into by an individual in the name of his minor son was held to be ineffectual as according to the Hindu Law, a contract entered by a minor was void and hence no claim could be found thereon either against the minor or his surety.
But it was not the entire Hindu and Muslim Law of Contract which was applied by the mofussil court.Customs prevailing in the country formed another source upon which the courts could draw for principles to decide cases within their discretion under the maxim of justice, equity and good conscience.
For example, the right of pasturage in the land of another, right to bury the dead in another’s land. In Manzur Hasan v. Mohamman Zan, the Privy Council ruled that in India there existed a right to conduct a religious procession through a public street.A new orientation was given to this maxim in the 19th century by two developments:
Theoretically with this provision, a rule of decision for all heads of litigation was provided -a theoretical legal basis for the courts to decide cases for which no law had been specifically prescribed. The judges were given a discretion to adopt any rule or custom which appeared to be reasonable to them in the circumstances of the case to be decided.
This maxim applied in judicial legislation led to the development of different laws and introduced many lprinciples of Englishaw in the mofussil. Gradually this maxim was introduced in Bombay, Madras and the other territories of India.
Privy Council:
Section 5 of the Central Provinces Laws Act, 1875 provided for the introduction of Hindu or Muslim laws in civil suits. Section 6 said that in cases not provided for in Section 5, the courts were to act according to the principle of Justice, Equity and Good Conscience.Similarly, in 1872, Punjab Laws Act and in 1876, the NWFP and Oudh Act introduced the same maxim.
According to the Privy Council the maxim ‘Justice, Equity and Good Conscience’ was adopted ‘as the ultimate test for all the provincial courts in India’ The maxim constituted the residuary source of law if in particular point of dispute before the courts, there was no parliamentary law, no regulation and if it fell outside the heads for which Hindu and Muslim laws were prescribed.
But there were problems in its application as from which sources were the 00th to draw the principle of ‘Justice, Equity and Good conscience’. The maxim did not have any persistent and definite connotation. It pointed to no specific body of law and did not give any articulate direction or guidelines to the judges to follow them in deciding disputes.
Simply put, it meant the discretion of the judges. The judges had the full freedom to decide cases coming before them to the best of their ability and capacity in such a way as appeared to them to do substantial justice between the parties concerned.
The maxim assigned the courts a responsibility to ascertain in each case what law to apply to the fact in consonance with reason and justice. This paved the way for lawmaking by judges from case to case. A judge could draw on anybody of principles which he thought to be based on justice and good conscience in the context of the fact situation of the dispute.
Principles of the Hindu and Muslim Law:
The inevitable result was confusion and uncertainty, as each judge interpreted according to their perception.In course of time certain guidelines developed to guide judicial discretion in this respect. For instance, in matters of Contract law, it was possible for the court to apply, as a matter of good conscience, ascertainable principles of the Hindu and Muslim law.
Even though Contract was not directly under the personal laws in the mofussil In the Kallup Nath Singh v. Kumlaput Jah, a lease entered into by an individual in the name of his minor son was held to be ineffectual as according to the Hindu Law, a contract entered by a minor was void and hence no claim could be found thereon either against the minor or his surety.
But it was not the entire Hindu and Muslim Law of Contract which was applied by the mofussil court.Customs prevailing in the country formed another source upon which the courts could draw for principles to decide cases within their discretion under the maxim of justice, equity and good conscience.
For example, the right of pasturage in the land of another, right to bury the dead in another’s land. In Manzur Hasan v. Mohamman Zan, the Privy Council ruled that in India there existed a right to conduct a religious procession through a public street.A new orientation was given to this maxim in the 19th century by two developments:
Active Role of the Privy Council Since 1833:
Advent of the High Courts in 1861-62 which consisted of the English judges trained in English Law. Merits of the principle:
Advent of the High Courts in 1861-62 which consisted of the English judges trained in English Law. Merits of the principle:
1.This principle made the role of court unusually creative and influential, but also difficult and complex.
2.The decisions of the Indian courts were a prolific source of incorporation of the principle of English Law into the Indian jurisprudence, e.g. the Law of Torts.
3.The merit of introducing English Law was the gradual reduction in the antiquated features of the Hindu and Muslim Laws; curtailed the broad discretion inherent in the principle and bridged the dichotomy of law between the Presidency Towns and the mofussils
2.The decisions of the Indian courts were a prolific source of incorporation of the principle of English Law into the Indian jurisprudence, e.g. the Law of Torts.
3.The merit of introducing English Law was the gradual reduction in the antiquated features of the Hindu and Muslim Laws; curtailed the broad discretion inherent in the principle and bridged the dichotomy of law between the Presidency Towns and the mofussils
Drawbacks of the Principle:
1.There was selective and discriminating adoption of rules.
2.There was dependence on development of case law-hazardous, uncertain, incoherent and expensive.
At times, there was disagreement between the Privy Council and the High Court.
In the beginning wrong perception were there in the minds of the English judges and administrators that only two broad categories existed-Hindus and Muslims, Sikhs. Parsees, Jews, etc. were omitted.
Written by - Max Croson
Edited by - Nidhi Verma
1.There was selective and discriminating adoption of rules.
2.There was dependence on development of case law-hazardous, uncertain, incoherent and expensive.
At times, there was disagreement between the Privy Council and the High Court.
In the beginning wrong perception were there in the minds of the English judges and administrators that only two broad categories existed-Hindus and Muslims, Sikhs. Parsees, Jews, etc. were omitted.
Written by - Max Croson
Edited by - Nidhi Verma
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