By Nikhil Goel
“We have to part company with the precedents of the British-Indian period tying our non-statutory area of law to vintage English Law christening it “justice, equity and good conscience”. After all, conscience is the finer texture of norms woven from the ethos and lifestyle of a community and since British and Indian ways of life vary so much that the validity of an Anglo-philic bias in Bharat’s justice, equity and good conscience is questionable today,” said Justice V.R. Krishna Iyer in a Supreme Court judgement.
Let’s consider its implications.
The phrase “justice, equity and good conscience” or rather doctrine thereof, is a manifestation of the equity jurisdiction of the Courts, particularly the Courts in Common law Countries, where the Courts go beyond the realm of express legal provisions to ensure that justice in real sense is delivered. It is widely seen that, an adjunct prayer or relief in almost all sorts of petitions/appeals seeking a direction or order from a Court “in light of justice, equity and good conscience” is not only essentially taught to the students in law schools, but is employed invariably by the lawyers in actual Court practice, more prominently in constitutional courts of the country.
Origin of the doctrine
In M. Siddiq vs. Suresh Das (supra), the Supreme Court pointed out the doctrine having its genesis, not in English law, but in Romano-Canonical learnings common to the European continent. However, strictly speaking, the concept has its origin in ancient Greece and saw its further developments in Rome.
It has been stated that “While it is said that all roads of Western experience lead to Rome, equity’s road begins in ancient Greece with the legal theory of Aristotle.” According to Aristotle, a universal law is set to give rise to defects, and it is then that equity as a form of corrective justice comes into play. Although, Rome embraced Aristotle’s formulation of equity, the Roman understanding of equity experienced further development and equity came to be associated with the tradition of natural law (ius naturale). Subsequently, in England, the experimental basis of equity began by the end of the era of Norman Conquest. By the mid-14th century, it was acknowledged that the rigidity of the common law system and due to influence of stare decisis, the common law had become hardened and fails to deliver effective justice. Gradually, with reformation, those who felt they had been failed by the common law system could still petition the King with their grievances. Subsequently, these cases were delegated to the King’s council, and eventually to one individual – the Lord Chancellor. Because of this, the Lord Chancellor came to be known as the ‘King’s conscience’, and began to preside over his own court, the Court of Chancery.
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Statutory origin
As far as the expression “equity and good conscience” is concerned, it was first used in 1606 in the Statute which established in England the Courts of Requests. The Commissioners of the Courts of Request were required to make such orders “as they shall find to stand with Equity and Good Conscience”
In Colliery Employees’ Federation v Northern Colliery Proprietors’ Association, Cohen J. said-
“…the words ‘equity and good conscience’ leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man…”.
Adoption and significance of the doctrine in India – A powerful and multifaceted tool achieve the goals of justice:
A discussion on the introduction and adoption of the doctrine of the justice, equity and good conscience in Indian context could be appreciated better if bifurcated as (i) introduction of the doctrine by the British Rule in India and its application by the Courts; (ii) interpretation of these principles as part of equity jurisdiction of constitutional Courts in India.
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- Principles of justice “Justice, equity and good conscience” during British rule in India
The Charter of 1683 granted by Charles II provided for the establishment of Courts at such places as the East India Company might direct for maritime causes of all kinds, and each Court was to be held by a learned judge in civil law assisted by two persons chosen by the company. Such Courts were expressly required to decide cases according to the rules of “equity and good conscience” and the laws and customs of merchants. However, this was confined to the Company’s own people. Another aspect pertaining the present discussion, which has at times been missed in historical texts is the revival and inauguration of a Court of Judicature on 25th March,1718 by Governor Charls Boone in Bombay, which marked a new period in the Judicial history of Bombay. This Court was established by the order of the Governor and Council which was later on approved by the Company authorities. The court of Judicature of 1718 consisted of ten Judges in all which included judges from different Indian communities apart from English judges. A remarkable feature of the Court was that this Court exercised jurisdiction over all civil and criminal cases according to law, equity and good conscience. In 1781, Lord Impey’s Regulations in Bengal set out the ground for the concept of justice, equity and conscience in India, by providing that in the absence of any specific directions, the judges would have to act according to “justice, equity and good conscience”. Subsequently there were hosts of such enactments/Regulations where power to act according to “justice, equity and good conscience” was given to the Courts/Tribunals in the absence of any specific direction or legal provision.
- Justice, equity and good conscience under the Indian constitutional scheme
A common conception among the academic students that such prayer is sought only to cover any relief or ground not expressly sought for or raised, however is not a correct one. The concept of “justice, equity and good conscience” is rather immensely diverse, multi-faceted and possesses potential to go beyond the provisions of the enacted laws. The power and jurisdiction of the Supreme Court of India under Article 142 of the Indian Constitution, by its phraseology as also by Supreme Court’s interpretation of the scope of this Article, has led the members of legal fraternity to understand the provision as having the widest amplitude to give effect to the said doctrine. In the Constitutional bench of the Supreme Court in M. Siddiq vs. Suresh Das (Ram Janmabhoomi Temple case), the Supreme Court interpreted Article 142 to be a direct source for application of the doctrine.
The Constitution of India does not expressly provide application of the principle – “justice, equity and good conscience” by the Courts in exercise their adjudicatory powers and functions. However, the language of at least four provisions concerning jurisdiction and powers of the Constitutional Courts in the country, either by its language or amplitude of powers or by expansion of jurisdiction by judicial interpretation, may very well be called embodiment of this principle. These are Articles 142, 32 and 136 (dealing with powers and jurisdiction of the Supreme Court) and Article 226 (which is the writ jurisdiction of the High Court). Of course, Article 142 of the Constitution by its expressly widest amplitude has come to be accepted as a true and complete manifestation of the principles of justice, equity and good conscience, and categorically so in Ram Mandir (5-Judge) bench judgment.
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However, again, it would not be a correct position to say that Article 142 is the only source for the Apex Court of our Country to apply the doctrine, and even the Supreme Court in the above case has not so stated, the case being confined to the contours of Article 142. Though in a limited scope, even the constitutional provisions under Article 32 as well as Article 136 of the Constitution independently give scope for the Supreme Court and Article 226 for the High Court to apply the said doctrine and within such limits also, the doctrine at times can be used a powerful tool to achieve the notions of justice, in real sense. While tracing the origin of the doctrine and its adoption, expansion and varied application in Courts in India, this Article discusses that the doctrine is not a mere formal one, but is a potent substantive power of the constitutional Courts in India; and in the context of the Supreme Court, the unbridled source of power to do justice in a real sense, guided solely by its self-restraint.
Equity principles in the jurisdiction of the High Courts
The High Courts in India precede the establishment of the present Supreme Court i.e. since their framework commenced with the Indian High Courts Act 1861. The High Courts in India were exercising the powers of King’s court and court of equity. However, after the enforcement of Indian Constitution, a Supreme Court having been created as the highest Court in unitary judicial system of the country, it has been given the widest and unbridled discretionary powers, only guided by self-imposed restrictions. However, merely because such powers are not conferred on the High Courts does not undermine their equity jurisdiction, though in a more restricted sense when compared to the trinity of Article 32, 136 and 142 of the Constitution. Article 226 of the Constitution provides for the writ jurisdiction of the High Court which can be invoked in case of any infringement of a legal right of an individual, and in that sense is much wider than the scope of Article 32 of the Constitution. Article 227 similarly provides for general superintendence of the High Court over all the subordinate Courts within its jurisdiction, making it a court of wider jurisdiction than the Supreme Court. In State of MP vs. Visan Kumar Shivcharan Lal, it has been held that Article 226 is fundamentally a repository and reservoir of “justice, equity and good conscience”. The Supreme Court in Ramesh Chandra Sankla vs. Vikram Cement, has held as that even the power of superintendence under article 227 of the Constitution can be exercised ex debito justitiae i.e. to meet the ends of justice and that while exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity.
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Conclusion
While the concept represents unchanging eternal universal value, its application has to be tailored to everchanging myriad situations crying of justice. Like purposive interpretation devised to remedy unforeseen situation not clearly envisaged by the draftsman of a statute, equity justice and good conscience fill the gap of law as may appear in abstract and need for justice of a situation. As human mind can never be replaced by a computer, no enacted law can provide for justice for all situations. Yes, social milieu in a given society may depend on its moral and social conscience, represented by persistent values of old social order, aspired values of evolving society and felt need for justice of a situation as per current thought stemming from a fact situation. Thus, the English concepts particularly those derived from enacted law to meet need of a situation of that country cannot represent universal principle of equity justice and good conscience which certainly needs to be guarded in its application to Indian contexts. Why noble thoughts from anywhere can enlighten everyone, principles applied to another fact situation may not be of any relevance. Mechanical application is dangerous.
The author is an Advocate practising in the Supreme Court and the Delhi High Court. Currently, the author is also the Special Public Prosecutor for the CBI and Additional Advocate General for the states of Karnataka and Haryana.