COURSE NAME :B.

A(HONS)-LLB
SESSION: 2023-24
SUBJECT NAME: legal History
SUBJECT CODE:BALC1010
STUDENT NAME: Kiran Diwakar,
Enrollment no.: 2351110014(kiran)
ACKNOWLEDGEMENT

I would like to express my gratitude to Dr. Tarun Pratap Singh (professor)

Institute of Legal Studies and Research(ILSR) for their guidance, academic
encouragement and friendly critique. Their attitude and care have helped me
to complete this research project on time.
I would like to thank Dr. Somesh Dhamija (Dean) Institute of Legal Studies
and Research (ILSR) and Dr. Alok Verma (Associate Dean) Institute of Legal
Studies and Research (ILSR) for their advice and cooperation as they helped
me to access information from relevant university departments.
I would like to thank the complete library staff from the library of Institute of
Legal Studies and Research (ILSR) for the tuning equipment and their skills in
running the system.
Finally, I would like to express my heartfelt gratitude to my family and friends
for their support and care throughout my research work.

Dr. Somesh Dean Dr. Alok Verma

Dean Associate Dean
(ILSR) (ILSR)

DR.Tarun Pratap Singh KiranDiwakar

(ILSR) B.A(HONS)-LLB
 CERTIFICATE

GLA UNIVERSITY
DELHI-MATHURA road, NH-19,
CHAUMUHAN

This is to certify that Kiran Diwakar student of B.A(Hons)-LLB

has contributed in successful completing of this project entitled
“PRINCIPLE OF JUSTICE, EQUITY AND GOOD
CONSCIENCE in satisfactory manner as a partial fulfilment for
the course of B.A(Hons)-LLB discipline LEGAL HISTORY for the
session2023-28 of the GLA University, Delhi -Mathura Road, NH-19,
Chaumuhan

Dr.Somesh Dhamija Dr. Alok Verma

Dean Associate Dean
(ILSR) (ILSR)

Dr.Tarun Pratap singh Kiran Diwakar

Assistant professor B.A.(Hons)-LLB

(ILSR) (ILSR)
TABLE OF CONTENT

 INTRODUCTION 4

 HISTORY OF THE PRINCIPLE 6

 PRIVY COUNCIL 6

 CHALLENGES AND GUIDELINES FOR INTERPRETION 7

 EQUITY, JUSTICE AND GOOD CONSCIENCE IN ACTION 7

 SOURCE AND BENEFIT OF THIS PRINCIPLE 8

 CHALLENGES AND THE MOVE TOWARDS CODIFICATION 8

 JUSTICE,EQUITY AND GOOD CONSCIENCE IN INDIAN CONSITUTION 9

 CONCLUSION 10
INTRODUCTION

The concept of Justice, Equity and Good conscience first came into being with Impey's . Due to
the lack of statutes and personal laws in India at the time, Indian courts settled cases using a system
called Equity, Justice and Good conscience. The Hindu law of ancient times had its own version
of “Justice, Equity and good conscience,” just like the modern Indian legal system. It also dates
back to the British Raj of India. In 1781, the High Court, which was set up by the British Raj,
declared that in cases where the law was unclear or silent, the matter would be decided in
accordance with the principles of Justice, Equity and Good conscience.

Justice, equity and good conscience are often interpreted as referring to the laws and regulations
of England, where no law applies to questions of law. Courts also use “equity, justice and good
conscience” in cases where Hindu law does not exist in relation to personal relationships.

Although this concept has a timeless and unchanging universal value, its application must be
adapted to the myriad situations where justice is required. Like purposive interpretations designed
to correct possible situations that the legislature cannot clearly understand; justice, equity, and
good conscience appear to abstractly fill a legal void that requires justice in a situation. Since the
human mind can never be replaced by a computer, no law can provide justice in all situations. Yes,
the social environment of a particular society may depend on the unchanging values of the old
social system, the ideal values of the developing society, and the moral and social consciousness
represented by the need for justice. Current thinking situations based on real situations. Thus,
British concepts, especially those derived from laws enacted by the state to meet the needs of the
state, do not reflect the universal principles of equal justice and conscience, which necessarily
require caution when applied in the Indian context. Why the omnipresence of high ideas can
enlighten anyone, and the principles applied in another real-world situation may not be relevant.
Mechanical use is dangerous.
This principle was introduced to overcome the shortcomings of ordinary courts. The intensive
proceedings of English common law judges in court of law forced people to approach king for
justice.
History of the principle of Justice, Equity and Good Conscience
In 1780, Bengal first introduced maxim ‘justice, equity and good conscience’. Sir Elijah Impey,
the first Chief Justice of the Calcutta High Court, ruled that Mofussil 1 and Sadar Adalats2 should,
in all cases where no specific instructions were given, act according to the principles of equity,
justice and good conscience. In theory, this ruling gives all heads of litigation, rules for determining
penalties – the theoretical,legal basis for courts to decide cases that do not have specific statutory
norms. Judges are given discretion’to adopt,any rule or practice they deem reasonable in the
circumstances of the case before them. This principle was applied in legislation, resulting in
various laws and many principles of the English language. This principle was gradually introduced
in Bombay, Madras and other provinces of India.

Privy Council

The Central Provinces Laws Act of 1875 (Section 5) 3 and similar laws in other regions of India
established a framework for applying personal laws like Hindu or Muslim law in civil cases.
However, Section 6 of the Central Provinces Act 4 (and corresponding sections in other laws)
addressed situations not covered by these specific personal laws. In these instances, courts were
empowered to decide based on principles of fairness, justice, and good conscience.

The Privy Council, a high judicial authority at the time, further solidified this approach. They
declared that "justice, equity and good conscience" would be the guiding principle for courts
across India in such cases. This essentially served as a fallback mechanism when no existing
legislation, statutory law, or established personal law applied.

1
Warren Hastings' plan of 1772 a Mofussil Adalat was established in every district with collector as the Judge.
2
a high court of civil and revenue jurisdiction. It was instituted by Warren Hastings, the British governor-general, in
1772. It sat in Calcutta (now Kolkata) and was the final court of appeal in civil matters; it consisted of the governor-
general and two members of his council.
3
Rule of decision in cases of certain classes.- In questions regarding inheritance, special property of females,
betrothal, marriage, dower, adoption guardianship, minority, bastardy, family relations wills ,legacies, gifts,
partitions or any religious usage or institution, the rule of decision shall be the Muhammadan law in cases where the
parties are Muhammadans, and the in Hindu law in cases where the parties are Hindus, except in so far a such law
has been by legislative enactment altered or abolished, or is opposed to the provisions of this Act:
4
In cases not provided for by section 5, or by any other law for the time being in force, the Courts shall act
according to justice equity and good conscience
It's important to note that this principle lacked a strict definition. It didn't reference a specific legal
code and offered limited guidance for judges. In essence, it granted judges significant discretion.
They were entrusted with the responsibility of delivering judgments based on their understanding
of fairness and achieving a just outcome for both parties involved in a dispute.

This principle essentially mandated courts to analyze each case individually and determine the
most appropriate legal basis grounded in reason and justice. This established a precedent for judges
to make rulings on a case-by-case basis, allowing them to leverage their understanding of what
constitutes fairness and good conscience when navigating a legal dispute..

The Challenge of Interpretation and the Rise of Guidelines

Before clear guidelines existed, judges interpreting laws based on their own understanding led to
confusion and inconsistency. Over time, principles were developed to guide judicial discretion.
For instance, in contract law, courts aimed to apply established principles of Hindu and Muslim
law in a fair and reasonable way.

Equity, Justice, and Good Conscience in Action

A key example is the concept of "void" contracts entered into by minors, established in the case 5.
This meant such contracts held no legal weight and no claims could be made against minors or
their guarantors. However, the Mofussil courts, applying the principle of "justice, equity, and good
conscience," looked beyond just Hindu and Islamic law. They also considered established local
customs, such as the right to graze cattle on another's land or bury the dead on their property, as
seen in the Manzur Hasan v. Muhammad Zan case 6. Notably, the Privy Council upheld India's
right to public religious processions based on this principle. A new interpetion was given in 19 th
CE.

5
Kallup Nath Singh v. Kumlaput Jah case
6
Manzur Hasan v. Muhammad Zan case,30 may 1920
Sources and Benefits of this Principle
This principle drew from two main sources: justifications for its application and the prevailing
customs of a particular region. Its advantages in India included:

 Providing a framework for legal decision-making, even when existing laws were outdated.
 Introducing concepts like fairness and equity, bringing greater certainty to the legal system.
 Fostering a more unified legal system by having English law as a common reference point
for all courts.

Challenges and the Move Towards Codification

However, there were also drawbacks. Determining how specific English legal rules applied to
India could be complex for courts, and regional variations could lead to inconsistent
interpretations. This is why codifying the law, or creating a comprehensive set of written laws,
was eventually seen as a necessary step.

Justice, equity and good conscience in India’s constitutional design

Justice Doctrine of Supreme Court Jurisdiction
The Supreme Court of India’s system dates back to the Supreme Court of India Act of 1861, which
was passed before the present Supreme Court. The Court of King and the Court of Equity’s
authority is exercised by the Supreme Court of India. But after the introduction of the Constitution
of India, the Supreme Court was established as the highest court in the country’s uniform legal
system, which was given a wider and unfettered discretion, guided only by self-imposed
limitations. The fact that these powers have not been granted to the Supreme Court, however, does
not remove the jurisdiction, even if it has a more limited meaning than the trinity in Articles 32,
1367 and 1428 of the Constitution. Article 226 of the Constitution 9 defines the jurisdiction of the
Supreme Court, which is available in any case of violation of a person’s legal rights, and in this

7
Article 136 deals with the special leave to appeal by the Supreme court. It means that the Supreme Court is
authorised to grant in its discretion special leave to appeal from any judgement in any matter passed by any court or
tribunal in the territory of India (except military tribunal and court-martial).
8
Article 142 empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any
case or matter pending before it.
9
High Courts the power and ability to enforce any of the basic fundamental rights guaranteed
sense it is much broader than Article 32 of the Constitution 10. Article 227 also gives the Supreme
Court general control over all lower courts under its jurisdiction, making it a court of wider
jurisdiction than the Supreme Court

Conclusion
The concepts of “justice, equity, and good conscience” are directly expressed by the broader idea
of natural justice, which is now a defining feature of Indian law. For the doctrine now encompasses
both the literal meaning of the terms employed in English laws as well as crucial principles i.e.
Justice, equity, and Good Conscience. The notion of equity is the foundation for the frequent usage
of words like “fairness,” “public order,” “justice,” etc. in legal and judicial decisions. The approach
of the judiciary in the Maneka Gandhi case epitomizes the application of this doctrine. In this case,
the Supreme Court while interpreting the word “law” in Article 21 of the Constitution of India
held that the law must be just, fair and reasonable. In India we have never had a separate court
(like the UK) to administer equity’. But equitable legal principle, justice, equity and good
conscience drive most laws and court decisions in our country.
However, since the 19th century, the meaning of the term has declined. The reason for this decline
in influence is that most Indian laws are now codified. Most of the laws using the principle of
“justice, equity and good conscience” have been codified by India. But the basis remains the same.
The 1963 Act formalised and established equity as a statutory right, eliminating the courts’
discretion to grant equitable remedy. However, a recent trend in law has been to adopt a novel
strategy rather than a conventional one when incorporating English law.
For all its zeal to develop its own brand of equity and justice. We don’t need to go through the
case laws anymore for the immediate example is the euthanasia case (or Aruna Shuanbagh’s
case) where the Supreme Court relied on English law among other legal systems around the world.
The Supreme Court adopted and cited AIREDALE CASE where the House of Lords held that if
a doctor acts on informed medical advice and withdraws artificial life support when it is in the
patient’s best interests, that action would not be regarded as crime.

10
Article 32 of the Indian Constitution of India confers the Right to Constitutional Remedies for the enforcement of
the fundamental rights of an aggrieved citizen
Hence, it can be said that the dependence of the Indian Judiciary on British jurisprudence has not
disappeared to a large extent. However, the formula of the principle of “justice, equity and good
conscience” is far from satisfactory. Because the principle “justice, equity and good conscience”
does not have a clear and definite meaning. It does not apply to a specific legal entity. In short, it
is the judge’s discretion. This principle (doctrine) also opens up opportunities for judicial
legislation from case to case. Moreover, applying laws developed in different climates and
different civilizations thousands of kilometers away is pure nonsense. History is clear that Indian
courts have refused to apply certain principles of English law.

Together, justice, equity, and good conscience form the basis of many legal decisions, particularly
in cases where the law is unclear or where the strict application of the law may result in an unjust
outcome. In such cases, judges may use their discretion to apply these principles in order to arrive
at a decision that is fair and just.

For example, in a case where a person is facing eviction from their home, a judge may consider
not only the letter of the law, but also the individual’s circumstances and whether it would be just
to evict them. The judge may consider factors such as the person’s financial situation, their health,
and their family circumstances in order to arrive at a decision that is fair and just.

Overall, justice, equity, and good conscience are essential principles that help ensure that legal
decisions are fair, impartial, and just. By upholding these principles, societies can work towards
creating a more equitable and just world for all.
,BIBLOGRAPHY

WEB SOURCES

 https://dejurenexus.com/wp-content/uploads/2022/03/Equity-Justice-and-
Good-Conscience-as-a-Souce-of-Hindu-Law-By-Shubhra-Goyal.pdf
 https://articles.manupatra.com/article-details/Principles-of-Justice-Equity-
and-Good-Conscience-Legal-Discourse-with-Reference-to-Article-21-of-
the-Constitution-Of-India
 https://theamikusqriae.com/justice-equity-and-good-conscience/

BOOKS

 Jain, M.P .Indian legal and constitutional history, lexis nexis,7th ed.2014