Equity_justice_and_good_conscience.doc

As a branch of a legal system Equity refers to the principles or rules arising from the process of administration of justice in those cases or areas which are not sufficiently covered by the Statutes. Since, it is not feasible on the part of the state to devise a comprehensive code of law in order to govern every contingency; Equity supplements the law with the essence of liberty and kindness. In India, Equity owes its origin to the ancient Hindu period when legal experts defined the old laws and set out new rules of interpretation and equitable solutions in case of any conflict between rules of different laws. For the administration of Equity there was never established any separate court in India since most part of the law for application by the court is codified. However, the courts act according to the principles of Equity, justice and good conscience in the absence of any specific law or usage in matters placed before the court. Principles of Equity are also clearly noticeable in the Mohammedan Law. The English Laws also contributed to the development of Equity jurisdiction in India. The Regulation of 1827 laid down a provision which required the East India Company Courts to act according to the principles of justice, Equity and good conscience in the absence of any specific law or usage. In most of the laws enacted in India for the guidance of the judges, the provision of the rule of justice, Equity and good conscience has been expressly laid down. The principle of Equity has been codified in various laws, such as, the Specific Relief Act, 1877, the Indian Trusts Act, 1882, the Indian Succession Act, the Guardian and Wards Act, the Indian Contract Act, 1872 and in the Transfer of Property Act, 1882.

A SENSE OF JUSTICE. If law is the means then justice is the end. Much less to say that it’s the ends that defines the means. What is natural justice in a common parlance is the question that is to answer what in fact is the term ‘a sense of justice’ means. Natural justice in best of its sub-normality means ‘common sense justice’, justice that favours and conforms to human conscience. To define what natural justice is, is the most easy of task but to define its extent is very difficult. Law is ever changing, it develops with society and withers down with it, and so is the case for principles of natural justice. As the adage goes: Customs have the force of law, statutory laws many times in derogation with customary laws have to settle themselves becoming merely dead letter laws, that is, law only on papers but not in

force. This is so because such statutory laws do not confirm to the consciousness of people in some sense, however much less to say, customary laws lose their imprint over a passage of time with the development of society, if such customary laws were anarchic in some sense. So here by we can say that it is the ‘will of the people’ that is the prima facie governing factor and henceforth to say that principle of natural justice in some sense of the terms define the sense justice because they range so close to human conscience. Principles of natural justice are more than the sacred terminology of what we call ‘justice, equity and good conscience’. Equality and fairness are virtues of natural justice. As Justice Krishna Iyer says, ‘Natural justice is virtue of virtues and not merely a sense of righteousness or wrong. It has being in existence since humanity came about in existence and are supposed to remain in existence until humanity derives its existence because they enthral their existence not from pen and paper but from human psyche in its purest form.’ Broadly speaking law is either procedural or substantive and laws derive their existence from customs, precedents and legislature. Law is a child of human thought and human conscience is mother of human thought henceforth Prof. Bakshi goes further to say that ‘a judgement is nothing but law in its final form in a given case, subject to facts and circumstance of each case, and any judgement so given cannot be in contrary to principles of natural justice’. Hence law abrogating the principles of natural justice must be rendered ultra vires. Such is the might of natural justice. Lord Atkinson once said: ‘Might is Right. Law is might, justice is right but justice which is natural is mightier than might.’

Natural Justice and Latin legal maxims: It is not a hidden truth that Latin legal maxims draw their existence from principles of natural justice. ‘Let one divide and the other choose’ or ‘He who seeks equity must do equity’ or ‘He who comes for justice must come with clean hands’.

‘Facts are more powerful than words’ or ‘Gross negligence is equal to Fraud’ or ‘An act done by me against my will is not my act’. There may be some exceptions to the above stated maxims but the thing to be seen in accordance to the suitability of this essay is that, all these oblige and observe the spirit of ‘natural justice’ in all their form.

Principles of Natural Justice not merely Substance over Form: Justice Krishna Iyer is considered as the champion of Indian legal arena, much because the judgements he delivered stressed more on morality, fairness and equity than on the procedural or substantive law. He is often of the opinion as expressed by him through his columns published in the Hindu, that lawyers can mould laws as per the needs of their case, but no lawyer in the world can mould morality or a sense of fairness. Henceforth Mr. Iyer advices the budding judges to get the facts of the case right and then weigh them in scales of natural justice— human conscience in its purest form, before colouring the judgement in substantive and procedural law. The same is been shown by the Judicial Maestro in much of his judgements, whether to talk about the famous, Bangalore Water Supply case [1978 AIR 548, 1978 SCR (3) 207], which forever overturned the definition of the word ‘industry’, in an opinion expressed by Mr. Iyer about the judgement he so delivered, he said, to protect the oppressed from being oppressed is what law is all about, this is what natural justice calls for. Since then the word ‘industry’ is defined from a labour oriented point of view. In Som Prakash Rekhi v. U.O.I [1981 AIR 212, 1981 SCR (2) 111], Justice Iyer governed by spirit more of morality or Justice, equity and good conscience overturned the definition of ‘State’ as expressed by Article 12, forever aligning the same in consonance with what we call the spirit of fairness, which in fact is a byproduct of natural justice. The focal point of the case was this line: ‘the power which is derived is not greater than that from which it is derived’. Similarly in cases of death penalty, the substantive and procedural law of India says that it must be granted only in rarest of rare cases, as this is how the language

of sec. 354(3), the C.R.P.C, 1973 goes. Cases which shock the consciousness of the court are the cases in which death penalty may be granted. But what the natural right activist argue is that, law in its simplicity says ‘no one shall take what he cannot give’, if Court of law by its order cannot give life then in that case it should stripe itself off from right to take life. This issue is often talked of in light of Article 21 of Indian Constitution, that is right to life and personal liberty, which again is a culmination of the natural rights brigade.

Natural Justice and the Sense of ‘Rights’: Natural justice claims of three rights: natural rights, neutral rights and civil rights. Natural rights comes to a person by virtue of his existence, that is right to life & personal liberty, right to enjoy air, water and sunshine, right to grow and develop. Neutral rights comes to a person by virtue of his being a citizen of a particular country, that is, right to state protection, right to benefit oneself from natural resources of a particular country, right to gainful employment, right to livelihood. Civil rights have the basis of their existence in neutral rights, these are the rights conferred to an individual by virtue of his being a member of society, that is right to associate, recreate, and enjoy one another’s company. Henceforth it will not be downright unfair to say that basis of all rights more or less, somehow rests in principles of natural justice.

Natural Justice in common parlance: Ignoring the might of the timeless principles of natural justice, their broadness is narrowed down in present day context more or less in two forms: 1. No one can be a judge of his own case or ‘rule against biasness’. 2. Right to be heard as a necessity of fair trial. But principles of natural justice are far in length and breadth to encompass almost anything to everything in law. They are the means and ends encompassing all substantive and procedural laws.

Knowledge of law as substantive and procedural, is important but is lame without ‘a sense of justice’, Natural Justice.

‘’ The Law locks up both men & women, Who steals the goose from off the common. But lets the greater felon loose, Who steals the common from the goose.’’ --JUSTICE KRISHNA IYER. (An extract from ‘Off the Bench’)

Conscience is an aptitude, faculty, intuition or judgment that assists in distinguishing right from wrong. Moral judgment may derive from values or norms (principles and rules). In psychological terms conscience is often described as leading to feelings of remorse when a human commits actions that go against his/her moral values and to feelings of rectitude or integrity when actions conform to such norms.[1] The extent to which conscience informs moral judgment before an action and whether such moral judgments are or should be based in reason has occasioned debate through much of the history of Western philosophy.[2] Religious views of conscience usually see it as linked to a morality inherent in all humans, to a beneficent universe and/or to divinity. The diverse ritualistic, mythical, doctrinal, legal, institutional and material features of religion may not necessarily cohere with experiential, emotive, spiritual or contemplative considerations about the origin and operation of conscience.[3] Common secular or scientific views regard the capacity for conscience as probably genetically determined, with its subject probably learned or imprinted (like language) as part of a culture.[4] Commonly used metaphors for conscience include the "voice within" and the "inner light".[5] Conscience, as is detailed in sections below, is a concept in national and international law,[6] is increasingly conceived of as applying to the world as a whole,[7] has motivated numerous notable acts for the public good[8] and been the subject of many prominent examples of literature, music and film.[9]

Contents

Equity (legal concept) From Wikipedia, the free encyclopedia Jump to: navigation, search This article is about the area of law. For remedies offered by this area of law, such as injunctions and specific performances, see equitable remedy.

The Court of Chancery, London, in the early 19th century

In jurisdictions following the English common law, equity is the set of legal principles that supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clauses" allow judges to have similar leeway in applying the code.[1] Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules, and English and Australian legal writers tend to focus on technical aspects of equity. There are 12 "vague ethical statements", known as the Maxims of equity,[2][3] that guide the application of equity, and an additional five can be added.[2] As noted below, a historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor occasionally judging in the main according to his own conscience. The rules of equity later lost much of their flexibility, and from the 17th century onwards equity was rapidly consolidated into a system of precedents much like its common-law cousin.

Contents 

1 History o 1.1 Development of equity in England

o 

1.2 Statute of Uses 1535

2 Comparison of equity traditions in common law countries o

2.1 United States

o

2.2 India

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3 See also

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4 Notes

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5 References

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6 External links

History Main article: History of equity

Equity was developed two or three hundred years after the birth of the common law system to resolve disputes where damages were not a suitable remedy, and in an effort to introduce fairness into the legal system. The distinction between "law" and "equity" is an accident of history. The law courts or "courts of law" were the courts in England that enforced the king's laws in medieval times. Here the King's Judges, educated in law rather than theology, administered the universal law of the realm.[4] This body of law evolved on the basis of previously set precedent into what is recognized as the Common law of England. However, if changes were not quick enough, or if decisions by the judges were regarded as unfair, litigants could still appeal directly to the King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the just treatment of his subjects. Such filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began regularly to delegate the function of resolving such petitions to the Chancellor, an important member of the King's Council.[4] The early Chancellors were often clergymen, acting as the King's confessor and thereby sacerdotally as keeper of the King's conscience. As a result of their theological and clerical training, Chancellors were well versed in Latin and French, as well as in classical Roman civil and canon law, which heavily influenced the development of equity.[5] Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery". By the 15th century, the judicial power of Chancery was recognized. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor. One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role which the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between legal and equitable interests.

Development of equity in England

It was early provided that, in seeking to remove one who wrongfully entered another's land with force and arms, a person could allege disseisin (dispossession) and demand (and pay for) a writ of entry. That writ not only gave him the written right to re-enter his own land, but it also established this right under the protection of the Crown if need be, whence its value. In 1253, to prevent judges from inventing new writs, Parliament provided that the power to issue writs would thereafter be transferred to judges only one writ at a time, in a "writ for right" package known as a form of action. However, because it was limited to enumerated writs for enumerated rights and wrongs, the writ system sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them. Therefore, lacking a legal remedy, the plaintiff's only option would be petitioning the King. People started petitioning the King for relief against unfair judgments and as the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor. As the early Chancellors had no formal legal training, and were not guided by precedent, their decisions were often widely diverse. However, in 1529 a lawyer, Sir Thomas More, was appointed as Chancellor, marking the beginning of a new era. After this time, all future Chancellors were lawyers, and from around 1557 onwards, records of proceedings in the Courts of Chancery were kept, leading to the development of a number of equitable doctrines. Criticisms continued, the most famous being 17th century jurist John Selden's aphorism: ‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ‘tis the same thing in a Chancellor’s conscience.’[6] As the law of equity developed, it began to rival and conflict with the common law. Litigants would go ‘jurisdiction shopping’ and often would seek an equitable injunction prohibiting the enforcement of a common law court order. The penalty for disobeying an equitable ‘common injunction’ and enforcing a common law judgment was imprisonment. The Chief Justice of the King’s Bench, Sir Edward Coke, began the practice of issuing writs of habeas corpus that required the release of people imprisoned for contempt of chancery orders. This tension grew to an all-time high in the Earl of Oxford’s case (1615), where a judgment of Chief Justice Coke was allegedly obtained by fraud.[7] The Lord Chancellor, Lord Ellesmere, issued a common injunction out of the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the common injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system.

Once equity became a body of law, rather than an arbitrary exercise of conscience, there was no reason why it needed its own courts. Consequently the Judicature Act was established, which is the basis of the court structure in England to this date, to ensure that there would no longer be different procedures for seeking equitable and common law remedies. The Judicature Acts fused only the administration of common law and equity; there is still a body of rules of equity which is quite distinct from that of common law rules, and acts as an addition to it. Although they are implemented by the same courts, the two branches of the law are separate. Where there is conflict, equity still prevails.[8] Statute of Uses 1535

In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called ‘the use’. This trust enabled one person (who was not required to pay tax) to hold the legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity. Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of the land the legal owner, and liable for feudal dues. The response of the lawyers to this Statute was to create the 'use upon a use'. The Statute recognized only the first use, and so land owners were again able to separate the legal and beneficial interests in their land. For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor[9] See generally treatises on equity and trusts.

Comparison of equity traditions in common law countries This article possibly contains original research. Please improve it by verifying the claims made and adding inline citations. Statements consisting only of original research may be removed. (November 2007)

As with the geographical transmission of any cultural artifact, direct English influence over equity weakened with time and distance, although the widespread import of printed opinions provided a corrective force, however long delayed. As the colonies gained political independence, each of their legal systems began drifting from the original in an irreversible departure from the English way of making laws and deciding cases. Nonetheless, each former colony acknowledged the reception of the common law and equity of England as a vital source of their jurisprudence. The comparative question is an easy one to pose. Did English equity develop maturity early enough that all of its derivative systems necessarily tended toward the same doctrines, based on exactly the same set of general principles? Or did the split-offs of any of the colonies occur

somewhere in the middle of its development so that substantial permanent differences resulted? One equity, or many? The answer generally accepted in America, the earliest of the English colonies to gain independence, is the former, that the outcome of a case to be decided today upon principles of equity should be expected to be substantially the same whether decided in the UK or the US. The reasonableness of the belief enjoys strong historical support. The perfection of modern equity as a system has been authoritatively credited to Philip Yorke, 1st Earl of Hardwicke who served as Chancellor 1737–1756.[citation needed] For a review of several distinct approaches to identifying how law changes that utilize English legal history as a test bed see Robert Palmer, English Legal History course. United States

In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often this form of relief is in practical terms more valuable to a litigant; for example, a plaintiff whose neighbor will not return his only milk cow, which had wandered onto the neighbor's property, may want that particular cow back, and not just its monetary value. However, in general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"; that is, a court will not grant an injunction unless monetary damages are an insufficient remedy for the injury in question. Law courts can also enter certain types of immediately enforceable orders, called "writs" (such as a writ of habeas corpus), but they are less flexible and less easily obtained than an injunction. Another distinction is the unavailability of a jury in equity: the judge is the trier of fact. In the American legal system, the right of jury trial in civil cases tried in federal court is guaranteed by the Seventh Amendment, but only "[i]n Suits at common law," i.e., in cases that traditionally would have been handled by the law courts. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and a jury is available as the fact-finder. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance, or modification of contract, or some other non-monetary relief, the claim would usually be one in equity. Thomas Jefferson explained in 1785 that there are three main limitations on the power of a court of equity: "If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule."[10] The U.S. Supreme Court, however, has concluded that courts have wide discretion to fashion relief in cases of equity. The first major statement of this power came in Willard v. Tayloe, 75 U.S. 557 (1869). The Court concluded, "...relief is not a matter of absolute

right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case."[11] Willard v. Tayloe was for many years the leading case in contract law regarding intent and enforcement.[12][13] as well as equity.[12] [14]

In the United States today, the federal courts and most state courts have merged law and equity in the courts of general jurisdiction, such as county courts. However, the substantive distinction between law and equity has retained its old vitality.[15] This difference is not a mere technicality, because the successful handling of certain law cases is difficult or impossible unless a temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for instance. Furthermore, certain statutes like ERISA specifically authorize only equitable relief, which forces U.S. courts to analyze in lengthy detail whether the relief demanded in particular cases brought under those statutes would have been available in equity.[16] Equity courts were widely distrusted in the northeastern U.S. following the American Revolution. A serious movement for merger of law and equity began in the states in the mid-19th century, when David Dudley Field II convinced New York State to adopt what became known as the Field Code of 1848.[17] The federal courts did not abandon the old law/equity separation until the promulgation of the Federal Rules of Civil Procedure in 1938. Today three states still have separate courts for law and equity; the most notable is Delaware, whose Court of Chancery is where most cases involving Delaware corporations are decided.[18] However, merger in some states is less than complete; some other states (such as Illinois and New Jersey) have separate divisions for legal and equitable matters in a single court. Besides corporate law, which developed out of the law of trusts, areas traditionally handled by chancery courts included wills and probate, adoptions and guardianships, and marriage and divorce. After U.S. courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as joinder, counterclaim, cross-claim and interpleader originated in the courts of equity. Also, the modern class action evolved out of the equitable doctrine of virtual representation, which enabled a court of equity to fully dispose of an estate even though it might contain contingent interests held by persons which the court did not have direct jurisdiction over. India

In India the common law doctrine of equity had traditionally been followed even after it became independent in 1947. However in 1963 the "Specific Relief Act" was passed by the Parliament of India following the recommendation of the Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under: 

Recovery of possession of immovable property (ss. 5–8)

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Specific performance of contracts (ss. 9–25)

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Rectification of Instruments (s. 26)

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Recession of Contracts (ss. 27–30)

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Cancellation of Instruments (ss. 31–33)

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Declaratory Decrees (ss. 34–35)

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Injunctions (ss. 36–42)

With this codification, the nature and tenure of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to the extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of the Code of Civil Procedure, 1908, which applies to all civil courts in India. There is no such inherent powers with the criminal courts in India except with the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which confers wide powers on the Supreme Court to pass orders "as is necessary for doing complete justice in any cause of matter pending before it".

See also