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THE HAMLYN LECTURESTWELFTH SERIESTHE COMMON LAW IN INDIA


AUSTRALIAThe Law Book Co. of Australasia Pty Ltd.Sydney : Melbourne : BrisbaneCANADA AND U.S.A.The Carswell Company Ltd.TorontoINDIAN. M. Tripathi Private Ltd.BombayNEW ZEALANDSweet & Maxwell (N.Z.) Ltd.WellingtonPAKISTANPakistan Law HouseKarachi


The Common Lawin IndiaBYM. C. SETALVAD, Padma Vibhufhan,Attorney-General of IndiaPublished under the auspices ofTHE HAMLYN TRUSTLONDONSTEVENS & SONS LIMITEDI960


First published in I960 byStevens & Sons Limitedof 11 New Fetter Lane inthe City of London andprinted in Great Britainby The Eastern Press Ltd.of London and ReadingStevens & Sons, Limited,1960London


CONTENTSThe Hamlyn Trust - - - - - page vii1. RISE OF THE COMMON LAW 12. CIVIL L A W - - - - - - - 6 33. CRIMINAL LAW - - - - - - u s4. THE INDIAN CONSTITUTION - - - - 168EPILOGUE 224


HAMLYN LECTURERS1949 The Right Hon. Lord Denning1950 Richard O'Sullivan, Q.C.1951 F. H. Lawson, D.C.L.1952 A. L. Goodhart, K.B.E., Q.C, F.B.A.1953 Sir Carleton Kemp Allen, Q.C, F.B.A.1954 C. J. Hamson, M.A., LL.M.1955 Glanville Williams, LL.D.1956 The Hon. Sir Patrick Devlin1957 The Right Hon. Lord MacDermott1958 Sir David Hughes Parry, Q.C, M.A., LL.D., D.C.L.1959 C. H. S. Fifoot, M.A., F.B.A.1960 M. C. Setalvad, Padma VibhufhanVI


THE HAMLYN TRUSTTHE Hamlyn Trust came into existence under thewill of the late Miss Emma Warburton Hamlyn, ofTorquay, who died in 1941, aged eighty. She cameof an old and well-known Devon family. Her father,William Bussell Hamlyn, practised in Torquay as asolicitor for many years. She was a woman ofdominant character, intelligent and cultured, wellversed in literature, music and art, and a lover of hercountry. She inherited a taste for law, and studiedthe subject. She travelled frequently on the Continentand about the Mediterranean and gathered impressionsof comparative jurisprudence and ethnology.Miss Hamlyn bequeathed the residue of her estatein terms which were thought vague. The matter wastaken to the Chancery Division of the High Court,which on November 29, 1948, approved a scheme forthe administration of the Trust. Paragraph 3 of theScheme is as follows:" The object of this charity is the furtheranceby lectures or otherwise among the CommonPeople of the United Kingdom of Great Britainand Northern Ireland of the knowledge of theComparative Jurisprudence and the Ethnology ofthe chief European countries, including the UnitedKingdom, and the circumstances of the growthof such jurisprudence to the intent that the CommonPeople of the United Kingdom may realisethe privileges which in law and custom they enjoyin comparison with other European Peoples andvii


viiiThe Hamlyn Trustrealising and appreciating such privileges mayrecognise the responsibilities and obligationsattaching to them."The Trustees under the Scheme number nine, viz.:(a) Mr. S. K. COLERIDGE ,,. XT \ ,v ' \ Miss Hamlyn'sMr. J. R. WARBURTON(b) Representatives of the Universities of London,Wales, Leeds, Glasgow and Belfast, viz.:Professor G. W. KEETONProfessor D. J. LI. DAVIESProfessor P. S. JAMESProfessor D. M. WALKERProfessor J. L. MONTROSE(c) The Vice-Chancellor of the University ofExeter, ex officio (DR. J. W. COOK).(d) DR. JOHN MURRAY (co-opted).The Trustees decided to organise courses of lecturesof high interest and quality by persons of eminenceunder the auspices of co-operating Universities orother bodies with a view to the lectures being madeavailable in book form to a wide public.The twelfth series of Hamlyn Lectures was deliveredin October 1960 by Mr. M. C. Setalvad, PadmaVibhufhan, the Attorney-General of India, at Lincoln'sInn, by courtesy of the Treasurer and Mastersof the Bench of the Honourable Society of Lincoln'sInn, and with the co-operation of the British Council.JOHN MURRAY,Chairman of the Trustees.October, 1960.


CHAPTER 1THE RISE OF THE COMMON LAWI. INTRODUCTORYTHE scheme of the Trust under whose auspices I havethe privilege of delivering these lectures speaks of thefurtherance among the Common People of the UnitedKingdom of the knowledge of the Comparative Jurisprudenceof the chief European countries. The themeof these lectures has perhaps a wider scope. We shallundoubtedly be in the realm of comparative jurisprudence;but the comparison will be between thebasic principles which have been the foundation ofthe public and private law of England, and thesystem of laws and administration of justice calledthe Anglo-Indian or the Indo-British system intowhich these basic English principles have in thecourse of over two centuries grown and developed.Beginning with its application in the seventeenthcentury to British subjects in small areas in certainparts of India which were known as the Company'sfactories, the common law of England with its statutorymodifications and the doctrines of the Englishcourts of equity has deeply coloured and influencedthe laws and the system of judicial administration ofa whole sub-continent inhabited by nearly four hundredmillion people. The law and jurisprudence ofthis vast community and its pattern of judicialadministration are in many matters different from1


2 The Common Law in Indiathose of England in which they had their roots andfrom which they were nurtured. Yet they bear theunmistakable impress of their origin. The massivestructure of Indian law and jurisprudence resemblesthe height, the symmetry and the grandeur of thecommon and statute law of England. In it one seesEnglish law in the distant perspective of a newatmosphere and a strange clime.The growth of a jurisprudence so closely modelledon the English pattern would have caused no surprisehad the English settlements in India been in an uninhabitedor barbarous country. To such a country" they carry with them not only the laws, but thesovereignty of their own state; and those who liveamongst them and become members of their communitybecome also partakers of, and subject to thesame laws." 1 But this was not the nature of thefirst settlement made in India. That " was a settlementmade by a few foreigners for the purpose oftrade in a very populous and highly civilised country,under the Government of a powerful Mahomedanruler, with whose sovereignty the English Crown neverattempted nor pretended to interfere for some centuriesafterwards." 2 It will be the purpose of theselectures to unfold the fascinating story of what SirFrederick Pollock has called the Expansion of theCommon Law in India.An account of the development and growth of Indo-British jurisprudence would in a way be inextricably1 Advocate-General of Bengal v. Ranee Surnomoye Dossee (1863)9 Moore Ind.App. at 424.2 Ibid., at pp. 424-425.


The Rise of the Common Law 3mixed up with the history of the foundation of thecourts in various parts of India, and the statutes ofthe British Parliament and the charters granted bythe British Crown which denned their powers andjurisdiction and prescribed the laws which they wereto apply. But we have to bear in mind that thestudy of comparative jurisprudence contemplated bythe Hamlyn Trust is for the benefit of the CommonPeople of the United Kingdom. It will, therefore,be my endeavour to trace the development of Indianjurisprudence through a period of over two centuries,pointing out its close similarity to what may be termedthe mother jurisprudence of England in as simple amanner as possible.I have chosen as the title of these lectures " TheCommon Law in India." The expression " CommonLaw of England " would necessarily convey to thepurist of jurisprudence those unwritten legal doctrinesembodying English custom and English traditionwhich have been developed over the centuries by theEnglish courts. So understood it would not includeand would be different from the English statute lawwhich has from time to time modified the commonlaw. But the English brought into India not onlythe mass of legal rules strictly known as the commonlaw but also their traditions, outlook and techniquesin establishing, maintaining and developing the judicialsystem. When, therefore, I speak of the commonlaw in India I have in view comprehensively all thatis of English origin in our system of law. In thatwide meaning the expression will include not onlywhat in England is known strictly as the common law


4 The Common Law in Indiabut also its traditions, some of the principles underlyingthe English statute law, the equitable principlesdeveloped in England in order to mitigate the rigoursof the common law and even the attitudes andmethods pervading the British system of the administrationof justice. My justification for the use of theexpression in such an extended sense is perhaps thedifficulty in finding a more appropriate expression.II. HISTORICALPeriod ending A.D. 1726The history of present-day Indo-British jurisprudencecommences with the formation of the LondonEast India Company in 1600 in the reign of QueenElizabeth I. The charters of Queen Elizabeth andJames I granted to the Company in the years 1600and 1609 gave the " power to them to make, ordainand constitute such and so many reasonable laws,constitutions, orders and ordinances as to them . . .shall seem necessary ... so always that the saidlaws, orders, constitutions, ordinances, imprisonments,fines and amerciaments be reasonable and not contraryor repugnant to the laws, statutes, customs of thisour realm." 3 The position of the Company's factoriesin India was at that time somewhat anomalous. Theywere, generally speaking, a part of the dominion ofthe Moghul. Yet since the very early days theCompany had obtained the authority of the BritishCrown to administer justice and constitute judicialauthorities in the areas covered by these factories.3 H. Cowell, Tagore Law Lectures, 1872, 12-13.


The Rise of the Common Law 5In order that they might be able to administer justiceaccording to their own notions and in accordancewith laws with which they were familiar the Companyhad endeavoured to obtain permission to administertheir own laws in these areas. Thus Sir Thomas Roe,the Ambassador of James I of England, had securedby a treaty with the Moghuls in 1618 the privilegeof deciding the disputes between the English in theirfactory at Surat. 4In 1661 the charter of Charles II gave to the Governmentand Council of several places belonging to theCompany the power " to judge all persons belongingto the said Government and Company or thatshould live under them in all causes whether civilor criminal according to the laws of this Kingdomand to execute judgment accordingly." 5 This generalprovision is understood to have put the judicial powerin the sole hands of the executive government and"restricted the law to be administered to that inforce in England."Almost contemporaneously with this charter camethe cession of the island of Bombay by the Portugueseto the English and its lease by Charles II to theEast India Company in 1668 at a quit-rent of £10per year. This was territory which had for a considerableperiod been under Portuguese rule andPortuguese law governed it. It is interesting to seehow the island, which was not part of the territoryof the Moghuls like the factory areas and which came* Ibid., 6th ea., p. 12.5 Fawcett, The First Century of the British Justice in India,1934, Introduction, p. xix.


6 The Common Law in Indiaunder the sovereignty of the Crown, was treated inthe matter of the administration of justice and theapplication of laws.The charter of Charles II transferring the island tothe Company required the Company to enact laws" consonant to reason, and not repugnant or contraryto" and " as near as may be agreeable to" theEnglish laws. The charter also directed that thecourts and their procedures should be " like unto thosethat are established and used in this our realm ofEngland." 6Rules for the civil government and equal distributionof justice upon the island were drafted in Englandby the Company's law officers and, after the approvalby the Solicitor-General, a draft was settled and engrossedto be sent out to India in 1669. These lawswere divided into six main sections which includeda section entitled " Establishing a Method for DueProceedings." This section provided for the establishmentof a court of judicature for the decision of allsuits and criminal matters under a judge to beappointed by the Governor and Council, and for alltrials in the court to be by a jury of twelve Englishmen,except when any party to the dispute was notEnglish, in which case the jury was to be half Englishand half non-English. It also made provision forregular sittings of the court, the recording of itsproceedings in registers, the fixing of reasonablecourt fees and for a right of appeal from the courtof judicature to the Governor, or Deputy Governor,6 Ibid., p. 6.


The Rise of the Common Law 7and Council, which was constituted the Supreme Courtin the port and island. 7There is little information about the administrationof criminal justice during this period and the applicationof the laws of the Company. But the correspondencebetween Bombay and Surat, where thefactory of the Company was situated and where theGovernor resided, contains references to the trial byjury of crimes like theft, murder and mutiny. TheGovernor's instructions dealing with a case of mutinyby soldiers are interesting:"For the tryall of those notorious mutiners that tore theProclamation and opposed the execution of justice on thewench you caused to be shaved and sett on an ass, lett aJury be empannelled, whom if they find guilty of mutiny,lett them be sentenced, condemned, and executed accordingto the 8rd Article of the Hon. Company's Lawes for thepreservation of the peace and suppression of mutiny, seditionand Rebellion." 8It is said that the punishment of the wench resembledthat used by Moslems when they wanted to humiliatean offender. The authorities in Bombay evidentlydid not always feel themselves bound by the penaltiesprescribed by the Company's laws and tookadvantage of punishment more in accordance with theprevalent punishments in the surrounding country.A more interesting case is that of the trial by ajury of twelve men of a wizard who was " foundguilty both of witchcraft and Murder." The reportof the trial states:"To the last wee intended to have hanged him; only it wasgenerally advised that burning would be farr the greater7 Ibid., pp. ia-16.8 Ibid., pp. 42-44.


8 The Common Law in Indiaterrour, as also'e that a single wizard deserving hanging,whereas he had now murthered 5 men in 6 months and hadbin twice banished before for a wizard, soe we burnt him." 9In accordance with the prevailing belief in witchcraftthose in charge of the trial were, it appears, " fullyconvinced of the wizard's supernatural powers " forthey stated that "when he lay.in the midst of sogreat a fire . . . yet not withstanding his great knotof haire on his head . . . was intire." It appearsthat the sentence of burning was one authorised bya statute of 1603, which continued in force till 1786.It further appears that the Company's laws left themode in which a sentence of death should be carriedout to the discretion of the Deputy Governor andCouncil.In the year 1672 the plan formed by GovernorAungier for the establishment of the English lawsand a court of judicature in the island was put intoexecution. " The English laws voted to be put inpractice " is an entry made in the month of June1672 and later there follows the issue of a proclamation" for abolishing (from and after the 1st day ofAugust next) the Portugal laws, and for establishingthe English." 10A report written by a Mr. Wilcox, who was in effectthe first judge to preside over the court to be establishedin December 1672, contains an account of theproceedings of the opening of the court on August 8,1672, which is somewhat reminiscent of the ceremonial9 Ibid., pp. 42-44.i» Ibid., pp. 48-49.


The Rise of the Common Law 9observed in those years at the inauguration of courtsin England."There was a ceremonial procession from the Fort throughthe Bazaar to the Guildhall in the following order:Fifty Bandaries in Green liveries marching two by two.6 " UC Each representing their several cast or sect-rching two by two.IHis Honours horse of State lead by an Englishman.Two trumpets and Kettle Drums on horse back.The English and Portugal Secretary on horse back carryinghis Majesties letters Patents to the Honble. Company andtheir Commission to the Governor tyed up in scarfes.The Justices of the Peace and Council richly habited on horseback.The Governor in his Pallankeen with fower English pages oneach side in rich liveries bare headed surrounded at distancewith Peons, and blacks.The Clerke of the Papers on foot.The fower Atturneys, or Common pleaders on foot.The keeper of the prisons and the two Tipstaffs on foot,barfe headed before the Judg.The Judg on horse back on a Velvet foot cloath.His Servants in Purple serge liveries.Fower Constables with their staves.Two Churchwardens.Gentlemen in Coaches and Palakeens.Both the Companies of foot (except the main Guard) marchingin the Reare." "After the imposing procession had reached the Guildhallthere took place proceedings which are bestdescribed in the words of Wilcox himself."... the Governor entring the Court, tooke the Chaire,placing me next to him on his right hand, and the Gentlemenof the Council and Justices tooke their places accordingly.Proclamation being made and silence commanded, the Clerkeof the papers read his Majesties letters of Patents to theHonble. Company for the Island Bombay, then the English" Ibid., pp. 52-55.H.I..—12 2


10 The Common Law in IndiaSecretary read the Company's Commission to the Governor,which being done he was pleased to give me my oath asJudg, as also my Commission, which was likewise read; nextI swore the Publick notary and Coroner, then the Clerk ofthe Peace swore the Churchwardens and Constables, and'theirstaves were delivered to them by the Governor, with a chargeto execute their respective offices and places honestly and uprightly;after this the Governor standing up (and the Courtalso rising was pleased to make a most excellent speech oncommendation of the English laws." nThe noble words of Governor Aungier deserve to bereproduced for they enunciate principles which in thecourse of years that followed set the pattern for theadministration of justice not only in the island butin other areas in the country which gradually fellunder the sway of the British. Said the Governor:"The Inhabitants of this Island consist of severall nationsand Religions to wit—English, Portuguess and other Christians,Moores, and Jentues, but you, when you sit in this seat ofJustice and Judgement, must looke upon them with one singleeye as I doe, without distinction of Nation or Religion, forthey are all his Majesties and the Honble. Company's subjectsas the English are, and have all an equall title and right toJustice and you must doe them all Justice, even the meanestperson of the Island, and in particulare the Poore, the Orphan,the Widdow and the stranger, in al matters of controversy,of Common right, and Meum and Tuum; And this not onlyone against the other, but even against myself and those whoare in office under me, nay against the Honble. Companythemselves when Law, Reason and Equity shal require yousoe to doe, for this is your Duty and therin will you bejustified, and in soe doing God will be with you to strengthenyou, his Majestie and the Company will commend you andreward you, and I, in my place, shall be ready to assist,Countenance, honour and protect you to the utmost of thepower and Authority entrusted to me; and soe I pray Godgive his blessing to you." 1212 Ibid., pp. 52-55.


The Rise of the Common Law 11Thus were laid the foundations in the seventeenthcentury albeit in the small area of the town and islandof Bombay of the application of English laws toIndians residing in the Presidency Towns and of thesystem of administering justice fostered by the commonlaw in England.The provisions which we have seen applied to whatlater became the Presidency Towns of Calcutta andBombay. Between 1686 and 1694 the Company purchasedcertain villages in Bengal with the consent ofthe Nawab of Bengal and acquired the status of aZamindar in regard to these villages. As the Zamindarthe Company held Zamindar's courts exercisingboth civil and criminal jurisdiction. These courtsderived their authority from the Moghuls as theCompany held its Zamindari from them. The lawadministered and the procedure followed in thesecourts were similar to those in the courts where otherZamindars exercised the jurisdiction. 13The year 1726 can be said to mark the end of thefirst period of the exercise of British power in India.It marked the rise of the factories at Bombay, Madrasand Calcutta which in course of time grew into thethree Presidency Towns. The Company graduallyincreased the area of its supervision and control overplaces surrounding these growing factories. Thesurrounding areas were called the mofussil incontradistinction to the Presidency Towns. ThesePresidency Towns played the leading role in the introductionof the common law into India." Ibid., p. 208.


12 The Common Law in IndiaMayors' courtsIn the year 1726 the Crown granted Letters Patentcreating mayors' courts in the Presidency Towns. 14These were not to be the Company's courts but courtsof the King of England, though at that time theKing had no claim to sovereignty to any part of thecountry except the island of Bombay. These courtsconsisted of the mayor and certain aldermen and wereauthorised " to try, hear and determine all civil suits,actions and pleas between party and party " and " togive judgment and sentence according to justice andright." Appeals from the mayors' courts lay to theGovernor and Council who were made a court ofrecord. They were also constituted a court of oyerand terminer and gaol delivery to try " as in England "all offenders and offences except high treason committedwithin Madras, Calcutta, Bombay, their subordinatefactories and within a distance of ten milesof these factories.The Letters Patent 14 enabled the courts to give judgmentand sentence " according to justice and right."Englishmen who were charged to make " justice andright" the rule of decision naturally drew upon therules of the common law and the prevalent statutelaw in England in so far as they thought themapplicable in the circumstances of the country.We have seen that the charter creating the mayors'courts did not expressly state that the law to beapplied by these courts was to be the law of England.But decisions of the Privy Council have regarded14 Letters Patent of September 24, 1726, the 13th year of theBeign of George I.


The Rise of the Common Law 13the charter as clearly indicating such an intention" and it has long been generally accepted doctrinethat this charter introduced into the Presidency Townsthe law of England—both common and statute law—as it stood in 1726." "More than a century later, in the year 1863, HerMajesty's Privy Council had occasion to consider whenthe English criminal law came to be introduced inIndia and also the extent of its application. Theinteresting question which arose for consideration waswhether the English law of felo de se, and forfeitureof goods and chattels, applied to a Hindu who wasa British subject and who had committed suicide atCalcutta. It was held that that rule did not applyto the early settlement of the English in India " asthe permission to the settlers to use their own lawswithin the Factories did not extend those laws toNatives associated with them within the same limits."The court, however, observed that " the English law,civil and criminal, has been usually considered to havebeen made applicable to Natives, within the limitsof Calcutta in the year 1726, by the Charter, 13thGeo. I." Neither that nor the subsequent Chartersexpressly declare that the English law shall be soapplied, but it seems to have been held to be thenecessary consequence of the provisions contained inthem. 18 This view as to the date of the introductionof English law into India appears to have been uniformallyaccepted by courts in India.1 5 Eankin, Background to Indian Law (1946), p. 1.16 Advocate-General of Bengal v. Ranee Surnomoye Dossee (1863)9 Moore Ind.App. 387, 426-427.


14 The Common Law in IndiaHowever, the First Indian Law Commission, towhom we shall have occasion to refer later, in theirReport of 1840, called the lex loci report, took adifferent view. They maintained that neither theHindu nor the Mahomedan law was the lex loci ofBritish India, as these laws were interwoven withreligious beliefs, and that they were therefore inapplicableto persons professing a different faith. Theyreasoned that there having existed no lex loci in theBritish possessions in India the English law becameipso facto the lex loci, when any Indian territory cameunder the authority of the British Crown and that thelex loci applied to all persons who did not belong tothe Hindu or the Mahomedan faith. They combatedthe view of the courts that the English law had beenintroduced by the charters contending that the lawhaving already applied to British India as its lexloci no question of its being brought in by the chartersarose. The Commissioners put its proposals into adraft Act of Parliament, which in effect made " thesubstantive law of England the law of the land outsidethe Presidency Towns applicable to all persons exceptHindus and Mahomedans," omitting certain parts ofEnglish statute and common law. 17 These proposalswere, however, not accepted.Accepting that the Letters Patent of 1726 and thesubsequent Charters had in effect applied English lawto British India, what was to be the date for ascertainingthe English law to be applied? Was it tobe the law as it prevailed in 1726 or was it also to17 Rankin, Background to Indian Law, p. 28.


The Rise of the Common Law 15include statutes passed even after 1726 or at anyrate up to 1774 when the mayors' courts in Calcuttawere, as we shall see, substituted by the SupremeCourt? An Act of Parliament passed in 1828 hadprovided that all laws and statutes in England onJuly 25, 1888, should apply to New South Wales,Victoria and Tasmania in Australia. 18 Some of thestates constituting the United States had by theirconstitutions provided expressly that British statutespassed up to a particular date were to be receivedas a part of their common law. The English lawapplicable to India could not, however, be ascertainedwith reference to any particular date. Indeed theview was expressed by Sir James Fitzjames Stephen,the distinguished jurist, that if the matter was lookedat apart from what had been observed in some ofthe judicial decisions he would hold the view thatnot only the common and statutory law of Englandas it stood in 1726 but later English statutes had comeinto force in India by reason of the later Chartersof the mayors' courts and the Supreme Courts. 1 *In the year 1860 the Privy Council were called uponto decide the question whether the estate of a HinduBrahmin dying without heirs escheated to the Crownas the sovereign power in British India. The highestcourt for the mofussil of Madras, the Sadar DiwaniAdalat, had applied the Hindu law and had giveneffect to the text of the Hindu lawgiver that " Nevershall a King take the wealth of a priest; for the text« (1828) 9 Geo. i, c. 83.1S J. F. Stephen, The Story of Nuneomar and the Impeachment ofSir Elijah Impey, 1885, Vol. II, p. 29.


16 The Common Law in Indiaof Manu forbids it. The property of a Brahmin shallnever be taken by the King; this is fixed law." TheJudicial Committee held, however, personal law to beinapplicable observing that as soon as " there is atotal failure of heirs, then the claim to the land ceases(we apprehend) to be subject to any such personallaw. . . . The law of escheat intervenes and prevails,and is adopted generally in all the courts of thecountry alike. Private ownership not existing, theState must be owner as ultimate lord." 20It appears that with the Charter of the mayors'courts in 1726 the Company had sent to eachPresidency a book of instructions and various formsprescribing the method of proceedings in civil suits,criminal trials and probate and administration matters.Thus consistent efforts were made to keep the courts" in the straight and narrow path of English law." 2lAs observed by Sir Charles Fawcett " the insistenceon this law had of course its weak points. It wasin many respects unsuitable for the prompt andsatisfactory disposal of civil and criminal cases inwhich the Native inhabitants of the settlements wereconcerned; and the difference between the conditionsof England and those of India, and between the atmosphereof Westminster Hall and that of the courtsin India, was apt to be overlooked." 21This led eventually to the amendment in 1753 ofthe Charter of 1726. The Letters Patent of 1758re-establishing the mayors' courts expressly excepted20 Collector of Masulipatam v. Cavaly Vencata Narrainapah(1860) 8 Moore Ind.App. 500, p. 525.si Fawcett, op. cit., pp. 223-225.


The Rise of the Common Law 17from the jurisdiction of the mayor's court all suitsand actions between the Natives only and directedthat these suits and actions should be determinedamong themselves, unless both parties submitted themto the determination of the mayor's court. Thisprovision is considered by Morley 22 to be the firstreservation of their own laws and customs to Indians.The effect of the amended Letters Patent was to limitthe civil jurisdiction of the mayors' courts to suitsbetween persons who were not Indians resident in theseveral towns to which the courts' jurisdiction extended.Suits between Indians resident in those townscould be entertained by these courts only with theconsent of the parties. The criminal jurisdictionof these courts was confined to the towns wherethe courts were located and the factories or placessubordinate to them and was not to extend beyondten miles. These courts and the law administeredby them appear to have commanded the confidenceof the Indian residents who continued to resort tothese courts to much the same extent as before.Indian litigation had in fact constituted the bulk ofthe work of these courts from their start and it continuedto be so notwithstanding the requirement ofthe consent of Indians to the court exercising jurisdictionover them. 23We have so far referred to the mayors' courtsestablished in the Presidency Towns which were thecourts of the King. In the mofussil the Company'scourts gradually changed their character becomingmore and more the courts of the ruling power rather22 Digest, Vol. I, p. clxix. * 3 Fawcett, op. cit., pp. 223-225.


18 The Common Law in Indiathan the courts of the Zamindar. In 1765 the Companyobtained by the Firman of Shah Alam theMoghul the Diwani of Bengal, Bihar and Orissa.This has been regarded as the virtual acquisition bythe Company of the sovereignty of these regions. 2 *The law administered in the courts in the mofussilwas not the English law but the law of the Moghulto which the people had been accustomed.When Warren Hastings came to set up civil courtsin Bengal, Bihar and Orissa after the Company hadbecome the sovereign of these territories, he laid thefoundation of the application of their personal lawsto Hindus and Mahomedans which has continued upto today. Regulation II of 1872 provided that thesesubjects of the Crown were to be governed by theirown laws in " suits regarding inheritance, marriageand caste and other religious usages and institutions.' 9In 1781 was added the word " succession" to theword " inheritance " and it was declared that whereno specific directions were given the judges wereto act " according to justice, equity and good conscience."Thus was completed the scheme as to therule of decision which the Company's new courts wereto apply to matters coming before them. 25 It requiredthem to apply " equity and good conscience " whichin the words of Lord Hobhouse at a much later datewere " generally interpreted to mean the rules ofEnglish law if found applicable to Indian society andcircumstances." 2Sa * Cowell, Tagore Law Lectures, 1872, p. 30.25 Bankin, Background to Indian Law, p. 2.2» Waghela Rajsanji v. Shekh Masludin (1887) 14 Ina.App. 89, 96,a. 36.


The Rise of the Common Law 19Supreme CourtsThe Regulating Act of 1778 2r abolished the mayors'courts and created the Supreme Courts for the PresidencyTowns. By that Act, the Government wasempowered "from time to time to make and issuesuch rules, ordinances and regulations for the goodorder and civil government of the said UnitedCompany's Settlement at Fort William aforesaid,and other places and factories subordinate or to besubordinate thereto, as shall be deemed just andreasonable (such rules, ordinances and regulations notbeing repugnant to the laws of the nation), and toset, impose, inflict and levy reasonable fines and forfeiturefor the breach and non-observance of suchrules, ordinances and regulations." Thus the authoritieswho were to make laws for the areas over whichthe Company exercised sovereignty were given thewidest discretion to enact regulations which theydeemed just and reasonable, the only reservation beingthat they were not to be repugnant to the laws ofEngland. It is not surprising in the circumstancesthat the laws which came to be enacted were on themodel of English laws with variations made necessaryby Indian conditions.In 1774 came the establishment of the first of theSupreme Courts at Calcutta envisaged by the Act of1778. It was to be a court of record and was tohave such jurisdiction and authority as the Court ofKing's Bench had in England by the common lawof England (Clause IV). It was also to be a court ofV 13 Geo. 3, c. 68, ss. 13 and 36.


20 The Common Law in Indiaequity (Clause XVIII). It was also to be a courtof oyer and terminer, and gaol delivery at Calcuttaand was to inquire into offences with the help ofjuries (Clause XIX). Like the Court of King's Benchin England it was authorised to issue writs of mandamus,certiorari, procedendo or error (Clause XXI).It was to exercise ecclesiastical jurisdiction in Bengal,Bihar and Orissa such as was exercised in the dioceseof London (Clause XXII). It had authority to appointguardians of infants and of insane persons andof their estates (Clause XXV). It was also to be aCourt of Admiralty. The jurisdiction of the courtextended to all British subjects residing in the wholeof Bengal, Bihar and Orissa. It also extended to allpersons employed in the service of the Company andin certain cases over other Indian inhabitants also.The court was modelled entirely on the Englishpattern with jurisdiction over a large population inthe Presidency Towns and other areas.The conflicts and contrasts resulting from differingsystem of law being worked in the Presidency Townand the mofussil were thus described by Sir ElijahImpey, the Chief Justice of the court:"The state of the inhabitants of Calcutta was, in everyparticular, different They were, as compared to the inhabitantsof the provinces, a very inconsiderable number, inhabitinga narrow district, and that district an English town andsettlement; not governed by their own laws, but by those ofEngland, long since there established; where there were nocourts of Criminal Justic, but those of the King of England,which administered his laws to the extent and in the formand manner, in which they were administered in England.The inhabitants had resorted to the English flag, and enjoyedthe protection of the English law; they chose those laws in


The Rise of the Common Law 21preference to their own—they were become accustomed tothem. The town was part of the dominion of the Crown byunequivocal right—originally by cession, founded on compact,afterwards by capture and conquest. Their submission wasvoluntary and if they disliked the laws, they had only tocross a ditch, and w'ere no longer subject to them. The stateof an inhabitant in the provinces at large, was that of a maninhabiting his own country, subject to its own laws. The stateof an Hindoo, a native of the provinces, inhabiting Calcutta,which in effect was an English town to all intents and purposes,did not differ from that of any other foreigner from whatsoevercountry he might have migrated; he partook of the protectionof the laws, and in return owed them obedience." 28Apart from the conflicting systems of law the widejurisdiction of the Supreme Court and the absence ofany delimitation of that jurisdiction in reference tothe Company's courts in the mofussil created seriousconflicts between the Company's government and thenewly established court. This led to the enactmentof the Act of Settlement of 1781 (21 Geo, 3, c. 17).The effect of this statute was to abridge the powersand jurisdiction of the Supreme Court. By thatstatute and by a later statute of 1797 (37 Geo. 8,c. 142) the Supreme Court in Calcutta and therecorders' courts which were then functioning inMadras and Bombay were empowered to determineall actions and suits against the inhabitants of thesaid towns, provided that their succession and inheritanceto lands, rents and goods, and all matters ofcontract and dealing between party and party, shouldbe determined in the case of Mahomedans by thelaws and usages of Mahomedans and in the case ofssQuoted by E. C. Ormond, The Rules of the High Court ofJudicature at Fort William, Bengal (on the Original Side)(4th ed., 1941), p. 87.


22 The Common Law in IndiaHindus by the laws and usages of Hindus and whereonly one of the parties should be a Mahomedan orHindu by the laws and usages of the defendant.The effect of these statutes was to take away theapplication of the English law to Hindus and Mahomedansin the matter of contracts and other mattersenumerated in the statutes and to provide that theywere to be governed in these matters by their ownlaws and usages.The establishment of the Supreme Courts at Madrasand Bombay replacing the recorders' courts whichhad been created there in 1797 took place in the years1801 and 1823.We may now turn to the administration of justiceand law in the mofussil. The administration of civiljustice outside the Presidency Towns was associatedwith the management of revenue and the Companytook a considerable time to evolve a regular systemof administration of justice, after it had by the grantof Diwani of Bengal, Bihar and Orissa become virtuallythe sovereign of these territories. It establishedtwo superior courts: the Sadar Diwani Adalat, a finalcourt of appeal in civil matters, and the SadarNizamat Adalat, the final court of criminal appealwhich was empowered to revise arid confirm sentencesawarded by the criminal courts. Subordinate to thesesuperior courts were the district Diwani and FoujdariAdalats. The Act of Settlement of 1781 for the firsttime recognised provincial courts as independent ofthe Supreme Court in the Presidency Towns. TheGovernor-General in Council was made Supreme Courtof Appeal in civil matters from the mofussil and was


The Rise of the Common Law 28made a court of record. A Regulation made in 1781provided that in " all cases within the jurisdiction ofthe Mofussil Diwani Adalats for which no specificdirections are hereby given the respective judgesthereof do act according to justice, equity and goodconscience." A similar provision was also made inregard to the Sadar Diwani Adalat. What we haveseen so far relates to the mofussil of Bengal. Butthe same system of administration of justice andsimilar regulations as to the laws which were to beapplicable were soon extended to other parts of thecountry like Banaras, Oudh and Allahabad and eventuallyto the mofussil areas of Madras and Bombay.This rule of decision in accordance with justice,equity and good conscience in the absence of specificdirections meant, in substance and in the circumstancesthe rules of English law wherever applicable.In the words of Sir Henry Maine, 29 India was then"regard being had to its moral and material needs,a country singularly empty of law." The inevitableresult was that the courts of justice had to legislate.The " vast gaps and interspaces in the substantivelaw " were filled by the principles of English commonand statute law. The wide door of "justice, equityand good conscience " made it easy for these principlesto become, through the decisions of the courts, thegoverning law of the country.In 1862, the Privy Council reversing the SadarDiwani Adalat applied the principles of English lawregarding equitable mortgage by deposit of title deeds,29 Sir M. E. Grant Duff, Sir Henry Maine, p. 51.


24 The Common Law in Indiato the Presidency of Madras. Speaking of the Company'scourts in the mofussil of Madras Lord Kingsdownsaid that " There is no prescribed general lawto which their decisions must conform. They aredirected to proceed generally, according to justice,equity and good conscience." 30 In 1865 Sir RichardCouch regarded that decision as "an authority ofthe highest court of appeal that although the Englishlaw is not obligatory upon the courts in the mofussil,they ought in proceeding according to " justice, equityand good conscience " to be governed by the principlesof the English law applicable to a similar state ofcircumstances. 31 In 1887 Lord Hobhouse expressedthe view that " justice, equity and good conscience "could be " interpreted to mean the rules of Englishlaw if found applicable to Indian society and circumstances."32As in the case of civil courts there was also ahierarchy of criminal courts in the mofussil. Controlover the district criminal courts was vested in theSadar Nizamat Adalat which was called the SadarFoujdari Adalat in Madras and Bombay. The criminalcourts in the mofussil were guided principally by theMahomedan criminal law which remained in force inBengal and Madras till the enactment of the IndianPenal Code of 1860. But wherever its rules werefound repugnant to British notions of crime andpunishment they were from time to time modifiedby regulations made by the local governments.30 Varden Seth Sam v. Luckpathy Boyjee Lallah (1863) 9 MooreInd.App. 303, 320.31Dada v. Babaji (1864) 2 Bom.H.C. 36, pp. 37 and 38.3 2 Waghela Rajsanji v. Shekh Masludin (1887) 14 Ind.App. 89, 96.


The Rise of the Common Law 25In the Presidency of Bombay, however, Mahomedancriminal law generally did not prevail, Hindus beingtried by their own criminal law and Parsees andChristians by English law. 33 In this Presidency alsoregulations were passed from time to time definingoffences and specifying punishments till the cominginto force of the Indian Penal Code of 1860.Regulation III of 1793 heralded the gradual advancein India of the rule of law in the closing years ofthe eighteenth century. It made executive officers ofthe Government who transgressed the law in the dischargeof their official duties amenable to the jurisdictionof the courts. This was soon followed byanother significant change. The Sadar Diwani andNizamat Adalats, the principal civil and criminalcourts in the mofussil, which in Bengal were constitutedof the Governor and the members of hisCouncil, were by Regulation II of 1801 directed tobe composed of a Chief Judge and puisne judges.This measure made the highest judiciary independentof the legislative an


26 The Common Law in Indiahad subsequent to that date enacted Acts which wereextended to parts of India. The Governor-Generalin Council had also passed regulations commencingwith the revised Code of 1793 which was in force onlyin the Presidency of Bengal. Similarly, there werethe regulations of the Madras Council enacted over along period which were in force in the Presidency ofMadras. Finally, there were for the Presidency ofBombay the regulations of the Bombay Code startingfrom 1827. 34This sad and perplexing state of affairs wasportrayed in graphic language by the judges of theSupreme Court of Calcutta. They observed:" In this state of circumstances no one can pronounce anopinion or form a judgment, however sound, upon any disputedright of persons respecting which doubt and confusionmay not be raised by those who may choose to call it inquestion, for very few of the public or persons in office athome, not even the law officers, can be expected to have socomprehensive and clear a view of the Indian system as toknow readily and familiarly the bearings of each part of iton the rest. There are English Acts of Parliament speciallyprovided for India, and others of whfth it is doubtful whetherthey apply to India wholly, or in part, or not at all. Thereis the English Common Law and Constitution, of which theapplication is in many respects still more obscure and perplexed;Mahommedan Law and Usage; Hindu Law, Usage,and Scripture; Charters and Letters Patent of the Crown,regulations of the Government, some made declaredly underActs of Parliament particularly authorising them, and otherswhich are founded, as some say, on the general power ofthe Government entrusted to the Company by Parliament,and as others assert on their rights as successors of the OldNative Government; some regulations require registry in theSupreme Court, others do not; some have effect generallythroughout India, others are peculiar to one presidency or3 * Cowell, op. cit., pp. 95-96.


The Rise of the Common Law 27one town. There are commissions of the Governments, andcircular orders from the Nizamut Adalut, and from the DewaniAdalat, treaties of the Crown; treaties of the India Government,besides inferences drawn at pleasure from the applicationof the droit public, and the law of nations of Europe, to astate of circumstances which will justify almost any constructionof it, or qualification of its force." 35This medley of laws " widely differing from eachother but coexisting and coequal," led to the enactmentof the Charter Act of 1833 which provided forthe appointment of the first Law Commission ofIndia. Macaulay who spoke on the second readingof the Bill in Parliament said: " I believe that nocountry ever stood so much in need of a code of lawas India, and I believe also that there never was acountry in which the want might be so easily supplied.The principle is simply this—Uniformity when youcan have it; diversity when you must have it; but,in all cases certainty." 36Law CommissionsThe first Law Commission presided over by Macaulayprepared a draft of the Indian Penal Code of1860, perhaps the most outstanding of the IndianCodes. It is based on the principles of the criminallaw of England and has with little alteration beenadministered with satisfaction for nearly a century.The Charter Act of 1853 provided for the appointmentof the second Law Commission whose activitiesled eventually to the passing of the first Indian Codeof Civil Procedure in 1859 and the first Limitation35 Cited by C. Grant before Committee on the Charter Act,Hansard, 3rd series, Vol. 18, p. 729.3 « Cited by Whitley Stokes, The Anglo-Indian Codes, Vol. I, p. x.


28 The Common Law in IndiaAct of India in the same year. In 1860 and 1861came the enactment of the Indian Penal Code andthe Code of Criminal Procedure. This Commissionmade proposals for the amalgamation of the SadarAdalats, the principal courts of appeal for the mofussil,and the Supreme Courts, the principal courtsin the Presidency Towns, which were eventuallyaccepted and led to the establishment of a High Courtfor each presidency as the highest court for themofussil as well as the Presidency Town. The appointmentof the third Law Commission in 1861 led tothe enactment of a general law of succession, to thecodification of the law of contract and evidence in1872 and finally in 1877 to a law of specific reliefembodying the equitable principles on which thecourts of equity in England had dealt with the subject.The appointment of the fourth Law Commission in1879 resulted in the enactment of the NegotiableInstruments Act in 1881 and of the Trusts Act, theTransfer of Property Act and the Easements Act in1882. The labour of these Commissions, consistingof eminent English jurists, spread over half a century,gave to India a system of codes dealing with importantparts of substantive and procedural civil and criminallaw.It may well be asked how there could be room leftfor the application of the principles of English lawin India once a large part of the law had beencodified. The codified law itself furnishes the answer.In the codes are incorporated principles of Englishlaw with variations needed by Indian conditions.Indeed the codes explain and clarify the meaning of


The Rise of the Common Law 29the rules laid down by them by illustrations whichare based on English decisions.The process of the expansion of the common lawinto India was thus described by Sir Frederick Pollockin 1895:" In British India the general principles of our law, by aprocess which we may summarily describe as judicial applicationconfirmed and extended by legislation, have in the courseof this century, but much more rapidly within the last generation,covered the whole field of criminal law, civil wrongs,contract, evidence, procedure in the higher if not in the lowercourts, and a good deal of the law of property. ... It is nottoo much to say that a modified English law is thus becomingthe general law of British India. . . . The Indian Penal Code,which is English criminal law simplified and set in order,has worked for more than a generation, among people ofevery degree of civilization, with but little occasion for amendment.In matters of business and commerce English law hasnot only established itself but has been ratified by deliberatelegislation, subject to the reform of some few anomalies whichwe might well have reformed at home ere now, and to theabrogation of some few rules that had ceased to be of muchimportance at home, and were deemed unsuitable for Indianconditions. More than this, principles of equitable jurisprudencewhich we seldom have occasion to remember inmodern English practice have been successfully revived inIndian jurisdictions." 37The Commissions we have referred to and the codescompiled by them became powerful instruments whichinjected English common and statute law and equitableprinciples into the expanding structure of Indianjurisprudence.High CourtsThis brings us broadly to the end of the periodwhich marks the role of the Supreme Courts in the37 The Expansion of the Common Law (1904), pp. 16, 17.


80 The Common Law in IndiaPresidency Towns and the Sadar Adalats in themofussil. The final phase during the British regimecommenced with the High Courts Act of 1861 (24 &25 Viet. c. 104). Letters Patent were issued in 1862establishing High Courts at Calcutta, Madras andBombay which were replaced by the amended LettersPatent of 1865. The Letters Patent of 1862 broughtabout the long contemplated fusion of the Supremeand Sadar courts in each Province. The High Courtof Judicature in each Province was given power andauthority as an original and appellate court overmatters arising in the Presidency Towns and as anappellate court over matters arising in the mofussil.A single superior tribunal was thus placed at the headof the judicial administration of the Province. Thejudges who had constituted the Supreme Courts wereEnglish lawyers whereas those presiding over theSadar courts were covenanted civil servants. In thejudiciary of the newly constituted High Courts boththese elements were combined.The substantive civil law to be administered by theHigh Courts was to be the same as that administeredby the courts to which it succeeded. Thus the lawto be administered by it in respect of the PresidencyTowns continued to be different from that to beapplied to the mofussil. The law and equity whichthe High Courts enforced in the Presidency Townswere those which were being applied by the SupremeCourt of which it was the successor but in its appellatejurisdiction its rule of decision was justice, equityand good conscience which had governed the Sadarcourt.


The Rise of the Common Law 81Later High Courts were established in other Provincesof India. Till recently, however, a distinctionexisted between the powers of the older High Courts inthe three Presidency Towns and the newly constitutedHigh Courts. The older courts had inherited fromthe Supreme Courts the common law powers exercisedby the King's Bench Division which included a powerto issue a writ of certiorari and other writs withinthe limits of the Presidency Towns. The newer HighCourts were not, however, endowed with this power.The enactment of the Indian Councils Act of 1861and the establishment of High Courts in variousProvinces led to a general reconstitution of almostall civil and criminal courts throughout the country.The rule requiring the application in the absence ofexpress provision of the rules of justice, equity andgood conscience which meant largely an applicationof the principles of common and English statutorylaw was embodied in the laws under which the reorganisedcivil and criminal courts were constituted.The High Courts and the subordinate courts constitutedin this manner made a unified system ofadministration of justice for each of the Provincestill the advent of the Indian Constitution in 1950.As the Company's territories became gradually enlargedby settlement and conquest the Privy Council,as the highest court of appeal from the decisions ofthe Indian courts, became a growing influence in theapplication of the basic principles of English jurisprudenceas the rules of decision all over the country.It was natural, perhaps inevitable, that the eminentEnglish judges, who presided over this tribunal should


82 The Common Law in Indiaattempt to solve the problems that came before themwherever Indian regulations or statutes contained noprovisions applicable to them by drawing upon thelearning on which they had been brought up and therules and maxims to which they had been accustomedfor a lifetime. This explains why from the earliesttimes the decisions of this tribunal in appeals fromIndia have resulted in a steady and continuousgrafting of the principles of common law and equityinto the body of Indian jurisprudence.The King's Privy Council is said to have drawninto its own hands for the first time under the Tudorprinces the right of the exclusive adjudication ofappeals from the foreign and colonial dependencies ofthe Crown and from the Channel Islands. It is saidthat appeals were first granted from Jersey in HenryVIII's reign; and the records of the Privy Councilin 1572 present the first instance of the exercise ofthis jurisdiction. The extent and importance of thejurisdiction retained by the Privy Council were pointedout by Lord Brougham in his celebrated speech onlaw reform in 1828. " They determine not only uponquestions of colonial law in plantation cases, but alsosit as Judges, in the last resort, of all prize causes.And they hear and decide upon all our plantationappeals. They are thus made the supreme Judges,in the last resort, over every one of our foreignsettlements, whether situated in those immense territorieswhich you possess in the East, where you anda trading company rule together over not less than70,000,000 of subjects." 38»» H. Cowell, Tagore Law Lectures, 1872, pp. 206-216.


The Rise of the Common Law 33The first occasion upon which a right of appeal wasgranted by Royal Charter to the Privy Council fromthe judgments of the courts in India was in 1726.We have already referred to the Letters Patent of1726 which constituted the mayors' courts in the threePresidency Towns. The Charter establishing thesecourts gave a right of appeal from them firstto the Governors in Council and thereafter to thePrivy Council in disputes of a specified value. Laterthe Act of Parliament and the Charter which createdthe Supreme Court of Bengal conferred a similar rightof appeal to the sovereign in council. Rights of appealto the Privy Council were also given from decisionsof the recorders' courts and the Supreme Courts atMadras and Bombay. When in 1781 the Governor-General in Council or a committee was constitutedthe Sadar Diwani Adalat and a court of record, asimilar right to appeal to the Privy Council from thedecision of this court was given in matters of a specifiedvalue. Right of appeal from the Sadar courtsof Madras and Bombay to the Privy Council werealso given. With the amalgamation of the Sadarcourts and the Supreme Courts into the High Courtsin 1862 a right of appeal was given to the sovereignin council from the decisions of the High Courts.We shall have occasion to see how this highestcourt of appeal composed of distinguished judgespowerfully moulded Indian law and even the methodof administration of justice in India importing intoIndian jurisprudence notions which they had imbibedfrom their training in English law.


84 The Common Law in IndiaIII.SOME FUNDAMENTAL PRINCIPLES ANDTRADITIONS OF THE COMMON LAWThe Lord Chancellor of England has said that " Mostof the fundamental principles of our constitutionallaw that maintain the freedom of the subject and limitthe power of servants of the Crown are to be foundin the Common Law alone." 39 It is said that theadjective " common " came into use to describe thelaw common to the whole of England, the law bywhich " proceedings in the King's courts of justiceare guided and directed." It was to be expected thatthis system " which consisted in applying to newcombinations of circumstances those rules which wederive from legal principles and judicial precedents "should in course of time come to embrace all thebasic principles of the English Constitution. Nor wasits influence restricted to the sphere of constitutionallaw. Professor Dicey has said that " Nine-tenths ofthe law of contract and nearly the whole of the lawof torts (which are civil wrongs) are not to be discoveredin any volume of the statutes." Indianconstitutional law is now embodied in the IndianConstitution of 1950. The Indian law of contract isto be found in the Indian Contract Act of 1872 andsome other statutes. The Indian law of torts stillconsists of the rules of the JEnglish common lawapplied by judicial decisions to India with somevariations. But whether it be the law of the Constitutionnow enshrined in the Indian Constitution orthe law of contract enacted in the Contract Act of39 " Migration of the Common Law " (1960) 76 L.Q.E. p. 42.


The Rise of the Common Law 351872 or the still uncodified law of torts applied inIndia, not only do they all bear the unmistakableimpress of the English common law but the fundamentalideas on which they rest are by and largethe principles of the English common law.The most striking feature of the common law is itspublic law. "It is primarily a method of administeringjustice." We shall examine the extent towhich some of these features have infiltrated intoand now govern the Indian system.The jury systemThe jury system under which no man can be convictedof serious offences unless he has been foundguilty by his fellow citizens, considered to be themost effective safeguard against exercise of arbitrarypower, has played a great part in preserving thefreedom of the citizen in England. In civil trialsthe jury represents " the reasonable man" of thelaw and its purpose perhaps was to make judges andlawyers alive to the notions and standards of theordinary man so that they may be in touch withthose for whose service they existed. Trial by jurywas the invariable practice in the common law courtsin civil matters until 1854, and thereafter there hasbeen a decline in its popularity.The system of trial of criminal offences by jurystarted early in India. We have seen how as earlyas 1672 the offences of mutiny and witchcraft weretried in Bombay with the help of juries. Except,however, in the very early years and in some places


36 The Common Law in Indiathe system of trial of civil causes by juries does notappear to have prevailed in India.With the enactment of the Criminal Procedure Codestatutory recognition was given to trial by jury ofcriminal offences in the three Presidency Towns. Thelaw provided that all trials before a High Court wereto be by jury. It also provided that even in casesarising outside the Presidency Towns transferred fortrial to the High Courts the High Court may directa trial by jury. Trial by jury was obligatory onlyin the trial of criminal cases in the exercise of theordinary original criminal jurisdiction of these courts.Outside the three Presidency Towns the law providedthat all trials before a court of session which dealswith criminal offences shall be either by jury or bythe judge himself, it being left to the particulargovernment in each Province to decide what criminaloffences if any should be tried by jury in the sessionscourts. The actual practice in different Provincesvaried a great deal. In certain provinces the systemof trial by jury has never been in vogue while othershave adopted the system partially and in certain areas.A survey of the system as it prevails in the countrytoday was recently made by the Law Commission ofIndia appointed in 1955. It observed that the systemhad not been adopted over a large part of the country,that its application even in areas where it had beenadopted was restricted to certain classes of offencesand that some parts of the country which had adoptedit had decided to discontinue it. The Commissionexpressed its opinion that " The system has neverbecome a recognised feature of the administration of


The Rise of the Common Law 37criminal justice in the country." It expressed theview that " trial by jury in India to the extent itexists today is but a transplantation of a practiceprevailing in England which has failed to grow andtake root in this country." They recommended itsabolition.In the long history of the development of thecommon law in India we find instances of some of itspractices having failed to take root in the countryowing to the difference between English and Indianconditions. Perhaps the success of trial by jury inEngland is due essentially to its being " an Englishinstitution of antiquity peculiarly suited to the geniusof the English people." The jury system as practisedin England was, it is said, tried in France for morethan a century. It is said that " It does not workin the Latin countries with their mobile temperament,easily moved to pity or hate." 40 It is not surprising,therefore, that this growth peculiar to the commonlaw and the English temperament has failed toacclimatise and grow in India.Habeas corpusThe writ of habeas corpus which was in its inceptiona purely procedural mesne process graduallydeveloped in England into a constitutional remedyfurnishing a most powerful safeguard for individualfreedom. The right to freedom was said to be securedby the famous provision in the Magna Carta that" No free man may be taken or imprisoned or be40 Sir Alfred Denning, Freedom under the Law, Hamlyn Lectures,p. 59.


88 The Common Law in Indiaoutlawed or exiled or in any manner destroyed butby the lawful judgment of his peers or by the lawof the land." 4I The writ has been described as " thekey that unlocks the door to freedom." It has itsorigin in the common law though its effectiveness hasbeen increased by statutory provisions. It will beinteresting to follow the development of this characteristicfeature of the common law in India.The jurisdiction to issue this writ appears to havebeen first conferred on the courts in India when theSupreme Courts were established by the RegulatingAct of 1773. Clause 4 of the Charter of the SupremeCourt at Fort William in Bengal gave such jurisdictionto the justices as the Court of King's Bench maylawfully exercise in England by the common law whichincluded a power to issue this writ.Ameer Khan, a Mahomedan subject of the Crown,having been arrested in Calcutta and taken into themofussil, a question arose in 1870 in the High Courtof Bengal whether the power of the Supreme Courtto issue writs of habeas corpus was confined to thePresidency Towns or extended to the mofussil. Thematter depended on a construction of the Charter of1774. Justice Norman asserted that " The mostprecious of all rights which a British subject possesses,is the right of personal liberty, and if the Charterhad contained no words providing any machinery bywhich that right could be vindicated, it could hardlyhave been said to provide for the due administrationof justice, in such manner as the condition of theCompany's Presidency at Fort William in Bengal« Greene v. Secretary of State [1942] A.C. 254, at 301.


The Rise of the Common Law 89required." i2 The court decided that " The powerof the late Supreme Court to issue writs of habeascorpus to persons in the mofussil has been assertedfrom the time of the promulgation of the Charter tothe present day, and is admitted in the case of ReThe Bombay Justices." The decision referred to bythe court was that of the Judicial Committee of thePrivy Council. The correctness of the view that theSupreme Court had the power to issue the writ outsidethe Presidency Towns was questioned in later casesand was finally set at rest by a decision of the PrivyCouncil as late as the year 1943 that the power ofthe Supreme Court was restricted to persons withinthe Presidency Towns and extended only to theBritish subjects in the mofussil. 43Soon after the decision of Justice Norman camethe enactment of the Criminal Procedure Code of1872 which conferred the right to issue " orders inthe nature of habeas corpus " in the case of detentionof European British subjects both within and outsidethe Presidency Towns. The Code, however, clearlyprovided that the High Court was not otherwise tohave the power to issue the writ of habeas corpusoutside the Presidency Towns. Successive Codes madesome alterations in this provision and finally came theCode of 1898 which by the enactment of section 491empowered the High Courts at Calcutta, Madras andBombay to issue " directions of the nature of a habeascorpus." As the enactment stood it enabled only« In the matter of Ameer Khan (1870) 6 Bengal L.E. 392, 444.« Ryots of Garabandho v. Zamindar of Parlakimedi (1943) 70Ind.App. 129.


40 The Common Law in Indiathese three High Courts to issue what may be calledthe statutory writ; and even these courts could notbe used in reference to Indian subjects outside thePresidency Towns.So conscious were the Bar and judiciary of theimportance of this aid to freedom that notwithstandingthe enactment of this statutory provision repeatedattempts were made to rely on the jurisdiction ofthe Supreme Court inherited by the High Courts undertheir charters. It was contended that the Indianlegislature was not competent by enacting section 491of the Code to take away the High Court's jurisdictionunder its charter to issue the writ outside the limitsof the Presidency Towns. In 1922 a Full Bench ofthe Madras High Court was called upon to considerwhether it could issue a writ outside the limits ofthe Presidency Town of Madras for the productionof persons detained outside Madras. Relying on thepowers of the Supreme Courts which had been inheritedby the High Courts and the decision of JusticeNorman in Ameer Khan's case, the court held thatnotwithstanding the limitation on its powers put bythe Indian legislature by section 491, it was entitledto issue the writ outside Madras. The Chief Justiceobserved: " The law can be stated to be that in everypart of the British Empire every person has a rightto be protected from illegal imprisonment by the issueof the prerogative writ of habeas corpus. The King'sBench in England exercised the power of issuing suchwrits throughout the British Empire until the statuteknown as the Habeas Corpus Act (25 & 26 Viet,c. 20) was passed. By that Act the powers of the


The Rise of the Common Law 41King's Bench are limited to England and such placesoutside England which have no local court competentto exercise the power. It follows that these petitionersmust have a right to such a writ, and it is a matterof absolute right, either from a court in this country,if there be one competent to grant it, or fromthe Court of King's Bench sitting in London." 44That view was, however, subsequently held to beerroneous.Eventually there came legislation in 1923 by whichin substance the benefit of the provisions of section491 which enabled directions to be given in the natureof habeas corpus were extended to the whole of thecountry and the power to issue the said directions wasconferred on the superior courts in the various Provinces.Since 1923 this statutory writ in the natureof habeas corpus has been available to Indians livingin the Presidency Towns as well as the mofussil.The Indian Constitution of 1950 contains a Bill ofRights which provides that " no person shall bedeprived of his personal liberty except according toprocedure established by law." The Constitution alsoempowers the superior courts to issue " directions,orders or writs including writs in the nature of habeascorpus." 45This famous common law writ which obtained afoothold in Indian jurisprudence in 1773 has aftersome vicissitudes enshrined itself in the Constitutionof Republican India.«* Be Govinda Nair (1922) I.L.B. 45 Mad. 922, 925-926.45 Indian Constitution, Arts. 21, 32 and 226.H.L.—12 4


42 The Common Law in IndiaThe independence of the judiciaryAungier, the Governor, inaugurating the Court ofJudicature in Bombay in 1672, said: "Laws thoughin themselves never so wise and pious are but a deadletter and of little force except there be a due andimpartiall execution of them." He admonished thejudges that " You must doe them all Justice, eventhe meanest person of the Island." 46 That was theenunciation of a principle which has been the bulwarkof the common law, the independence and impartialityof the judiciary.In the early days of the Company's settlements thejudges were civil servants of the Crown, and in theGovernor and Council were combined the executive,legislative and judicial functions. With the comingof the King's Court the judges gradually became independentof the executive, being appointed by theCrown. In the early days of the Supreme Court thejudiciary in the Presidency Towns was put even overthe local legislature which then consisted of theGovernor and his Council. The court was investedwith the power of registering the regulations madeby the Governor and his Council and it was onlythe regulations registered by the court which had theeffect of laws enforceable in the courts.The Cossijurah case, an account of which has beengiven by Sir James FitzJames Stephen, 47 and theechoes of which were heard in Parliament towardsthe end of the eighteenth century, tells us of the46 Fawcett, op. cit., pp. 52-55.47 J. F. Stephen, The Story of Nuncomar and the Impeachmentof Elijah Impey, Vol. 2, p. 209.


The Rise of the Common Law 48steps taken by Sir Elijah Impey, the Chief Justiceof the Supreme Court, to enforce the court's process.The Zemindar of Cossijurah was sued in the SupremeCourt at Calcutta for a large sum of money said tohave been lent to him. Acting upon an order statedto have been issued by the Company (the executive)that landholders in the mofussil were not subject tothe jurisdiction of that court except by their consent,the Zemindar took no notice of the process of thecourt. The Zemindar's " people beat off the sheriffand his officers, when they attempted to take himunder a capias. Hereupon a writ was issued tosequestrate his property to compel appearance, andthe sheriff collected a force of fifty or sixty sailorsand others who marched armed from Calcutta toCossijurah in order to effect their purpose. . . • TheGovernor-General in Council ordered Colonel Ahmmuty,who was in command of troops at Midnapore,to march a force of sepoys against the sheriff's partyand arrest them. He did so. Attempts were madeto attach the officer who commanded the troops asfor a contempt, but the execution of this process wasalso prevented by military force. Finally actionswere brought against Hastings (the Governor-General)and the other members of Council individually by theplaintiff in the action against the Rajah of Cossijurah."The merits or the demerits of Impey's part in thisencounter between the judiciary and the executiveprovoked an acute controversy at the time and laterin Parliament. It certainly was reminiscent of thestruggle between the Crown and the courts in England,and puts one in mind of the recent event of the


44 The Common Law in India>dispatch of Federal troops to Little Rock in supportof the orders of the Federal Court in the U.S.A.Historians may differ as to the correctness or wisdomof Impey's action, but his emphatic assertion of theindependence of the judicial process and its inviolabilityby the executive is indisputable.The history of the administration of justice inIndia in the early days contains many accounts ofsuccessful resistance offered by judges to pressure fromthose in charge of the administration. Indeed, rigidaloofness from the executive was for a long time theattitude of the superior judiciary in India.It is said that the independence of the judiciary inEngland has been due in part to the practice ofchoosing judges from the leaders of the Bar insteadof from civil servants, which prevailed since the daysof Edward I in the thirteenth century. 48 In India,mainly owing to the fusion of the two parallel systemsof administration of justice in the Presidency Townsand the mofussil by the establishment of the HighCourts in 1862, there came into existence a mixedcadre of judges, some being recruits from the Barand others members of the judicial branch of the civilservice. Till very recently it was felt that judgesdrawn from the civil service did not show the independencefound in judges recruited from the Bar.The High Court Charters restricted the number ofjudges who could be recruited from the judicial serviceand it was till recently the invariable rule to havea member of the Bar at the head of the High Courts48 Professor A. L. G-oodhart " What is the Common Law " (1960)76 L.Q.E. p. 47.


The Rise of the Common Law 45as its Chief Justice. So powerful, however, was thetradition of independence inherited by the professionof the law, which in early days consisted mainly ofmembers of the English Bar, that the superior judiciarymaintained its complete independence from the executiveeven though a part of it was recruited fromthe civil service. Nothing that the British did inIndia is cherished more than the system of administrationof justice under an independent judiciary whichthey erected. We shall have occasion to show laterhow these English traditions now find a place in theConstitution of India which has created an integratedand autonomous judicial system and provided avirtually irremovable judiciary.The adversary system of trialThis established feature of the common law soontook root in India. Let us not forget that amongthe persons who participated in the ceremonial of theopening of the first Court of Judicature at Bombaywere " The fower Atturneys or Common pleaders onfoot." The system was not known in India. In theHindu or the Mahomedan system the judge took anactive role in eliciting the truth as in the Continentalsystems. The theory of the common law " that justicecan best be achieved by giving each party the fullestopportunity to present his own case " was broughtinto vogue in India by the English. The Civil andCriminal Procedure Codes of India and the law ofevidence enacted in the latter half of the nineteenthcentury are in conformity with this common law


46 The Common Law in Indiadoctrine. It is for the two adversaries to questiontheir witnesses, the opposing side having a right totest their testimony by questioning them. Throughoutthe trial the judge is supposed to perform the dutyof impartially holding the balance between the twoadversaries and ensuring that the proper procedureis being followed. His eventual duty is to render hisdecision at the end of the trial.Equally rigorous is the application in India of therule of common law which is said to put justice beforetruth. The decision, whether in a civil or a criminaltrial, has to be rendered solely on the evidence putforward by the tribunal. It is not open to the judgeor the jury to consider matters extraneous to theevidence or let their personal knowledge come intoplay. In a criminal trial the question always is: Hasthe prosecution proved its case on the evidence recordedby the tribunal? The presumption of theinnocence of the accused, a memorable doctrine of thecommon law, has been accepted by the Indian courtsto its fullest extent. In a criminal trial the personcharged is not obliged to open his mouth or subjecthimself to questions by the prosecution. The burdenof establishing him to be guilty rests all the time onthe prosecutor and never shifts to the person charged.Similarly, the question in civil matters is whether theperson bringing the claim before the tribunal hasestablished it by legal evidence. The Indian judgeshave repeatedly insisted upon the observance of theserules, even though on occasions justice administeredin accordance with law may tend to obscure thetruth.


The Rise of the Common Law 47The system of precedentsThe common law has been described as " a systemwhich consisted in applying to new combinations ofcircumstances those rules which we derived from legalprinciples and judicial precedents." 49 The system ofprecedents has been a powerful source of the developmentof the common law in England. The LordChancellor's Committee on Law Reporting stated" that the law of this country consists substantiallyof legislative enactments and judicial decisions. ..."It is " today the accepted duty of a judge, whateverhis own opinion may be, to follow the decision ofany court recognised as competent to bind him. Itis his duty to administer the law which that courthas declared." 50The position in India is not different.The Englishmen who presided as judges and practisedas barristers in the early days of the courtsof the Company and the Crown in India soon startedfollowing the English tradition and began to rely onprecedents. As English law was freely drawn uponin reaching decisions, it became customary for thesecourts to rely on the decisions of the English courts.When the Sadar courts, the courts functioning forthe mofussil, started delivering their judgments inEnglish, they began to issue as early as 1845 copiesof their judgments so that they might be useful asprecedents both to the public and the profession.These naturally were only some of the judgmentsdelivered by these courts. These came to be known«» Lord Wensleydale, quoted by Lord Kilmuir in " The Migrationof the Common Law " (I960) 76 L.Q.E. p. 42. «° Para. 4.


48 The Common Law in Indiaas Bengal Sadar Dewani Reports and are perhaps theoldest law reports known in India. Later, barristersattached to the Sadar courts and some of the judgesof these courts published reports of the decisions ofthe courts. The reports of Belasis, Borrodail, Marshalland Hyde may be mentioned as some of thereports which owed their origin to the initiative ofindividual judges and counsel. Law reports publishedin a semi-official manner date from the establishmentof the High Courts in the three Presidency Towns.Numerous series of private reports also soon appearedon the scene.Soon after the establishment of the High CourtsSir James Stephen, the then Law Member, recordeda minute to the effect that reporting should beregarded as a branch of legislation, and accepted theprinciple that it was hardly a less important dutyof the government to publish that part of the lawwhich is enunciated by its tribunals in their judgmentsthan to promulgate its legislation.The doctrine of precedents has been decisivelyestablished in Indian jurisprudence. Judgments deliveredby the superior courts are regarded as mucha part of the law of the country as legislative enactments.Indeed it has been laid down that even " anunreported case may be cited as an authority if theactual decision can be shown from the original sources.... It is the decision which establishes the precedentand the report but serves as evidence of it." 51 The51 Vinayak Shamrao v. Moreshwar, A.I.E. [1944] Nagpur 44,46.


The Rise of the Common Law 49Supreme Court of India has itself on more than oneoccasion referred to its unreported judgments. 52Though the decisions of the High Courts have notbeen made binding authority by law, it is well settledthat the courts subordinate to the High Court arebound by its decisions. This view is to be found ina number of decisions by the High Courts, who havegone so far as to characterise a refusal on the partof the subordinate courts to follow their decisions asinsubordination.The Constitution Act of 1935 expressly providedthat the law declared by the Federal Court and byany judgment of the Privy Council shall so far asapplicable be recognised as binding on and shall befollowed by all courts in British India. Though thedecisions of the Privy Council are no longer bindingauthority after the Constitution of 1950, they are stillpersuasive authority of great value and are treatedwith the highest respect by the Indian courts. Inregard to the judgments of the Supreme Court ofIndia the Constitution provides that " The law declaredby the Supreme Court shall be binding on allcourts within the territory of India." 53Recently opinions were expressed that the citationof numerous precedents in which the large number ofreports now being published abound impede the speedyand effective administration of justice. Thereuponthe question whether the system of precedents shouldcontinue to be followed in India formed the subject«2 Baijnath Tripathi v. State of Bhopal, A.I.E. [1957] S.C. 494,496.53 Indian Constitution, Art. 141.


50 The Common Law in Indiaof consideration by the Law Commission of Indiaappointed in 1955. The Commission examined thewhole question and came to the conclusion that thesystem was so bound up with the growth of law andjudicial development in India that it was not practicableto go back upon it at the present stage evenif the taking of such a step was desirable. They alsoexpressed the view that the system of treating decidedcases as a source of law and as binding authority hadundoubted advantages and emphatically disapprovedof any change. 54The Rule of LawThe fundamental principles of English constitutionallaw which maintain the freedom of the individualand limit the power of the servants of the Crown,derive from the common law. The basic principle ofthe method of the administration of justice assertedas early as the Magna Carta was that no person howevergreat and powerful could disregard the ordinarylaw of the land. The contests between the courts andthe Crown in the sixteenth and the seventeenth centuriesled to the firm establishment of this principle.The result was a government within the boundsestablished by law. The exercise of the powers ofgovernment were to be conditioned by law and thesubject was not to be exposed to the arbitrary willof the ruler. The Rule of Law means in the words ofDicey, " The absolute supremacy or predominanceof the regular law as opposed to the influence of5 * Eeport of Law Commission of India, 1958, pp. 628-629.


The Rise of the Common Law 51arbitrary power and excludes the existence of arbitrarinessof prerogative or even of wide discretionaryauthority on the part of the government." 55 It wasthe common law which brought about the acceptanceas unquestionable of " the principle that anyone—whether a private citizen or high official—who interfereswith the person or property of another can bemade to answer for his actions before a court oflaw." 56We have seen how as far back as 1772 it wasannounced at the inauguration of the court of justicein Bombay that no government servant, that noteven the Governor himself was to be above the law.We may also recall Regulation III of 1793 whichsubjected the executive officers of the government,acting beyond the law in the discharge of their officialduties, to the jurisdiction of the courts. Englishpractice and tradition gradually developed the principleof the supremacy of the law in India. TheTanjore case early laid down the principle that whileacts of state done by a sovereign power cannot beexamined in municipal courts if the act professes tobe done under municipal law, the courts will havejurisdiction to examine its validity. 57 The establishedprinciple enunciated by the Judicial Committee thatthe phrase (" act of state ") " as applied to acts ofthe executive directed to subjects . . . can give noimmunity from the jurisdiction of the court to inquire55 Dicey, Introduction to the Study of the Law of the Constitution,9th ed., p. 202.5 « Lord Kilmuir, " The Migration of the Common Law " (1960)76 L.Q.E. p. 43.« Secretary of State v. Kamachee (1859) 7 M.I.A. 476.


52 The Common Law in Indiainto the validity of the act," 58 was acted upon inIndia and it was uniformly accepted that the Crowncould be sued in respect of any executive act doneunder the municipal law. 59 It was recognised thatthe executive could act only in pursuance of powersgiven to it by the law. Following the well-acceptedprinciples of English jurisprudence the courts repeatedlydecided that no member of the executivecould interfere with the liberty or the property of asubject except on condition of supporting the legalityof his action before a court of justice. Nor did thejudges shrink from deciding issues between the subjectsand the executive. The doctrine that executive actsdone by a sovereign power are amenable to the jurisdictionof the courts and that there is a distinctionbetween such acts and what may truly be describedas " acts of state " has been exhaustively examinedand affirmed by the Supreme Court of India. 60 Thecommon law remedies of prohibition, certiorari andmandamus which have served as powerful aids tothe establishment of the Rule of Law could be availedof in the Presidency Towns. As we have seen theremedy of habeas corpus in a statutory form whichwas at first available only in the Presidency Townswas eventually extended to the mofussil areas.Indeed it has been said that one of the most beneficentresults of the association of England with Indiass Eshugbayi Eleko v. Government of Nigeria [1931] A.C. 662,671.5» Secretary of State for India v. Hari Bhanji (1882) I.L.R. 5Mad. 273; Vijaya Baghava v. Secretary of State (1884) I.L.R.7 Mad. 466, 478.60 Province of Bombay v. Kusaldas S. Advani d Ors. [1950]S.C.E. 621, 694-696.


The Rise of the Common Law 53has been to introduce the Rule of Law into the landand to embed it so firmly into the lives of the peoplethat its displacement seems unlikely in any foreseeablefuture." 61IV.THE SELECTIVE APPLICATION OF ENGLISH LAWWe have seen that over the years English law beingfounded on " justice and right" or " justice, equityand good conscience " its application had to conformto Indian circumstances and conditions. This necessarilyresulted in what may be called a selectiveapplication of the English law in India. The adoptionof the rules of English law by the Indian courts wasneither automatic nor uncritical. Although theystarted with a presumption that a rule of English lawwould be in accordance with the principles of justice,equity and good conscience, they bore in mind thereservation which was later expressed by the PrivyCouncil in the words " if found applicable to Indiansociety and circumstances." 62 In several cases thecourts refused to apply the rules of English law onthe ground of their being inapplicable to Indiancircumstances.As early as 1836 the Privy Council held that theEnglish law incapacitating aliens from holding realproperty had not been introduced in India. 63 Similarlyin 1863 they held that the English law of felode se and consequent forfeiture of property did not61 Mr. Justice Vivian Bose, " The Migration of the CommonLaw " (1960) 76 L.Q.K. p. 63.« Waghela v. Sheik (1887) 14 LA. 89, at p. 96.83 Mayor of Lyons v. East India Company (1836) 1 Moore, Ind.App. 175, 271.


54 The Common Law in Indiaextend to an Indian resident domiciled at Calcutta. 6 *In the famous Tagore case decided in 1872 they heldthat English authorities as to the transfer of propertywere of little or no assistance in India. 65 In 1878the Judicial Committee equally emphatically declaredthat the distinction in English law between real andpersonal property did not always obtain in India. 66Again the Privy Council refused on several occasionsto apply the English laws of maintenance and champertyin India. They held that these laws " are notof force as specific laws in India. . . . They werelaws," said the Judicial Committee, " of a specialcharacter directed against abuses prevalent, it maybe, in England in early times and had fallen into atleast comparative desuetude. Unless, therefore, theywere plainly appropriate to the condition of thingsin the Presidency Towns of India, it ought not to beheld that they had been introduced there as specificlaws upon the general introduction of British law." "In more recent days the Judicial Committee has pronouncedthat the distinction between indictment andaction in regard to what is done on a highway is adistinction peculiar to English law and ought not tobe applied in India. 68The High Courts in India have followed the sametrend rejecting the principles of English law wheneverthey were thought unsuitable to Indian conditions.61Advocate-General of Bengal v. Ranee Surnomoye Dossee (1863)9 Moore Ind.App. 391, 431.«5 Tagore v. Tagore (1872) I.A.Supp. 47, 64.«• Dorab Ally Khan v. Abdool Azeez (1878) 5 I.A. 116, 126.67Raja Rai Bhagwat Dayal Singh v. Debit Dayal Sahu (1907)35 I.A. 48.68Manzur v. Muhammad (1924) 52 I.A. 61, at 67.


The Rise of the Common Law 55As early as 1874 the Sunday Observance Acts wereheld inapplicable to India. 69 In 1875 the High Courtof Bombay refused to apply the statutes againstsuperstitious uses to Hindu religious endowments. 70Similarly that court held that the rule in Shelley'scase did not apply to a disposition by a Parsee. 71The English rule in regard to marriage with a deceasedwife's sister has been held not to extend to personswho were not by origin or domicile English. 72 Similarlythe common law rules as to survivorship, specialdamages in a case of imputation of unchastity to amarried woman in the mofussil, have been heldinapplicable to India. 73It is interesting to note the approach of the Indiancourts to the doctrine in Tweddle v. Atkinson. 7 * Thecourts took the view that as the decision was basedon a form of action peculiar to the common law courtsin England it should not be applied to India andparticularly to the mofussil. It was said that theequitable concept of trust to enable a third party toenforce a contract made between others was an instanceof the growth of law by means of the dualfiction of trust and agency. Whatever may have beenthe necessity for the use of such fictions in Englandthere was no reason why courts in India should shrinkfrom a frank recognition of the facts. Jenkins C.J.•» Param Shook Doss v. Rashed Ood Dowlah (1874) 7 Mad.H.C.E.285. Kusalchand v. Mahadev Giri (1875) 12 Bom.H.C. 214.« Mithibai v. Limji Nowroji (1881) I.L.B. 5 Bom. 506. Lopez v. Lopez (1885) I.L.B. 12 Cal. 706. Webb v. Lester (1865) 2 Bom.H.C.Bep. 52; Parvathi v.Manner (1884) I.L.B. 8 Mad. 175.»* (1861) 1 B. & S. 393; 121 E.B. 762.


56 The Common Law in Indiasaid that the administration of justice was not to behampered by Tweddle v. Atkinson and that in Indiacourts were to be guided in matters of procedure bythe rules of justice, equity and good conscience. 75What we have noticed illustrates the discriminationwhich the Indian courts exercised in their prolongedcareer of judicial legislation based on English law.V. EQUITY AND COMMON LAWWe have noted that there never were in India anyseparate courts administering equity. The SupremeCourts had both common law and equity jurisdictions.As courts of equity they had power and authorityto administer justice as nearly as may be accordingto the rules and procedure of the High Court ofChancery in Great Britain. In a sense these courtscombining both common law and equity jurisdictionsbrought about in advance the fusion of law and equityjurisdictions which was effected in England by theJudicature Act of 1873. In England the JudicatureAct did not fuse the two systems of rules. 74 In India,however, law and equity were always treated as partof the same system. We have seen how the principlesof English law came to be administered particularlyin the mofussil as " justice, equity and good conscience."In the application of this formula thecourts drew liberally both upon English common lawas well as English equitable doctrines. In effect whatwas applied in India was common law as liberalised" Debnarayan v. Chunilal (1914) I.L.E. 41 Cal. 137; Kshirodebahariv. Mangobinda (1933) I.L.K. 61 Cal. 841.74 Holdsworth, Some Makers of English Law, p. 208.


The Rise of the Common Law 57by equity. In India equity worked through and notin opposition to the common law.In England an equitable right or estate is recognisedas something different from a legal right or estate.The interest of a beneficiary in trust property is inEngland an equitable interest while the legal interestin the estate is in the trustee. Again in England ifa person agrees to sell land he creates in the buyeran equitable interest in the land. These equitableinterests were the creation of the Court of Chancery.The law in India never recognised any distinctionbetween legal and equitable interests. As early as1872 the Privy Council said: " The law of India,speaking broadly, knows nothing of the distinctionbetween legal and equitable property in the sense inwhich it was understood when equity was administeredby the Court of Chancery in England." 77 Thesame position was reiterated by that court in 1931when it said that by the law of India " There canbe but one owner and where the property is vestedin a trustee the owner must, their Lordships think,be the trustee." 78It is not surprising, therefore, that some of thepeculiar equitable doctrines were not found acceptableby the Indian courts. They held that provisions infavour of children or other persons for their advancementwere unknown among Indians. The general lawof succession in India, the Indian Succession Act, didnot enact the rule of English law by which a childwho had received a benefit must account for it on a" Tagore v. Tagore (1872) I.A.Supp. 47, 71.78 Rani Chhatra Kumari v. Mohan Bikram (1931) 58 I.A. 1279, 297.H.L.—12 5


58 The Common Law in Indiadistribution when a father dies intestate. The rulehas, however, been held to apply to persons subjectto English law in India. 79 The equity of part performancewhich in England mitigated the rigour ofthe Statute of Frauds by taking a parole contractout of it when it had been partly performed seemedat one time to apply to India to the extent of takingaway the application of the laws requiring registrationand other formalities in such cases. 80 The doctrinehas now been in a partial form incorporated into thestatute governing transfer of property. 81However, the statute law of India has incorporatedin itself to a substantial extent equitable rules anddoctrines. The Indian Trusts Act of 1882 embodiesin a concise form the whole structure of trusts builtup by the equity courts in England. In order toclarify the principles enacted in the sections, illustrationshave been appended to some of them whichin many cases are based on English decisions. TheAct also deals with " certain obligations in the natureof trusts." These are attempts to enumerate broadlycircumstances under which a person may be placedin the position of a trustee in reference to another.These " obligations in the nature of trusts " are nodifferent from the implied and constructive trustsfound in the decisions of the English equity courts.Another instance of an almost bodily transplantationof the doctrines of English equity courts is tobe found in the Specific Relief Act of 1877. It deals" Kerwick v. Kerwick (1920) 47 I.A. 275.80Mahomed Musa's Case (1914) 42 I.A. 1.« Transfer of Property Act, 1882, s. 53A.


The Rise of the Common Law 59with cases in which courts will order restitution ofspecific property and order contracts to be specificallyperformed. It also enumerates the circumstances inwhich the courts will grant the relief of rectificationand cancellation of instruments. The Act is in a sensea blend of common law and equity inasmuch as italso makes provision in a qualified manner for thewrit of mandamus in certain cases. This statutepowerfully illustrates how those who were charged withthe task of drawing suitable codes for India discardedthe distinction between law and equity in Englishjurisprudence, not hesitating to include in an Actdealing mainly with the equitable relief of specificenforcement, a remedy in the nature of the Crownwrit of mandamus.VI.INDIAN COMMON LAWCommon law consists, as we have seen, of customaryrules of the realm recognised by the courts. In thatsense every country can be said to have its commonlaw, rules of conduct which apply to citizens generallyand the rights and privileges which they can enjoy.Some of these customary rules prevailing in Indiahave come to be known as the Indian common law.The right to a public highway is recognised in Indiaas in England as the common law right of the citizen.Anyone in India can set up a ferry on his ownproperty and take toll from strangers for carryingthem across. 82 Similarly the Indian courts have82 Maharaja Sir Luchmeswar v. Sheik Manowar (1891) 19 I.A.48, 55.


60 The Common Law in Indiarecognised the right to a fishery in a tidal and navigableriver in Bengal. 83 As instances of other Indiancommon law rights may be mentioned the right ofburial and with it the right to perform all customaryrites, the right to worship in a mosque or temple andthe right to take out religious processions. 8 * TheIndian courts have also recognised as a common lawright a right to have access to courts of law if aperson can show a cause of action. 85VII.CONCLUSIONWe have examined the factors which led to theapplication and growth of the English law in India.It was almost directly introduced in the PresidencyTowns of Calcutta, Madras and Bombay. In thegreater part of the country it obtained its sway inthe guise of the principles of " equity, justice andgood conscience." Then followed the regulationsmade in the Provinces from time to time, and themagnificent structure of the Indian Codes erected inthe latter half of the nineteenth century. The Codesembodied in the main the principles of English lawsimplified and modified to suit Indian conditions.Some of the Indian statutes made express provisionfor the application in India of principles and rulesenforced by the English courts for the time being. 86A prolific source of the incorporation of English83 Sirnath v. Dinabandu (1914) 41 I.A. 221, 245.s* Ramrao v. Rustum Khan, I.L.B. (1901) 26 Bom. 198; MdWashi v. Bachhan Sahib, A.I.E. [1955] All. 68; Manzur v.Muhammad Zaman (1924) 52 I.A. 61.85 Jagannatha v. Kathaperumal, A.I.E. [1927] Mad. 1035.86 Indian Divorce Act, 1869, s. 7.


The Rise of the Common Law 61principles into Indian jurisprudence were the decisionsof the Indian courts. Notwithstanding the enactmentof the codes there still remained extensive tractswhich had not been covered by the codified law. Asan example one may refer to the vast field of civilwrongs. With no rules whatever to guide them insuch tracts the Indian courts followed, as far ascircumstances would permit, the trail of the Englishstatutes and English decisions. Even in fields coveredby the codes it was obvious that the codes could notby their very nature cover all situations and caseswhich might arise. They laid down general ruleswhich would need interpretation and perhaps somemodification in their application to particular cases.The courts applying the general rules embodied inthe codes to new situations would naturally look forassistance to cases decided on similar situations inEngland. Where the language of the code was clearand applicable no question of relying upon Englishauthority would arise. But very often the generalrule in the Indian Code was based on an Englishprinciple and in such cases the Indian courts frequentlysought the assistance of English decisions tosupport the conclusions they reached. They couldnot do otherwise for not only the general rules containedin the codes but some of the illustrations givento clarify the general rules were based on Englishdecisions.Frequently there arose questions of the interpretationof these codes. There again the rules and maximsof interpretation laid down by the English courtswere helpful and were largely followed.


62 The Common Law in IndiaIn the words of Sir Henry Maine 87 : "The highercourts, while they openly borrowed the English rulesfrom the recognised English authorities, constantlyused language which implied that they believed themselvesto be taking them from some abstract bodyof legal principle which lay behind all law; and theinferior judges, when they were applying some halfrememberedlegal rule learnt in boyhood, or cullinga proposition of law from a half-understood Englishtextbook, no doubt honestly thought in many casesthat they were following the rule prescribed for them,to decide ' by equity and good conscience' whereverno native law or usage was discoverable."Thus have the concepts, principles, rules andtraditions of English law penetrated into Indian jurisprudenceand the fabric of the judicial system ofIndia. The process continues to this day. One hasonly to look at any volume of the reports of the HighCourts or the Supreme Court of India to see thatEnglish precedents and recognised English textbooksare freely cited and relied on by these courts.Village Communities, pp. 298-299.


CHAPTER 2CIVIL LAWTHE first Law Commission, of which we have alreadyspoken, reasoned that, " in every country there oughtto be a law which is prima facie applicable to everyperson in it ... though British India may appearon the one hand to have less need of a lex loci thanany other country, because the great mass of itspopulation consists of two sects whose law is containedin their religion, yet on the other hand there isprobably no country in the world which contains somany people who, if there is no law of the place,have no law whatever." * On this was founded thedecision to enact in India laws which were to beterritorial in their application. It was not, however,suggested that the personal laws of Hindus orMahomedans should be taken away. The territoriallaw was to be restricted to law applicable to allinhabitants of the country alike.The labours of the first Commission, which we shallhave occasion to refer to later, were solely devotedto the preparation of a general criminal code forthe country.After the Charter Act of 1853 a new Commissionwas appointed which had among its members Sir JohnRomilly, Sir Edward Ryan and Messrs. Cameron andMacleod to whom we shall have occasion to refer later1 Quoted in Rankin, Background to Indian Law, pp. 34-35.63


64 The Common Law in Indiaand Mr. T. F. Ellis. The second report of this Commissionsubmitted in December 1855 dealt with " thewants of India in respect of substantive civil law." 2In its short life of three years the Commission whichhad made this recommendation " could not attemptto complete such an edifice as they projected or evento lay its foundations, but they did a great workwhen they laid out the scheme. On December 14,1861, a commission was issued to certain persons forthe purpose of preparing a body of substantive civillaw for India and they were directed to do so onthe principles laid down by the Report of 1855. Thisset on foot the work of drafting " 3 the great Indiancivil codes which were to follow in fairly quicksuccession.LAW OF SUCCESSIONThe year 1861 saw the acceptance by the Governmentof the policy laid down in the Commission's secondreport of December 1855. The new Commissionersappointed in that year were requested to makeseparate reports on each branch of the civil law thatthey dealt with from time to time. From the discussionswhich had preceded their appointment it wasplain that the law most urgently required for personsother than Hindus and Mahomedans was a law toregulate the devolution of property on death. " Thishad been the topic which had called forth the attempton the part of the country courts ' to ascertain in thebest manner they could what was the law of the2 Ibid., p. 42.3 Ibid., pp. 44-45.


Civil Law 65country of the parties before them. . . .' The draftwhich with little change became the Indian SuccessionAct of 1865 was submitted on June 23, 1863, in aunanimous report signed by Sir John Romilly (LordRomilly, Master of the Rolls), Sir William Erie (ChiefJustice of the Common Pleas), Sir Edward Ryan, Mr.Robert Lowe (Lord Sherbrooke), Mr. Justice Willesand Mr. J. M. Macleod, the last mentioned havingbeen one of the Indian Law Commissioners ofMacaulay's time." 4Sir George Rankin refers to the draft as " a mostvaluable and distinguished piece of work, carried outby a body of real experts who devoted their knowledgeand abilities to the cause of clearness andsimplicity, and took right and bold decisions onmajor questions of principle. Archaisms were rigidlyeschewed." 5The scheme of the Act may be described in brief.Marriage by itself was not to have any effect inchanging the ownership of property of a party. Thedistinction made in English law between real andpersonal property was to have no place in it. Thatdistinction which had in substance resulted in a doublelaw of succession in England and led to technicalitieswas obviously unsuitable to Indian conditions. TheAct had no doubt to make a distinction betweenmovable and immovable property of deceased personsfor certain purposes. The same rules were, however,to apply to the succession to both kinds of property.Testamentary succession was not known to Hindu* Ibid., p. 46.* Ibid., p. 47.


66 The Common Law in Indialaw. But the practice of making testaments had comeinto existence at the commencement of the Britishrule and even earlier in the Presidency Towns. Theorigin of this practice can perhaps be traced to Indianscoming into contact with Englishmen who were accustomedto make testaments. The will of a Hinduappears to have first come before the courts in 1786."The Succession Act recognised wills and required themto be in writing and signed and attested by twowitnesses. But the formalities laid down were notas strict as those provided in English law. The Actrequired a grant of a probate or letters of administrationfor the purpose of representation to the estateof a deceased person and as authorising the administrationof his property. A duty was laid on theexecutor to pay the funeral and testamentary expensesof the deceased and all his debts in so far as theassets would permit. The perpetuity limit laid downin the Act was the lifetime of one or more personsliving at the testator's death and the minority ofsome person who was to be in existence at the expirationof that period and to whom if he attainedfull age the thing bequeathed was to belong. Abequest to a person not in existence at the death ofthe testator was made void if it was subject to aprior bequest unless it comprised the whole of theremaining interest of the testator in the thing bequeathed.Directions for accumulation were validonly if they operated for one year after death.Bequests to religious and charitable objects could only6 Munno Lai v. Gopu Butt (1786) Montr. 290.


Civil Law 67be made by a will executed not less than a year beforea person's death and deposited within six months ofits execution with the Registrar, when the deceasedperson had left near relations.Thus was enacted a system of succession whichwas to apply to all who were not expressly exemptedfrom it. Hindus and Mahomedans and Buddhistswere in terms excepted from the operation of theAct and authority was given to exclude from itsoperation other sections of the Indian community.Thus the Act applied only to Europeans, Eurasians,Jews, Armenians and Indian Christians, excludingfrom its operation the majority of the inhabitants ofthe land. It was, however, the general law of theland applicable to the devolution of all property inBritish India and also to all movables outside BritishIndia of persons domiciled in British India.At the time of the passing of the Act it was hopedthat its provisions relating to testamentary dispositionmight be applied generally to all. In 1870 camelegislation which applied its provisions in regard towills to Hindu wills executed in the Presidency Towns.Gradually as the practice of making wills spreadamong the Hindus in the mofussil these provisionswere extended to other areas.A further step was taken by the enactment of theProbate and Administration Act of 1881 which appliedto Hindus as well as Mahomedans. About fifty yearslater came the Indian Succession Act of 1925 7 whichconsolidated the general law of India applicable tointestate and testamentary succession repealing the' Act 89 of 1925.


68 The Common Law in IndiaActs of 1865, 1870, 1881 and several other Acts. Thatstatute constitutes the general law of succession inIndia but its operation does not yet extend to thosewho are governed in these matters by their personallaws of succession such as Hindus, Moslems, andParsees. Some of its provisions such as those concerningthe making of testaments apply to Hindus.Its provisions relating to representation to the estateof deceased persons are of general application. Since1956 the Hindus who constitute the vast majority ofthe Indian population have been governed in mattersof succession by a special code. 8 The Mahomedansstill retain their uncodified law of succession.The concept of domicile for the purpose of successionlaid down in the Indian Succession Act is substantiallythe same as in England. 9 The mannerprovided for the execution of unprivileged wills isbased on the English statute of 1837 with a slightvariation. 10 The principles enacted in the Act for theinterpretation of wills have, it is said, been formulatedwith the aid of a book published in England in1863. 11However, the rule based on English practice andhabits of thought, that in construing a will the courtshould lean against intestacy, has not been appliedto Indian wills. 12 Similarly the doctrine of children'ss Hindu Succession Act 30 of 1956.9 Act 39 of 1925, ss. 5 to 18.10 Ibid., s. 63; Wills Act, 1837, s. 9.11 Francis Vaughan Hawkins, Construction of Wills; Bankin,op. tit., p. 49.12 Venkata Narasimha Appa Row v. Parthasarthy Appa Row(1913) 41 I.A. 51, 71.


Civil Law 69advancement based on English ideas has been expresslynegatived by the Act. 13The courts in India accustomed to resort to Englishdecisions when doubts arose occasionally applied rulesof interpretation laid down in the English cases inconstruing wills in the Indian language. The JudicialCommittee of the Privy Council had to intervene andpoint out that to search and sift the heaps of caseson wills which cumber the English Law Reports, inorder to understand and interpret the wills of peoplespeaking a different tongue, trained in different habitsof thought and brought up in different conditions oflife, seemed almost absurd. 14 On other occasions theJudicial Committee had to insist on the Indian courtsbeing guided by an examination of the Indian statutesgoverning the matter rather than entering upon theunprofitable task of discovering the law from Englishdecisions based on somewhat different rules.Though the Indian statutes dealing with the law oftestamentary and intestate succession have to a largeextent embodied the principles of English law theyhave also taken a different course in many importantmatters. It would perhaps be correct to state thatthe Indian legislature has by degrees evolved an independentsystem of its own, largely suggested nodoubt by English law, but also differing much fromthat law and purporting to be a self-containedsystem. 15« Act 39 of 1925, s. 49.14 Norendra Nath Sitcar v. Kamalbasini Dasi (1895) 23 I.A. 18,26." Mirza Kurratulain v. Peara Saheb (1905) 32 I.A. 244, 257, 258;Bamanandi Kuer v. Kalawati Kuer (1927) 55 I.A. 18, 23.


70 The Common Law in IndiaCONTRACTSThe Report of the Commission, made in 1855, hadamong other things stated: "We see no reason,however, why, on very many important subjects ofCivil Law—we shall only name one, contracts, as anexample—such law cannot be prepared and enactedas will be no less applicable to the transactions ofHindoos and Mahomedans, by far the most numerousportions of the population, than to the rest of theinhabitants of India." "The Commission which changed in personnel afterit had submitted its draft of the law of successionwas ready with the draft of the law of contract in1866. The subject appears to have been selected asit had afforded the most frequent occasion for litigationin India.Sir Frederick Pollock who had the occasion to studythe draft when he later wrote his commentary on theIndian Contract Act in 1905 had high praise for thework done by the Commission. In his view the draftprepared in England by the Indian Law Commissionwas uniform in style and possessed " great merit asan elementary statement of the combined effect ofcommon law and equity doctrine as understood aboutforty years ago."" Equally appreciative was SirHenry Maine who introduced the Contract Bill in theLegislative Council in 1867. He said: "Their draftwill be found to consist of the English law of contractmuch simplified and altered in some particulars so16 Quoted in Kankin, op. cit., p. 88.17 Pollock and Mulla, Indian Contract and Specific Relief Acts,8th ed., Preface, p. vii.


Civil Law 71as to accommodate it to the circumstances of thiscountry. ... It may be said of these proposedmodifications of English law that while all, or nearlyall, of them have commended themselves to theapproval of enlightened lawyers, not a few are beinggradually carried out in England without the aid ofthe legislature through the direction given of lateyears to the current of judicial decision." 1SThe Bill as introduced contained, however, someclauses relating to specific performance which evokedconsiderable opposition both in England and India.Indeed this opposition brought about the resignationof Lord Romilly and his colleagues in 1870 and theContract Bill remained before the Legislative Councilfrom 1867 to 1872.During this period the Commission's draft appearsto have been " revised and in parts elaborated by theLegislative Department of India. The borrowing fromthe New York draft Code seems to belong to thisphase. Lastly, Sir James Stephen made or supervisedthe final revision, and added the introductory definitions,which are in a wholly different style and notaltogether in harmony with the body of the work." 19The sections borrowed from the draft Civil Code ofNew York were described by Sir Frederick Pollock as" an infliction which the sounder lawyers of that Statehave been happily successful so far in averting fromits citizens." Notwithstanding these changes, however,in his words it was much to the credit of the18 Statement of Objects and Reasons, July 9, 1867; quoted inKankin, op. cit., p. 94.19 Pollock and Mulla, Indian Contract and Specific Relief Acts,8th ed., Preface, p. vii.


72 The Common Law in Indiaworkmen " that the result, after allowing for alldrawbacks, was a generally sound and useful one." 20The Act deals in its first chapter, headed " Of thecommunication, acceptance and revocation of proposals,"with the basic principles underlying theformation of contracts. It proceeds in the next chapterto tell us what agreements are contracts and whatpersons are competent to contract. The same chapterdeals with contracts which are voidable and voidagreements. We have next the subject of contingentcontracts. Another chapter deals with the performanceof contract, laying down among other things bywhom contracts must be performed and the time andplace of performance. It also deals with contractswhich need not be performed. The Code also dealswith quasi contracts which it calls " Certain relationsresembling those created by contract." It provides,in a chapter headed " The consequences of a breachof contract," the measure of compensation for lossor damage caused by the breach. It dealt also withthe law of the sale of goods and partnership but theIndian legislature repealed the sections dealing withthese subjects when it enacted the Indian Sale ofGoods Act in 1930 and the Indian Partnership Actin 1932. The Act also deals with contracts of indemnityand guarantee, bailment, bailments by wayof pledge and agency. It is thus a fairly comprehensiveattempt to deal with all aspects of this branchof the law.Yet its preamble states that it is an attempt only" to define and amend certain parts of the law relating20 Ibid., p. vii.


Civil Law 73to contracts." The courts have held that the Act isnot a complete code dealing with the law of contracts 21and have in the absence of specific provisions in theAct frequently applied principles of English commonand statute law and the decisions of English courts.In cases for which no relevant provision is found inthe Contract Act or other enactments relating tocontracts the courts have even applied rules of Hinduand Muslim law of contracts to Hindus and Muslims.As an instance may be mentioned the rule of theHindu law of contract known as damdupat whichprevents interest exceeding the amount of the principalbeing recovered at any one time. This rule isstill in force in the Bombay Presidency and in thePresidency Town of Calcutta. Well recognised customsand usages of trade have also been saved bythe provisions of the Act and have in the absenceof any inconsistent provision in the Act been appliedby the Indian courts. 22CON SIDER ATIONIt is interesting to examine some aspects of the lawof consideration formulated in the Act and comparethem with the English common law." Consideration " is denned in section 2 (d) of theAct as follows: " When, at the desire of the promisor,the promisee or any other person has done or abstainedfrom doing, or does or abstains from doing, orpromises to do or to abstain from doing something,21 Irrawaddy Flotilla Co., Ltd. v. Bugwandass (1891) 18 I.A.121, 129.22 Indian Contract Act, 9 of 1872, a. 1.H.L.—12 6


74 The Common Law in Indiasuch act or abstinence or promise is called a considerationfor the promise."The language of the definition would suggest, aspointed out by Whitley Stokes 2S that in India considerationneed have no value. The fundamental ruleof the English common law is that consideration issomething which not only the parties but the courtcan regard as having some value. " The principlemay be broadly expressed thus: The law will notenforce a promise given for nothing, and if it isapparent to the court on the face of the transactionthat an alleged consideration amounts to nothing (notmerely to very little), then there is no foundationfor the promise, and we say either that there is notany consideration or that there is an ' unreal consideration.'The Act does say in section 10 thatagreements are contracts, i.e., enforceable, if they are(amongst other conditions) made for a lawful consideration.In section 23 it is declared that certainkinds of consideration are not lawful. In section 25agreements made without consideration are declared(special exceptions excepted) to be void. It is notanywhere stated in terms that consideration is notlawful, or otherwise not sufficient, if it is not ' good'or ' valuable' in the sense which those terms bearin English law." 2i Notwithstanding the absence,however, of a specific provision that the considerationmust be a valuable consideration it does not appearthat the Act intended to abrogate the fundamentalcommon law rule.23 Anglo-Indian Codes, Vol. I, p. 497.2* Pollock and Mulla, op. dt., pp. 32-33.


Civil Law 75Consideration may under the Act move from aperson other than the promisee. The definition expresslyso states. It has been held by the courts thatthis is a deliberate departure from the English lawwhich provides that consideration cannot lawfullymove from a person other than a promisee.The Indian law also recognises a consideration antecedentto the promise. There would be a considerationfor a promise if the promisee or any other personhas done or abstained from doing something. Pastconsideration has been held in India to be goodconsideration. The common law rule, however, isthat the promise and the consideration should besimultaneous. " The consideration must always bepresent at the time of making the promise and thereis no such thing as past consideration." 25 TheIndian law seems in this respect to have adopted therule laid down in the English case of Lampleigh v.Braithwaite decided in 1615. 26Under the Indian law consideration is necessary tothe validity of an agreement except in certain cases.An agreement made without consideration will bevalid in India if it is made out of natural love andaffection between parties nearly related provided theagreement is in writing and registered. It will alsobe valid without consideration if it is a promise tocompensate a person who has voluntarily done somethingfor the promisor or something which thepromisor was legally compellable to do. 27 If A« Ibid., p. 25.s« 1 Sm.L.C, 11th ed., 141.« Indian Contract Act, 8. 25 (1) and (2).


76 The Common Law in Indiapromises to give B a sum of money for having foundhis lost purse or his lost dog the promise would bevalid though without consideration, A having actedvoluntarily. Similarly, if A promises to compensateB for having maintained A's infant son whom A waslegally compellable to maintain, the promise wouldbe valid though without consideration. A promiseto pay a debt which is barred by limitation wouldalso be valid though without consideration. 28 Therule of English law that a contract in the form ofa deed is valid though there be no consideration forit does not find a place in Indian law.In its Thirteenth Report, made in 1958, the LawCommission of India had occasion to consider themodern attitude towards the doctrine of considerationwhich has been described by Professor Holdsworth" as something of an anachronism." It was pressedupon the Commission that the working of the doctrinehas resulted in injustice in many cases and that itshould be abolished or at any rate modified. TheCommission examined the Report of the Law RevisionCommittee in England made in 1937 and its conclusionthat the law should be modified so that acontract should exist if there was an intention tocreate legal relations and if either the contract wasreduced to writing or consideration was present. Italso examined the report of New York Law RevisionCommission which had been constituted at about thesame time as the English Law Revision Committeeand which had reached conclusions in many respects28 Ibid., s. 25 (3).


Civil Law 77similar to those of the English Committee. The Commission,however, felt themselves unable to recommendthe abolition of the doctrine. They said: "Ithas become so firmly rooted in our concept of contract,that a wholesale rejection of the doctrine would havethe result of overturning the very structure on whichour Law of Contract is based and would require acomplete and thorough overhaul of the law. This,in our opinion, is hardly warranted by the circumstances."29 The conclusion reached by the Commissionwas that the exceptions found in the Indian lawto the requirement of consideration should be enlargedand they specified some cases to which these exceptionsmay be extended.Under the Indian law all agreements are contractsif they are made for a lawful consideration and witha lawful object. 30 A consideration or object of anagreement is lawful unless it is forbidden by law; orit would defeat the provisions of any law; or isfraudulent; or involves injury to the person orproperty of another; or the court regards it as immoralor opposed to public policy. Every agreementof which the object or consideration is unlawful isin Indian law void. 31 In determining the applicationof the statutory concepts embodied in the words" forbidden by law" or " immoral or opposed topublic policy," the Indian courts have frequentlyderived help from the English common law. Recentlythe Supreme Court of India had occasion to go into2930Law Commission of India, 13th Report, p. 6.Indian Contract Act, s. 10.31 Ibid., s. 23.


78 The Common Law in Indiait when a question arose whether a partnership formedfor the purpose of carrying on a business in differenceswas unlawful within the meaning of the Indianprovision. 32WAGERING CONTRACTSIn regard to contracts by way of wager the Indianand the English law seem to have run on parallellines. At common law wagers were not illegal andbefore the enactment of the English Gaming Act of1845 33 actions used to be brought and maintainedto recover money won upon wagers. 34 In India theposition was the same before the enactment of theIndian Act for Avoiding Wagers. 35 The law thatprevailed in British India was the common law ofEngland. So it was held by the Judicial Committeeof the Privy Council. 36 Notwithstanding the GamingAct of 1845 wagering contracts were not illegal inEngland. The Act had merely rendered them voidand unenforceable at law. Thus though the primaryagreement of wager would be void an agreementcollateral to it remained valid and enforceable. Thelaw in India continued to be the same except in thePresidency of Bombay where the Bombay Wagers(Amendment) Act, 1865, anticipated the EnglishGaming Act of 1892 and rendered even collateralagreements void. The Indian Contract Act of 1872having been based on the English Gaming Act of32 Gherulal Parakh v. Mahadeodas, A.I.E. [1959] S.C. 781.as 8 & 9 Viet. c. 109.34 Read v. Anderson (1882) 10 Q.B.D. 100, 104.3 5 Act 21 of 1848.3 6 Ramloll Thackoorseydass v. Soojumnull Dhondmull (1848) 4M.I.A. 339; Chotayloll v. Manickchund (1856) 6 M.I.A. 251.


Civil Law 791845" did not, however, incorporate the provisionsof the Bombay Act so that, except in Bombay,contracts collateral to wagering contracts remainedvalid and enforceable. Later the wide and comprehensivephraseology of the Gaming Act of 1892 renderedeven collateral contracts void in England. 38The position in India, however, has remained unalteredin regard to contracts collateral to wageringcontracts.PUBLIC POLICYThe development of the doctrine of public policy whichis rooted in the common law and which is embodiedin section 23 of the Indian Contract Act appears tohave run on somewhat divergent lines in England andIndia. The doctrine has been thus explained: " Anyagreement which tends to be injurious to the publicor against the public good is void as being contraryto public policy. ... It seems, however, that thisbranch of the law will not be extended. The determinationof what is contrary to the so-called policyof the law necessarily varies from time to time.Many transactions are upheld now which in a formergeneration would have been avoided as contrary tothe supposed policy of the law. The rule remains,but its application varies with the principles whichfor the time being guide public opinion." 39 Thecourts in England have held that the rules of publicpolicy are well settled and that the function of the« 8 & 9 Viet. c. 109, s. 18.»8 Saffery v. Mayer [1901] 1 K.B. 11.« Halsbury, Laws of England, 3rd ed., Vol. 8, pp. 130-131.


80 The Common Law in Indiacourts is only to expound them and apply them tovarying situations. Lord Halsbury went so far as tosay that the categories of public policy were closedand could not be enlarged. 40 Though Lord Atkincharacterised the dictum of Lord Halsbury as toorigid he took care to lay down that the doctrineshould be invoked only in clear cases in which " harmto the public is substantially incontestable and doesnot depend upon the idiosyncratic inferences of a fewjudicial minds." 41 In India the powers conferred onthe courts by the statute are very wide. The languageof the statute expressly states that it is for the courtto decide whether it regards the consideration orobject of an agreement as opposed to public policy.The courts have, therefore, while accepting the observationsof the English judges that public policy is" an unruly horse " and an " illusive concept," refusedto adopt the view that the categories of publicpolicy are closed and that the courts cannot proceedto decide on new heads of public policy. The Indianview was thus expressed in a Bombay judgment. " Itis no doubt open to the court to hold that the considerationor object of an agreement is unlawful onthe ground that it is opposed to what the court regardsas public policy. This is laid down in section 23 ofthe Indian Contract Act and in India, therefore, itcannot be affirmed as a matter of law as was affirmedby Lord Halsbury 40 that no court can invent a newhead of public policy. But the dictum of Lord Davey40Janson v. Driefontein Consolidated Mines [1902] A.C. 484,491.« Fender v. St. John-Mildmay [1938] A.C. 1. 11.


Civil Law 81in the same case that ' public policy is always anunsafe and treacherous ground for legal decision'may be accepted as a sound cautionary maxim inconsidering the reasons assigned by the learned judgefor his decision." 42 Other Indian decisions haveadopted this view.An attempt was made in India to attack the validityof contracts collateral to wagering contracts on theground that they were opposed to public policy. Thehighest court in India rejected the argument in thesewords: "The Common Law of England and that ofIndia have never struck down contracts of wager onthe ground of public policy; indeed they have alwaysbeen held to be not illegal notwithstanding the factthat the statute declared them void. Even after thecontracts of wager were declared to be void inEngland, collateral contracts were enforced till thepassing of the Gaming Act of 1892, and in India,except in the state of Bombay, they have been enforcedeven after the passing of the Act 21 of 1848,which was substituted by section 30 of the ContractAct." 43 In effect the court refused to evolve a newhead of public policy by pronouncing wagers to beopposed to public policy.MISTAKEThe concept of " mistake," resulting in legal consequences,is in Indian law somewhat different fromthat in English law.« Shrinivasdas v. Ramchandra (1919) I.L.E. 44 Bom. 6, 20.« Gherulal Parakh v. Mahadeodas, A.I.B. [1959] S.C. 781, 796,797.


82 The Common Law in IndiaIn England it is well established in equity as wellas at law that money paid under a mistake of lawwith full knowledge of the facts is not recoverable andthat even a promise to pay upon a supposed liabilityand in ignorance of the law will bind the party."The position in the United States and in Australiawould appear to be the same it having been held thatmoneys paid voluntarily, in the sense that they arepaid without compulsion or extortion or the exerciseof undue influence and with a knowledge of the factscannot be recovered although paid without anyconsideration. 45The Indian Act provides that " a person to whommoney has been paid or anything delivered by mistake. . . must repay or return it." 46 The word " mistake "has been used without any qualification or limitationand has been held to comprise in its scope a mistakeof law as well as a mistake of fact. The legal positionwas clarified by a recent decision of the SupremeCourt of India. A business firm had deposited certainsums with the Tax Authority in the belief that theywere payable as dues in respect of sales-tax. Subsequentlythe levy of the tax was held to be invalid.Thereupon the firm sued the taxing authority forthe repayment of the moneys deposited as tax. Inrefusing relief the court stated: " There is nowarrant for ascribing a limited meaning to the word' mistake' ... it is wide enough to cover not only« Pollock, Principles of Contract, 13th ed., pp. 366, 374; Leake,Principles of the Law of Contract, 6th ed., p. 63.« Willoughby, The Constitution of the United States, Vol. 1,p. 12; 59 O.L.E. 150.46 Indian Contract Act, s. 72.


Civil Law 83a mistake of fact but also mistake of law. . . . Themistake lies in thinking that the money paid was duewhen in fact it was not due and that mistake, ifestablished, entitles the party paying the money torecover it back from the person receiving the same.. . . No distinction can ... be made in respect oftax liability and any other liability on a plain readingof the terms of section 72 of the Indian Contract Acteven though such a distinction has been made inAmerica. . . ." 47FRUSTRATION OF CONTRACTThe doctrine of frustration of the contract which hasgiven rise to divergent theories in England is governedin India by a statutory provision.By the common law a man who promises performancewithout qualification is bound by the terms ofhis promise if he is bound at all. The view has beentaken that if parties did not mean their agreementto be unconditional they ought to have attached toit such conditions as they thought fit. However, acondition need not always be expressed in words.Some conditions may be implied from the nature ofthe transaction. In certain cases where an eventmaking performance impossible " is of such a characterthat it cannot reasonably be supposed to havebeen in the contemplation of the contracting partieswhen the contract was made," performance or furtherperformance of the contract is excused. 48* 7 Sales Tax Officer, Banaras v. Kanhaiya Lai Makand, A.I.B.[1959] S.C. 135, 141, 142; see also Sri Sri Shiba Prasad Singhv. Mahataja Srish Chandra Nandi (1949) 76 I.A. 244.« Baily v. De Crespigny (1869) 4 Q.B. 180, at p. 185.


84 The Common Law in IndiaThe English view is based on three principaltheories. " The classic theory, historically the oldest,is that of an implied term, imputed by law to theparties to regulate a situation which they would haveregulated had they thought of it. The second theoryis that the doctrine applies where the basis or thefoundation of the contract has disappeared. The thirdtheory, usually attributed to Lord Wright, and whichhis Lordship freely admitted to be somewhat heretical,is that the doctrine is invented by the court to supplementthe defects of the actual contract. Generallyspeaking, it makes little practical difference whichtheory is adopted. Lord McNair suggests that thethree theories can be reconciled. He regards thesecond theory of the disappearance of the basis ofthe contract as really an inference of fact drawn bythe court, and upon which the court bases the implicationof a term to meet the case, where the partiesmust have foreseen the possibility of occurrence andyet have not provided against it. As for the thirdtheory that the court determines what is just, thesame result is achieved under the first theory byimputing the missing term to the parties. Englishjudges favour the implied term theory." 4 'In India there is no room for the formulation ofa theory because the terms of the statute are wideenough to include a case of frustration of contract.The Act provides that " a contract to do an actwhich, after the contract is made, becomes impossible,or, by reason of some event which the promisor49 Pollock and Mulla, op. cit., p. 345.


Civil Law 85could not prevent, unlawful, becomes void whenthe act becomes impossible or unlawful." 50 Afterexamining the different theories formulated in thejudgments of the English courts the Supreme Courtof India observed: " These differences in the way offormulating legal theories really do not concern usso long as we have a statutory provision in the IndianContract Act. In deciding cases in India the onlydoctrine that we have to go by is that of superveningimpossibility or illegality as laid down in section 56of the Contract Act, taking the word ' impossible'in its practical and not literal sense. It must beborne in mind, however, that section 56 lays downa rule of positive law and does not leave the matterto be determined according to the intention of theparties. . . . Here there is no question of findingout an implied term agreed to by the parties embodyinga provision for discharge, because the partiesdid not think about the matter at all nor couldpossibly have any intention regarding it. When suchan event or change of circumstances occurs which isso fundamental as to be regarded by law as strikingat the root of the contract as a whole, it is the courtwhich can pronounce the contract to be frustratedand at an end. The court undoubtedly has to examinethe contract and the circumstances under which itwas made. The belief, knowledge and intention ofthe parties are evidence, but evidence only on whichthe court has to form its own conclusion whether thechanged circumstances destroyed altogether the basis50 Indian Contract Act, s. 56.


86 The Common Law in Indiaof the adventure and its underlying object. . . . Thisis really a rule of positive law and as such comeswithin the purview of section 56 of the Indian ContractAct." 51We have referred only to some of the modificationsof the English law which the makers of the IndianCode worked into the Indian Code to make it conformto the conditions obtaining in India.Notwithstanding these modifications Sir FrederickPollock observed a tendency in Indian courts " tofollow English authorities too literally (though in anycase they are not positively binding on Indian courts),considering only what the courts actually decided inEngland, and not what they would have decided iftheir office had been to apply the principles of thecommon law to the facts of Indian society." " Thebest way," he said, " to counteract such a tendencyis not to neglect the letter of English judgments,which is not practicable and would not be useful,but to enter more fully into their spirit and distinguishtheir permanent from their local and accidentalelements." 52Notwithstanding some of its defects referred toearlier the Indian Contract Act of 1872 has like mostof the Anglo-Indian Codes served its purpose usefullyand well. We have already referred to the suggestionsfor its revision recently made by the Law Commissionof India. Among other changes the Commission hassuggested the modification of the doctrine that aparty to the contract can alone sue to enforce it31 Satyabrata Ghose v. Mugnerain Bangur


Civil Law 87and also a provision to give effect to the doctrine of" unjust enrichment " or " unjust benefit" on thebasis of the circumstances giving rise to a quasicontract.SALE OF GOODS AND PARTNERSHIPThe chapter in the Act dealing with the sale of goodswhich was later repealed represented, as was saidwhen the Bill was introduced, " the English law onthe subject disembarrassed of the inexpressible confusionand intricacy which is thrown on every part ofit by the vague language of the Statute of Frauds." S3Conditions in India rapidly changed after the passingof the Contract Act in 1872 and the provisions inregard to sale of goods were found to be inadequate.The English law relating to the sale of goods whichwas the basis of the Indian law as enacted in 1872had itself passed through important changes and wascodified in 1893." The legislation in England discardedsome of the old common law rules and adaptedothers to suit them to the practices and conditionsof modern trade. The important colonies and overseasdominions enacted laws which were in substanceadaptations of the English Sale of Goods Act. Itappears that a number of states in the United Statesenacted in 1906 a uniform Sales Act based very largelyon the English Act. The virtual adoption of theEnglish statute in other countries indicated that itsprovisions were eminently suited to the needs ofmodern trade and commerce. Indeed the English53 Quoted in Rankin, op. cit., p. 95.»* Sale of Goods Act (56 & 57 Viet. c. 71).


88 The Common Law in Indiastatute was characterised by Lord Parker as " a verysuccessful and correct codification of this branch ofthe mercantile law." " India followed the exampleof England and the other countries and enacted in1930 the Indian Sale of Goods Act which is said torestate minutely and fully what had been enacted bythe English Sale of Goods Act of 1893. The Englishprovisions were carefully scrutinised in the light ofthe decisions after 1893; and where the decisionsshowed the provisions to be defective or ambiguousthe Indian law attempted to improve upon them.The Special Committee which was appointed to examinethe provisions of the Indian Sale of GoodsBill expressed the hope in its Report that " theadoption of the English Act as the basis of the presentBill will enable Indian courts to interpret its provisionsin the light of the decisions of the Englishcourts."In 1958 the Law Commission of India reporting onthe Sale of Goods Act, 1930, stated: "Having carefullyexamined the provisions of the Act in the lightof judicial decisions in India since 1930, the developmentof the law relating to the sale of goods in othercountries ... as well as the requirements of themodern welfare State, we have reached the conclusionthat the provisions of the Act do not require anyradical change." 56In 1932 the chapter relating to partnership in theIndian Contract Act was repealed and the law ofpartnership was embodied in the Indian Partnership53 The Parchim [1918] A.C. 157, 160, 161.56 Eighth Eeport, p. 1.


Civil Law 89Act. 57 Speaking of the Act and the Sale of GoodsAct, Sir George Rankin says: " The new PartnershipAct takes like advantage from the work done inEngland. Sir Frederick Pollock had before him theCommission's draft of 1866 when drawing out theclauses which became the Partnership Act of 1890,but the Indian Act of 1932 departs more freely fromthe English model, putting more emphasis on thefirm (or body of persons) as distinct from the partnership(or relation between the persons). It has introducedan improved arrangement by collecting in aseparate chapter sections upon Incoming and OutgoingPartners and has made some provision for dealingwith Goodwill." 58 SPECIFIC RELIEFWe have noticed how the enactment of the ContractBill into law was delayed mainly by the oppositionto its clauses relating to specific performance. Eventuallyportions of the law of specific relief were putinto a separate Bill which became the Specific ReliefAct of 1877.Mr. Hobhouse who piloted the Bill in the Councilwas an English lawyer of eminence. He obviouslydrew his materials from the jurisprudence in whichhe had been trained. The numerous illustrationsgiven in the Act may, with rare exceptions, beidentified with cases decided by the English equitycourts.It is interesting to know from one who was closelyassociated with its enactment the sources from which" Act IX of 1932. ss Eankin, op. tit., pp. 97-98.H.L.—12 7


90 The Common Law in Indiathe provisions of the Act were drawn. " For the mostimportant part of the draft—that relating to thespecific performance of contracts—some help was gotfrom the New York draft, but far more from theEnglish equity reports and the works of Mr. Dartand Lord Justice Fry. Two of its sections (14, 15)had been drafted in England by the Law Commissioners.The chapters on Rectification, Rescission,and Cancellation are for the most part taken fromthe New York draft. The chapter on DeclaratoryDecrees, originally framed on section 15 of the CivilProcedure Code of 1859 (itself copied from the Englishenactment 15 & 16 Viet. c. 86, s. 50), is in its presentform suggested by the Scotch action of declarator.The section on Receivers was suggested by Mr. PittKennedy. The chapter on the Enforcement of PublicDuties was distilled from Tapping's and other Englishbooks on mandamus, and the draft of this part of theAct was submitted by the law-member to Sir R. Couch,then Chief Justice of Bengal, who returned it to himunaltered. Lastly, in drawing the chapters on Injunctionssome help was got from the New Yorkchapter on Preventive Relief and Mr. Kerr's work onthe subject. The Bill was carefully revised and muchimproved by Mr. (now Lord) Hobhouse, then lawmemberof the Governor-General's Council. He inparticular drew the section (22) on Discretion, andmost, if not all, the illustrations which had not beentaken from the equity reports." 59The rules regulating the validity of contracts and5 » Whitley Stokes, Anglo-Indian Codes, Vol. 1, 938, 939.


Civil Law 91the legal relations of the parties to them were to befound in the Contract Act. The remedies by way ofcompensation available to parties for the breach ofcontractual obligations could be pursued in the mannerprovided in the Civil Procedure Code. But the courtsof equity in England had evolved special reliefs bywhich the performance of the very obligations undertakenby persons could be enforced against them.The purpose of the Specific Relief Act was to makethese equitable reliefs to some extent available topersons entering into contracts.The reliefs given by the civil courts might bedivided broadly into two classes: those by which thesuitor obtained the very thing to which he was entitled,and those by which he obtained not that verything, but compensation for the loss of it. The firstkind of relief was known as specific relief and thesecond was known as or at any rate might be termedcompensatory relief. The Specific Relief Act does notdeal with compensatory relief except incidentally andin so far as such relief is either supplementary to oralternative to specific relief. Its main purpose is toaward " specific relief "; to order the performance bythe defaulting person of the specific act which he hadagreed to do. Such relief includes the ordering ofspecific performance of contracts and also orders byway of injunction which prevent persons from doingwrong and which may be called " preventive relief."Thus the Act, though shortly styled the Specific ReliefAct, deals with specific as well as preventive relief.Under the head of " Preventive Relief " it treats ofperpetual injunctions. The courts are also authorised


92 The Common Law in Indiato grant mandatory injunctions, which are orders compellingthe doing of specific acts to prevent a breachof an obligation undertaken by a person. Under thehead of " Specific Relief" it deals not only withspecific performance of obligations arising from contract,but also with other kinds of specific relief suchas the awarding of possession of specific movable orimmovable property, the rectification of instruments,the rescission of contracts, the cancellation of instruments,the making of declarations and the enforcementof public duties.The Act divides contracts into those which maybe specifically enforced and others which cannot beso enforced. Illustrations based on English decisionshave been inserted into the Act to guide the courtsin determining whether a contract falls into the oneclass or the other. The grant of specific relief is,however, discretionary it being provided that " thecourt is not bound to grant such relief merely becauseit is lawful to do so." But " the discretion of thecourt is not arbitrary but sound and reasonable guidedby judicial principles and capable of correction by aCourt of Appeal." The law itself lays down ruleswhich are to serve as guides to the exercise of itsdiscretion by the court. 60Broadly speaking specific performance of a contractmay in the discretion of the court be enforced inIndia in cases when the act agreed to be done is inthe performance of a trust or when there exists nostandard for ascertaining the actual damage due to•° Specific Belief Act, 1877, ss. 22.


Civil Law 93the non-performance of a contract, or where pecuniarycompensation for the non-performance of the contractwould not afford adequate relief or when pecuniarycompensation cannot be got for the non-performanceof the act agreed to be done. 61An important feature of the Act is the remedywhich it provides for the recovery of possession ofspecific immovable property by the person entitled toit which is somewhat akin to the common law actionin ejectment and that by a person dispossessed whichresembles the old English assize of " novel disseisen."In so far as the Act provides for the recovery ofspecific movable property it would seem to embodythe common law doctrine of detinue. 62The chapter dealing with the enforcement of publicduties enacts some of the provisions of the commonlaw relating to the prerogative writ of mandamus. 63SPECIFIC PERFORMANCE OF PART OF CONTRACTThe general rule as to ordering specific performanceof part of contract was stated by Lord Romilly M.R.:" This court cannot specifically perform the contractpiecemeal, but it must be performed in its entirety ifperformed at all." M The Act incorporates this ruleand lays down that the court shall not direct thespecific performance of a part of a contract exceptin certain specified cases. 65 The court may, at the«i Ibid., s. 12.•* Ibid., SB. 8, 9 and 10; Woodroffe, The Law Relating to Injunctions,3rd ed., p. 11.« Specific Belief Act, as. 45-51.** Merchants' Trading Co. v. Banner (1871) 12 Eq. 18, at p. 2a• 5 Specific Belief Act, s. 17.


94 The Common Law in Indiasuit of either party, direct the specific performanceof so much of the contract as can be performed andaward compensation in money for the deficiency wherethe part which must be left unperformed bears onlya small proportion to the whole in value and admitsof compensation in money. Even in cases where apart of the contract left unperformed forms a considerableportion of the whole, the party not in defaultmay obtain specific performance of so much as canbe performed if he relinquishes all claim to furtherperformance and compensation from the other party.In cases, however, where a part of a contract standson a separate and independent footing from anotherpart of it which cannot be specifically performed, thecourt may direct the performance of the formerpart.The English law relating to partial performance wasthus stated by Viscount Haldane: "In exercising itsjurisdiction over specific performance a court of equitylooks at the substance and not merely at the letterof the contract. If a vendor sues and is in a positionto convey substantially what the purchaser has contractedto get, the court will decree specific performancewith compensation for any small and immaterialdeficiency provided that the vendor has not by misrepresentationor otherwise, disentitled himself to hisremedy. Another possible case arises where a vendorclaims specific performance and where the court refusesit unless the purchaser is willing to consent to adecree on terms that the vendor will make compensationto the purchaser, who agrees to such a decreeon condition that he is compensated. If it is the


Civil Law 95purchaser who is suing, the court holds him to havean even larger right. Subject to considerations ofhardship he may elect to take all he can get, andto have a proportionate abatement from the purchasemoney." * 6The Indian law would thus appear to be the sameas English law in regard to the right of specific performancewhen the part of the contract unperformedis small. As regards the purchaser's right to enforcespecific performance with compensation against thevendor there is, it seems, a material difference betweenthe English and Indian law. Under the Englishlaw if the difference in the value of the subject-matterand its value stated in the contract can be measuredby the court the vendee can have specific performancewith a proportionate abatement in the price. Theprinciple is thus stated by Lord Eldon: " If thevendee chooses to take as much as he can have, hehas a right to that and to an abatement; and thecourt will not hear the objection by the vendor, thatthe purchaser cannot have the whole. But that alwaysturns upon this; that it is and is intended to be thecontract of the vendor." 67 Or as was stated by LordLangdale M.R.: " The general rule, subject to somequalification, undoubtedly is that where a party hasentered into a contract for the sale of more than hehas, the purchaser if he thinks fit to accept that whichit is in the power of the vendor to give is entitled•• Rutherford (Duncan) v. Acton-Adams (William) [1915] A.C.866, at p. 869." Mortlock v. Buller (1804) 10 Ves. 292, 316.


96 The Common Law in Indiato a performance to that extent."" The furthercondition in Indian law that the deficiency should besmall or immaterial is not insisted upon in England.Specific performance with compensation may be directedalthough the deficiency may extend to half ofthe property agreed to be sold. 69When the deficiency is considerable neither underthe English nor under the Indian law can the vendorenforce specific performance with compensation. Thevendee, however, can seek specific performance withcompensation in English law for he can elect to takewhat he can get and ask for compensation for thedeficiency. Under the Indian law, however, when thedeficiency is large the purchaser can have specificperformance only on the condition that he abandonshis right to compensation. This marks a wide departurefrom the English law.When the words of the Indian statute are clearthe rules of English law can be of little assistance inconstruing them. Yet Lord Blanesburgh has pointedout the importance of looking at the rules of theparent system on which the Act is based in interpretingit. " The Act, like the Indian Contract Act,1872, is a code. The Chapter (Part II, Ch. II) inquestion is a codification, with modification deemedto be called for by Indian conditions and procedure,of the then existing rules and practice of English lawin relation to the doctrine of specific performance. Inthe present case, it will aid the interpretation of therelevant sections to have in mind what the English«» Graham v. Oliver (1840) 3 Beav. 124, 128.69 Hooper v. Smart, Bailey v. Piper (1874) 18 Eq. 683.


Civil Law 97system on which the Act is based was in its originand in its fullness at the date of codification." 70NEGOTIABLEINSTRUMENTSIn 1881 came the codification of yet another branchof the law of contract; the law relating to negotiableinstruments. The Act was originally drafted in 1866by the Indian Law Commission and was introducedin the Legislative Council in 1867. The Bill was,however, subjected to considerable criticism and waslargely modified. After several further changes a Billincorporating the revised draft was introduced intothe Council by Whitley Stokes and became the NegotiableInstruments Act of 1881. It is said that theAct in its arrangement follows the book of JusticeByles and is a codification of the English law withsome minor changes. The English Bills of ExchangeAct which was passed a year later has perhaps a morescientific arrangement and clearer and more analyticalprovisions. The difficulty of those who prepared thedraft must, however, be realised. The subject was adifficult one, the law on many points was uncertainand they had not before them any code which theycould follow. In the circumstances it can be saidthat the framers of the Act achieved a fair measureof success.LAW OF REAL PROPERTYA very important measure came to be placed on theStatute Book of India in the year 1882 in the Transfer?« Mama v. Sassoon (1928) 55 I.A. 360, 371, et seq.


98 The Common Law in Indiaof Property Act enacted in that year. Before itsenactment India, it may be said, had no law of anyimportance dealing with real property. A few pointswere covered by the Regulations and the Acts whichwere repealed either wholly or in part by the Statuteof 1882. But for the rest of the law, the courts, inthe absence of any statutory provisions, had adoptedas their guide the English law under the guise of rulesof justice, equity and good conscience. The applicationof the rules of English law to conditions in Indiawhich were totally different had led to confusion andconflicts.The kernel of the Bill which became the Transferof Property Act was the draft made in England bythe Law Commission in 1870. It was a heterogeneousmass containing rules as to " assurances " of immovableproperty; charges; leases; settlements; apportionments;certain rights and liabilities of limitedowners; the discretion of the courts to deal withsettled land; powers; joint ownership; trusts and theassignment of choses in action. The Bill introducedin 1877 in the Legislative Council omitted from thedraft some clauses relating to trusts, powers andsettlements; and other clauses were added with a viewto save the provisions of local laws and usages. TheBill was considered and redrafted by a second LawCommission who, in their report made in 1879, statedthat " the function of the Bill was to strip the Englishlaw of all that was local or historical, and to mouldthe residue into a shape in which it should be suitablefor Indian population and could easily be administeredby non-professional judges."


Civil Law 99Some of the provisions of the Bill were borrowedfrom the enactments which were to be repealed. Butthe Bill was based mainly on the English law of realproperty. The Law of Conveyancing and PropertyAct, 1881, 71 had been enacted in England before theBill was passed into law and some of the provisionsof the Indian Act notably the provisions relating tosale by court of property free from incumbrance, 72the right to redeem separately or simultaneously, 73and the power of sale without the intervention of thecourt 74 were borrowed from that statute. In framingthe sections relating to the law of mortgages of immovableproperty and charges, assistance was takenfrom the work of Dr. Rashbehary Ghose, a distinguishedwriter on the law of mortgages in India. 75At the suggestion of Sir Henry Maine, who was astrong advocate of the Continental system of a publictransfer of land, the Act made written and registeredinstruments obligatory in certain cases of sales, mortgages,leases, exchanges and gifts of immovableproperty. 76The Succession Act and the Contract Act havingbeen put on the Statute Book, the chief purpose ofthis Act was to bring the rules which regulated thetransmission of property between living persons intoharmony with the rules effecting its devolution andthus to furnish as it were a complement to the work" 44 & 45 Viet. o. 41. Transfer of Property Act, 4 of 1882, s. 57.« Ibid., s. 61.•


100 The Common Law in Indiaaccomplished in framing the law of testamentary andintestate succession. Its second purpose was to completethe code of the law of contract in so far as itrelated to immovable property. 77Though the Act covers a large area of the law oftransfer of real property, it does not profess to be acomplete code. It was intended to define and amendthe existing law and not to introduce any newprinciples. 78 When, therefore, the provisions of theAct are not applicable to a case, the courts are entitledto apply rules of English law, not inconsistent withthe Act, as rules of justice, equity and good conscience.Cases arising out of transactions made prior to theapplication of the Act to a particular State would alsobe governed by the principles of the common law."PERPETUITIESA perpetuity in its modern sense denotes an interestwhich will not vest till a remote period. Looked atfrom this point of view, what is now called the ruleagainst perpetuities may perhaps be more appropriatelycalled the rule against remoteness inasmuch asit restrains the creation not of interests which areinalienable or indestructible but rather of futureinterests which are intended to vest absolutely beyondspecified limits of time. 80" Whitley Stokes, op. cit., p. 726." Tajjo Bibi v. Bhagwan Prasad (1918) I.L.R. 16 All. 295.Maharaja of Jeypore v. Bukmini Pattamahevi (1919) 46 I.A.109, 118.80 Ashutosh Mukhopadhyay (later Sir Ashutosh Mookerjee) TheLaw of Perpetuities in British India Tagore Law Lectures,p. 25; Mulla's Transfer of Property Act, 4th ed., p. 102.


Civil Law 101The justification for the rule against perpetuitiesis said to be found in public policy. " It was soonperceived that when increased facilities were given tothe alienation of property, and modes of dispositionunknown to the common law arose ... it was necessaryto confine the power of creating these interestswithin such limits as would be adequate to theexigencies of families without transgressing the boundsprescribed by a sound public policy." 81The common law rule against remoteness of limitation—againsttransfers or bequests to unborn persons—is enacted in section 13 of the Transfer of PropertyAct of 1882 and section 113 of the Succession Act of1925. The English rule against perpetuities is containedin section 14 of the Transfer of Property Actand section 114 of the Indian Succession Act.As to remoteness of limitation, the Act provides thatwhen an interest is created for the benefit of a personnot in existence at the date of the transfer, subjectto a prior interest, the interest for the benefit of theperson not in existence shall not take effect unless itextends to the whole of the remaining interest of thetransferor in the property. In regard to perpetuities,the Act prevents the creation of an interest which isto take effect after the lifetime of one or more personsliving at the date of the transfer and the minorityof some person who shall be in existence at theexpiration of that period and to whom, if he attainsfull age, the interest is to belong.The English rule against perpetuities deals bothwith interests created in praesenti and interests to81 Jarman on Wills, 7th ed., 266n.


102 The Common Law in Indiaarise in futuro. The rule incorporated in the IndianAct deals with interests to arise in futuro only andthere is no express provision prohibiting or dealingwith interests in praesenti which are sought to bemade of indefinite duration. There is a differencealso in the period during which vesting may be delayed;the English law allows twenty-one years ingross after life or lives in being, 82 while the Indianlaw permits only the period of majority after a lifeor lives in being. Some interests created in praesenti,for example, charitable trusts and unfettered presentgifts to perpetual institutions are permissible and validin England. They are regarded as exceptions to therule against perpetuities in so far as that rule appliesto interests in praesenti. Finally, charitable trustsin futuro are no exceptions to the modern Englishrule against perpetuities which deals with estates infuturo. Charitable trusts to be valid in England musttherefore vest within the period allowed by the Englishlaw and if the vesting is delayed beyond that periodthe charitable trust will fail. 83 The position of thesetrusts in India is different. The Act relaxes the ruleagainst perpetuities in respect of transfers of propertyfor the benefit of the public, or for the advancementof religion or knowledge or for any other objectbeneficial to mankind and the vesting of such transfersinter vivos may be delayed beyond the period ofperpetuity. 84 But there is no similar relaxation ofthe rule against perpetuities in the Succession Act.82 Cadell (Thomas) v. Palmer (Arthur), etc. (1833) 1 Cl. & P.372.83 Swain, Re, Monkton v. Hands [1905] 1 Ch. 669.« 4 Transfer of Property Act, s. 18.


Civil Law 108On the contrary, as we have noticed, that Act imposesan additional restriction on charitable or religiousbequests by a person who has near relations. 85PART PERFORMANCEThe doctrine of part performance furnishes a powerfulexample of the influence exercised by the decisionsof courts of equity in England on the developmentof Indian law. Eventually the doctrine became apart of the codified law of India though in a modifiedform.The principle on which the doctrine rests is thatif a man has made a bargain with another, andallowed that other to act upon it, he will have createdan equity against himself which he cannot resist bysetting up the want of a formality in the evidence ofthe contract out of which the equity in part arises. 86In England the doctrine was invoked to take a parolecontract out of the Statute of Frauds. It was said:" Courts of equity will not permit the statute to bemade an instrument of fraud." In India the doctrinehas been invoked to take a document requiringregistration out of the provisions of the Transfer ofProperty and Registration Acts in regard to registration.In a case from India where the defendant hadtaken possession of a parcel of land under a verbalagreement to give a permanent lease at a fixed rentthe Judicial Committee of the Privy Council declaredthat the doctrine of part performance was inapplicable85 Succession Act, s. 118.«• Chaproniere v. Lambert [1917] 2 Ch. 356, 361.


104 The Common Law in Indiain India. 87 The English doctrine in a modified formhas, however, been recognised in India by an amendmentof the Transfer of Property Act made in 1929. 88The Indian law requires that the contract should bein writing signed by the party whom it is sought tobind or his agent. In this it differs from the Englishdoctrine which is applied to parole contracts. Moreover,in England any act, not necessarily the actof taking possession, unequivocally referable to thecontract, is a sufficient act of part performance. InIndia the doctrine cannot be availed of unless thetransferee has been put in possession of the property.Further, except in cases of contracts of lease wherespecific performance may be asked for on the groundof part performance 89 the doctrine of part performancecan be invoked in India by way of defence only.In England it is an active equity which can supportan action for specific performance or injunction torestrain eviction.EQUITY OF REDEMPTIONIn British India the doctrine of equity of redemptionwas, it appears, not originally recognised. In 1870the Privy Council in a case from Madras stated thatthe doctrine was unknown in India. 90 This view wasreiterated by it in a later case, 91 which characterisedthe decisions of the Madras and Bombay High Courts« Ariff v. Jadunath (1931) 58 LA. 91.88Specific Belief Act, s. 53A.8


Civil Law 105to the contrary as instances of the usurpation by thecourts of the functions of the legislature. In view,however, of the current of decisions which had recognisedthe equity in India the Judicial Committeeobserved: "In the case of a security executed since1858, there would be strong reasons for recognisingand giving effect to the Madras authorities withreference to which the parties might be supposed tohave contracted. • . . They deem it right, however,to observe that this state of the law is extremelyunsatisfactory, and one which seems to call for theinterposition of the legislature."The Madras and Bombay courts had, in substance,applied the doctrine recognised by the equity courtsin England. The equity of redemption in Englandwas " a right not given by the terms of the agreementbetween the parties to it, but contrary to them, tohave back securities given by a borrower to a lenderon payment of principal and interest at a day afterthat appointed for payment, when by the terms ofthe agreement between the parties the securities wereto be the absolute property of the creditor." 92 Thatequity was later recognised as a legal right in England.In India this right was given statutory recognitionby the Transfer of Property Act. 93 The right toredeem can be claimed notwithstanding a contract tothe contrary when the principal money of the mortgagebecomes due and subsists until it is put an endto in due course of law." Ewing v. Buttercup Margarine Co. [1892] A.C. 1." s. 60.H.L.—12 8


106 The Common Law in IndiaLEASESThe Indian Act defines the liabilities of a lessor anda lessee in terms which are said to be expressions ofwell settled principles familiar to the law of England. 94The provisions of the Act in regard to leases have tobe judged in the background that the principles ofEnglish feudal law were at no time applicable inIndia. 95 One may illustrate this by reference to theprovisions in the Indian Act recognising contrary tothe law in England a lease in perpetuity. Lest thesettled usages be disturbed, the provisions as to leasesin the Act do not apply to agricultural leases 96 unlessthey are applied by a specific notification. However,in the absence of any local Act or custom or anyspecial reasons to the contrary, the principles ofEnglish law as enacted in the Act have been appliedto agricultural leases. 97CHOSES IN ACTIONThe Act deals also with the transfer of " actionableclaims" which may be described as " choses inaction " in the language of English law. Thus in away the Indian Act seems to recognise the distinctionin England between a chose in action and a chose inpossession. A chose in action in England would includedebts, negotiable instruments, dividends, debentures,94 Transfer of Property Act, s. 108; Indu Bhusan v. Moazam Ali,A.I.B. [1929] Cal. 272.95 Ranee Sonet Kowar v. Mitza Himmut Bahadoor (1876) 3 I.A.92.9697Transfer of Property Act, s. 117.Oangamma v. Bhommakka (1910) I.L.E. 33 Mad. 253; Mulla,Transfer of Property Act, 4th ed., p. 707.


Civil Law 107patents, copyright, bills of lading, legacies and rightsof action arising out of contract or tort. 98 The Indianstatute defines an actionable claim as a claim to anydebt other than a mortgage debt or to any beneficialinterest in immovable property not in the possessionof the claimant. A chose in action in England iseither legal or equitable. But there is no distinctionin India between legal and equitable claims. Thecommon law did not permit the assignment of a chosein action. Certain kinds of choses in action such asbills of exchange and promissory notes became assignablefirst by the custom of merchants and later bystatute. In equity, however, the assignment of achose in action was recognised at an early period.The Indian Act provides for the transfer of actionableclaims." The mode of assignment provided by itcombines the features of both the statutory andequitable modes of assignment in English law. Likethe statutory assignment it has to be in writing andentitles the assignee to sue in his own name. Likeequitable assignments it applies to assignments byway of charge as well as absolute assignments andtakes effect as between the assignor and the assigneefrom the date of the assignment.The Act has been amended several times. In 1929it was subjected to numerous changes. 1 Some of thesections inserted by the Amending Act of 1929 wereborrowed from the English Law of Property Act of1925. It would therefore clearly be permissible to«s Halsbury, 3rd ed., Vol. 4, pp. 480-482, para. 998.» 9 Transfer of Property Act, sa. 130, 131, 132.1 Ibid., ss. 3, 53A, 60A, 60B, 61, 63A, 65A, 67A. 69A, 92, 101.


108 The Common Law in Indiarefer to English decisions under that Act for theinterpretation of these newly introduced sections. 2The Act has not been applied to some parts ofIndia like the Punjab. In these areas the provisionsof the Act as to matters of principle are followed asrules of justice, equity and good conscience.TORTSAn important branch of law which has remaineduncodified in India is the law relating to civil wrongs.Some of the most important rights of a personwhich the law protects from injury are rights to thesecurity of his person, his domestic relations and hisproperty and reputation. The liability for a tort mayarise from intentional wrongdoing, negligence or outof an absolute liability imposed without any defaulton the part of the person held liable. It may be avicarious liability as that of a master for his servant'stort; or a breach of duty under a statute, for example,the duty of an employer under the Factories Act." The law on the one hand allows certain harms tobe inflicted irrespective of the moral condition of himwho inflicts them. At the other extreme, it may ongrounds of policy throw the absolute risk of certaintransactions on the person engaged in them, irrespectiveof blameworthiness in any sense. Most liabilitiesin tort lie between these two extremes." 3 In the lawor tort parties are brought into relation not by mutualagreement but under a general obligation emanating2 Mulla, Transfer of Property Act, 4th ed., p. 2.3 Holmes, Common Law, p. 145.


Civil Law 109from the social duties which the well being of acommunity requires.*One of the outstanding facts of English legal historyfor the last three centuries is the development of thelaw of torts from small beginnings to its presentdimensions as a separate branch of law. The actionfor damages as a remedy for violation of rights andduties has been fashioned by lawyers, judges and juriesof England as an instrument for making people adhereto standards of reasonable behaviour and respect therights and interests of one another. A body of ruleshas grown and is constantly growing in response tonew concepts of right and duty and new needs andconditions of advancing civilisation. The principleswhich form the foundation of the law of torts areusually expressed by saying that injuria sine damnois actionable but damnum sine (or absque) injuriais not. 5 As an illustration of the former rule onemay instance the case in which the House of Lordsheld that a man who has a right to vote at anelection for Members of Parliament may maintain anaction against the returning officer for refusing toadmit his vote." The latter rule may be illustratedby the old case where it was held that the plaintiffwho was a school master had no right to complainof the opening of a new school resulting in the lossof his pupils. 7* Beport of the Committee on the Law of Defamation, 1948, p. 8,para. 12.5 Expressions said to have been first used by Bracton whenanalysing the wrong of nuisance.* Ashby v. White, Sm.L.C, 13th ed., Vol. I, p. 253.* Gloucester Grammar Schools, Y.B.Hil. Hen. 4, f. 47, pi. 21.


110 The Common Law in IndiaIn England the courts and Parliament have contributedto the rationalisation of the law by eliminatingunjust rules which were either the relics of historyor the products of a vanished social order and by theextension of legal liability in response to changingconditions. Thus the House of Lords discarded thetheory of privity which denied justice in manydeserving cases. 7a The Fatal Accidents Act abrogatedthe common law rule which had denied a remedy tothe representative of a person whose death had beencaused by another. The extension of legal liabilitymay be instanced by the extension of the scope ofemployers' liability for their servants' torts, on thebasis of social policy and expediency rather than onany judicial principle. One may refer to the FactoriesActs and Workmen's Compensation Acts. The Englishcourts, taking a further step, have now recognisedthe loss of expectation of life as a distinct head ofdamages besides physical pain and suffering andpecuniary loss resulting from bodily harm. 8A draft of a code of torts for India was preparedby Sir Frederick Pollock but it was never enacted intolaw. In the absence of a code the law of civil wrongsadministered in India is almost wholly the commonlaw of England. So much of the English law asseemed suitable to Indian conditions has been appliedas rules of justice, equity and good conscience.A familiar illustration is the principle enunciatedby the Judicial Committee of the Privy Council as?a Donoghue v. Stevenson [1932] A.C. 562.8 Flint v. Lovell [1935] 1 K.B. 354; Rose v. Ford [1937] A.C.826; Benharn v. Gambling [1941] A.C. 157.


Civil Law 111early as 1872 that in India witnesses cannot be suedin a civil court for damages in respect of evidencegiven by them upon oath in a judicial proceeding. 9The courts in India, however, have not hesitated todepart from the common law rules when they appearedunreasonable or unsuitable to Indian conditions.The doctrine of common employment enunciated inEngland laid down 10 that a master was not liableto a servant who was injured by the wrongful actof a fellow servant who was at the time in commonemployment with him. The English law has undergonea change by the enactment of the Employers'Liability Act, 1880, which has introduced a numberof exceptions to the doctrine. The doctrine wasfinally abolished in England by the Law Reform(Personal Injuries) Act, 1948.In 1937 a High Court in India refused to applythe doctrine. It observed: "In considering what istoday consonant to justice, equity and good conscienceone should regard the law as it is in England today,and not the law that was part of the law of Englandyesterday. One cannot take the common law ofEngland divorced from the statute law of Englandand argue that the former is in accordance withjustice, equity and good conscience . . . the doctrineof common employment would not apply, not becausethe case would fall outside the common law doctrineof common employment, but because it would fallinside the Employers' Liability Act, 1880." " After9 Gunnesh Dutt v. Mugneetam Chowdhry (1872) 11 B.L.R. 328.io Priestly v. Fowler (1837) 3 M. & W. 1." Secretary of State v. Rukhminibai, A.I.E. [1937] Nag. 354,367-368.


112 The Common Law in Indiathis case came the enactment of the Employers'Liability Act by the Indian Legislature in 1938.As an illustration of the rejection by the Indiancourts of English rules which they thought shouldnot apply to India may be mentioned the rule ofEnglish law 12 that although it is possible to bringseparate actions against joint tortfeasors the sums recoverableunder these judgments by way of damagesare not in the aggregate to exceed the amount ofthe damages awarded by the judgment first given."In India the rule has been held to be not in consonancewith any principle of equity, justice and goodconscience.In England both in the law of torts and criminallaw libel and slander stand on a different footing.The distinction between them has not been alteredby the recent legislation in England. 14 In India bothlibel and slander constitute the criminal offence ofdefamation under the Indian Penal Code. 15 There isno statute law in India governing the civil liabilityfor defamation. Such liability has to be determinedeither with reference to the rules of English commonlaw where they are shown to be applicable as in thePresidency Towns or with reference to the principlesof justice, equity and good conscience in othercases.In civil actions for defamation the common law ruleas to the absolute privilege of counsel has been applied12 Law Eeform (Married Women and Tortfeasors) Act, 1935,s. 6 (1) (6)." Nawal Kishore v. Rameshwar, A.I.E. [1955] All. 594, at 595.i* Defamation Act, 1952." s. 499.


Civil Law 113in India. 16 However, if a party to a judicial proceedingis prosecuted in a criminal court for defamationin respect of a statement made by him in judicialproceedings his liability has to be determined by areference to the provisions of the Indian Penal Code.In such cases the court will not by reference to thecommon law be entitled to add exceptions to thosewhich are already enacted in the Code. A personso prosecuted would be entitled only to the benefitof qualified privilege which the Penal Code confers. 17LIABILITY OF THE STATEThe question of the liability of the State in tort hasassumed great importance in the modern welfare State.The increased activities of the State have an impacton the citizen in a far greater degree than before.In England and in the United States the matter isnow regulated by legislation. 18 The tendency inEngland would appear to be towards a greater relaxationof the immunities of the Crown in favour ofthe subject. There would appear to be a feeling thatthe legislation already enacted has not gone far enough.The subject has a long history of legislation andjudicial decisions in India. When the Crown assumedin 1858 the sovereignty of the territories of Indiawhich were till then being administered by the Companyit was provided that: " All persons and bodiespolitic shall and may have and take the same suits,« Jagat Mohan v. Kalipado Ghosh, A.I.R. [1922] Patna 104;Munster v. Lamb (1883) 11 Q.B.D. 588 referred to.»' Satish Chandra v. Ram Doyal De, A.I.E. [1921] Cal. 1.18 Crown Proceedings Act, 1947; the Federal Tort Claims Act,1946.


114 The Common Law in Indiaremedies and proceedings, legal and equitable againstthe Secretary of State for India as they could havedone against the said Company." 19 This provisionwas continued in subsequent Government of IndiaActs. 20 The extent of the liability of the Companybefore 1858 therefore governed the liability of theCrown in India after 1858.The Company was invested with powers of a twofoldcharacter. They had on the one hand powerto carry on trade as merchants; on the other handpowers had been delegated to them to acquire, retainand govern territories, to raise and maintain armies,and make war and peace with native powers in India.Broadly speaking, a distinction was drawn betweenthese two functions of the East India Company, ithaving been held that it was liable to be sued inrespect of the former kinds of functions but not inrespect of the latter. Its liability to be sued was not,however, altogether restricted to claims arising out ofundertakings which might be carried on by privatepersons. It was extended to other claims also if theydid not arise out of acts of State or had referenceto actions of the Company done under sanction ofmunicipal law and in exercise of powers conferred bysuch law. The Supreme Court of India had occasionrecently to deal with the matter and it accepted theview taken in some of the earlier decisions of theIndian courts. 2119 Government of India Act, 1858, s. 65.20 Government of India Act, 1915, s. 32; Government of IndiaAct, 1935, s. 176 (1)." Province of Bombay v. K. S. Advani (1950) S.C.E. 621, 694,695; Md. Khasim Bahadur v. John Coolier (1882) I.L.K. 5Mad. 273.


Civil Law 115Dealing with the question as to what amountedto an act of State the court quoted with approvalLord Atkin 22 : " This phrase (act of State) is capableof being misunderstood. As applied to an act of thesovereign power directed against another sovereignpower or the subjects of another sovereign power notowing temporary allegiance, in pursuance of sovereignrights of waging war or maintaining peace on the highseas or abroad, it may give rise to no legal remedy.But as applied to acts of the executive directed tosubjects within the territorial jurisdiction it has nospecial meaning, and can give no immunity from thejurisdiction of the court to inquire into the legalityof the act." In a later decision the Supreme Courtobserved 2S : " Such an act of State was described inelegant phrase by Fletcher Moulton L.J. in Salamanv. Secretary of State, 2i as ' a catastrophic changeconstituting a new departure.' It is a sovereign actwhich is neither grounded in law nor does it pretendto be so. Examples of such ' catastrophic changes 'are to be found in declarations of war, treaties,dealings with foreign countries and aliens outside theState. On the desirability or the justice of suchactions the municipal courts cannot form any judgment.In civil commotion, or even in war and peacethe State cannot act ' catastrophically' outside theordinary law and there is legal remedy for its wrongfulacts against its own subjects or even a friendlyalien within the State."22 Eleko v. Officer Administering the Government of Nigeria[1931] A.C. 662, 671.23 State of Saurastra v. Memon Haji Ismail (1960) 1 S.C.R. 531,544. « [1906] 1 K.B. 613, at 640.


116 The Common Law in IndiaThe State is thus not liable in tort in India foran act of State. The law in England and the UnitedStates would seem to be disinclined to recognise theexistence of an indefinite class of acts concerningmatters of high policy or public security which maybe left to the uncontrolled discretion of the Governmentand kept outside the jurisdiction of the courts.The question of the liability of the State in tortwas recently taken up for consideration by the LawCommission of India. It considered the existing lawin India and the law in England and other countrieson the subject. The view that it formed was thatthough the Crown Proceedings Act in England wasmore liberal in its provisions than the legislation inthe United States its scope in respect of statutoryduties and powers was very restricted. The Commissionhas recommended legislation in India making theState liable in tort in a number of specified mattersand imposing liability on a much wider scale thanunder the Crown Proceedings Act in England.We have passed in brief survey the series of theimportant Anglo-Indian Codes through the media ofwhich large sectors of the English common and statutelaw have infiltrated into India and established themselvesas the core of the Indian statutes. We hadalso a view of the Indian law in an area not coveredby a Code such as that of civil wrongs. Here theEnglish common and statute law holds the field evenin a greater degree.Adjective law in India owes almost as much toEnglish law as India's substantive law.The law of evidence found scattered in the English


Civil Law 117textbooks was codified in India in the year 1872.Mr. Stephen (later Sir James Stephen) in presentingthe report of the Select Committee on the Bill claimedthat it would be found to embrace arranged in theirnatural order the subjects treated by English textwriters and judges under the general head of the" Law of Evidence." 25 The law of evidence wascodified in India on the basis of the English lawkeeping in view as in the case of the other Codesthe differences between the English practice mouldedby English social conditions and procedures and theconditions then obtaining in India.The codification of the procedure of the civil courtsof the whole country was first made by the CivilProcedure Code of 1859. This was followed by successiveCodes and eventually came the Civil ProcedureCode of 1908 which now regulates proceedings in civilcourts. The chief feature of the Code of 1908 is itsdivision into two parts on the lines of the JudicatureActs and the rules of the Supreme Court framed underthese Acts. Here again we have a procedural systemwhich broadly follows the base of English proceduremodifying it to suit Indian conditions.To sum up, the base and the foundation of thecivil law of India is English common and statutelaw. But the structure reared on that foundation hasbeen so adapted to Indian needs and conditions thatit may, notwithstanding its exotic origin, be regardedas peculiarly Indian in its form as well as in itsworking.25 Sir J. Woodroffe, Law of Evidence, 9th ed., p. 1109.


CHAPTEB 3CRIMINAL LAW" THE Indian Penal Code may be described as thecriminal law of England freed from all technicalitiesand superfluities, systematically arranged and modifiedin some few particulars (they are surprisinglyfew) to suit the circumstances of British India," saidStephen. 1 Sir Frederick Pollock thought that sucha description of the Code was perhaps an overstatement.But even he was of the view, as we haveseen above, that the Code was " English criminal lawsimplified and set in order." It is pertinent to thisstudy to examine how far the Code has in fact derivedin its basic principles from the criminal law ofEngland.CRIMINAL LAW BEFORE THE CODEWe have seen how when the Company took theadministration of criminal justice into its hands afterthe assumption by it of the Dewani in 1765 it continuedthe Mahomedan criminal law which had tillthen been applied by the Nazims. " It was appliedin Bengal, in Madras, and, later on, in other partsof India, though not in Bombay, to Hindus as wellas to Moslems." 2 Thereafter came slow attempts bythe Company to alter and reform the criminal law.Many of the punishments provided by the Mahomedan1 History of Criminal Law of England, Vol. 3, p. 300.2 Bankin, Background to Indian Law, p. 164.118


Criminal Law 119criminal law were barbarous. In 1773 Hastings madeproposals for the reform of the criminal law with aview to correcting these cruel punishments. In 1790Lord Cornwallis, the successor of Hastings, recordedthat " The general state of the administration ofcriminal justice throughout the Provinces is exceedinglyand notoriously defective," 3 and made proposalsfor the enactment of Regulations reforming thecriminal law. In 1793 was enacted what has beenknown as the Cornwallis Code which was in effect " thecriminal procedure code, but it included the necessaryamendments of the Mahomedan law, restating theenactments of the last three years in that behalf." 4Large territories forming part of the Province ofBombay had not before their acquisition by theCompany been under Moslem rule and the administrationof criminal justice there had proceeded onlines different from those in Bengal and Madras. TheBombay system is thus described by Elphinstone in1822:" We do not as in Bengal profess to adopt the Mohammedancode. We profess to apply that code to Mohammedan persons,the Hindoo code to Hindoos, who form by far the greatest partof the subjects. The Mohammedan law is almost as much adead letter in practice with us as it is in Bengal, and the Hindoolaw generally gives the Raja on all occasions the choice of allpossible punishments. . . . The consequence is that the judgehas to make a new law for each case." 5Impressed with the need for a better and more uniformsystem of law Elphinstone, who was said to be a greata Ibid., p. 170.4 Eegulation IX of 1793; Rankin, op. cit., p. 171.* Life of Elphinstone, by Sir T. B. Colebrooke, 1882, Vol. II,p. 125; quoted in Rankin, op. cit., p. 185.


120 The Common Law in Indiaadmirer of Bentham, enacted when he became Governora series of Regulations which came to be knownas the Elphinstone Code. This was mainly the resultof the labours of Sir William Anderson who laterbecame one of the colleagues of Macaulay on the firstIndian Law Commission. The Bombay Code of 1827has been described as " a great advance upon anythingpreviously attempted in India, and served to prove,by thirty years' experience of its working, that therewas no difficulty in applying a general code, foundedupon European principles, to the mixed populationsof India." 6 This was followed by Regulation XIVof 1827 which included a penal code. The regulationhas been described by FitzJames Stephen as " a bodyof substantial criminal law which remained in forceuntil it was superseded by the Criminal Code (thatis, the Indian Penal Code) and which had veryconsiderable merits." 7Thus when the Charter Act of 1833 introduced asingle legislature for the whole of British India withjurisdiction to legislate for persons in the PresidencyTowns as well as the mofussil, the state of lawsgenerally and particularly of criminal law was extremelyunsatisfactory. The Regulations which hadattempted to build up a system of laws in differentparts of the country were described by Morley as " anincongruous and indigested mass." 8 "At this timeeach of the three Presidencies enjoyed equal legislative6 Quoted in Eankin, op. cit., p. 195.7 Quoted in Kankin, op. cit., p. 195.8 Administration, of Justice of British India, 1858, p. 158;Digest, Vol. 1, p. civ; quoted in Eankin, op. cit., p. 197.


Criminal Law 121powers; though the Governor-General possessed aright of veto over the legislation of the subordinategovernments, it had in fact been little exercised. Thushad come into existence three series of Regulations,as these enactments were called, frequently ill-drawn,for they had been drafted by inexperienced personswith little skilled advice; frequently conflicting, insome cases as a result of varying conditions but inothers merely by accident; and in all cases enforceableonly in the Company's courts because they hadnever been submitted to and registered by the King'scourts." 9These comments directed generally to Regulationsapplied with equal force to the criminal law administeredin the three Presidencies. Inevitably, with thefunctioning of different legislative authorities in thethree Presidencies, there was a complete lack ofuniformity in the law applied in the mofussil. Moreover," Side by side with the penal law, thus variouslyadapted to the country districts of the Provinces, thelaw of England remained in the three PresidencyTowns the basis of the criminal jurisdiction of theSupreme Courts untouched by any regulations." 10Calling attention to these divergent laws the firstIndian Law Commission of 1837 said: " It is noticed,for example, as regards forgery and perjury that inBengal serious forgeries were punishable with doublethe term of imprisonment for perjury; in Bombayperjury was punishable with double the imprisonment9 Cambridge History of the British Empire, Vol. V, p. 5;quoted in Rankin, op. cit., at p. 198.10 Rankin, op. cit., p. 198.H.L.—12 9


122 The Common Law in Indiaprovided for the most aggravated forgeries; whilein Madras the two oflences were exactly on the samefooting."" Illustrations of similar contradictoryprovisions can be multiplied. Whitley Stokes hasobserved that these regulations contained " widelydifferent provisions, many of which were amazinglyunwise." 12 In the words of Lord Bryce " Thecriminal law became a patchwork of enactments soconfused that it was the first subject which invitedcodification." lsAppreciating this chaotic state of affairs and theimperative need for uniformity and reform, Parliamentby the fifty-third section of the Charter Act of 1883appointed the first Indian Law Commission recitingthat it was expedient to enact " such laws as may beapplicable in common to all classes of the inhabitantsof the said territories, due regard being had to therights, feelings and peculiar usages of the people."THE PBEPARATION AND PASSING OF THE CODEThe decision that the penal law in India should befirst selected for codification was made by Macaulay.His speech on the second reading of the Bill whichultimately became the Charter Act of 1833 is justlycelebrated " and his work in India as the first legalmember of Council had effects both lasting andextensive." 14 The minutes recorded by him as the» Ibid., p. 199.12 Stokea, Anglo-Indian Codes, Vol. I, p. 2.13 Studies in History and Jurisprudence, Vol. I, p. 120; quotedin Bankin, op. cit., p. 199.14 Rankin, op. cit., p. 201.


Criminal Law 123legal member, full of erudition and couched in hisincisive English, are to be found in the archives ofthe Ministry of Law and are still read with interest.Some of them were recently referred to and quotedin the Report of the Indian Law Commission of 1955.It may be said without injustice to any of hiscolleagues on the first Indian Law Commission thatthe draft of the Indian Penal Code may be attributedto him.One may refer to the distinguished men who assistedMacaulay in the compilation of this code, the mosttowering structure in the pile of Indian Codes whichhas served the country for a hundred years. Perhapsthe most distinguished of his colleagues was CharlesHay Cameron who has been described by LeslieStephen as " a disciple and ultimately the last discipleof Jeremy Bentham." He later became a Law Memberof the Governor-General's Council. Two othercolleagues were John Macpherson Macleod and GeorgeWilliam Anderson who were distinguished civil servantsfrom Madras and Bombay. Anderson becamelater a judge of the Company's chief Court of Appeal.Cameron and Macleod were also members of the LawCommission appointed under the Act of 1853 whichsat in England. Macleod was a member also of laterCommissions which drew up drafts of other laws whichwere later codified.Though the Code did not reach the Statute Booktill 1860 it appears that Macaulay had succeeded infinishing the draft of the Code as early as 1837. Ina letter written by him on June 15, 1837, he stated:" The Penal Code of India is finished and is in the


124 The Common Law in Indiapress. The illness of two of my colleagues threw thework almost entirely on me." 15 The delay in enactingthe Code and other laws the drafts of which weredrawn up by later Commissions are attributed to thedifficulties of government in those times, which threwthe reform and codification of the law into the background.Indeed at one time it appeared that the ideaof enacting it might be abandoned. A governmentofficial wrote to the Law Commission asking them torevise their draft with a view to its adoption withamendments " or to its final disposal otherwise."The story of the delay in its enactment, the carefulrevision which the draft received and its ultimateadoption may be told in the words of Stephen:" Then came the Mutiny which in its essence was thebreakdown of an old system. . . . The effect ofthe Mutiny on the Statute Book was unmistakable.The Code of Civil Procedure was enacted in 1859. ThePenal Code was enacted in 1860 and came into operationon January 1, 1862. The credit of passing thePenal Code into law, and of giving to every part of itthe improvements which practical skill and technicalknowledge could bestow is due to Sir Barnes Peacock,who held Macaulay's place during the most anxiousyears through which the Indian Empire has passed." 16That the Code " has established itself as aneminently successful code of law both in India andelsewhere may now be affirmed without fear of contradiction,"says Sir George Rankin. He continues:15 Sir G. O. Trevelyan's Life of Macaulay, Vol. I, p. 417; quotedin Rankin, op. cit., p 201.« Ibid., pp. 417-418; Bankin, op. cit., p. 202.


Criminal Law 125" It is working as law in so many parts of the worldthat it may be regarded as having passed the highestobjective test. ... Its merits are acknowledged soungrudgingly that one would hardly have supposedthat a body of rules could have commanded so muchadmiration for being comprehensible and concise. Thepraise of its form is due in part to the reasons whichmake specially acceptable in India a system whichguards the liberty of the subject by showing in anexhaustive series of plain statements what acts andomissions are by the law made punishable." "ITS GROUNDWORKMacaulay intended that his draft of the code shouldnot be based on any existing system of criminal law.The English criminal law as it stood in 1837 wasalmost " savagely unjust " in the punishments whichit prescribed for ordinary offences. The use of capitalpunishment was also in many respects unjust andindiscriminate. These features almost gave it the appearanceof an uncivilised law and made one forget itsmerits which consisted in " its precise definition ofoffences and in the common sense of the distinctionswhich judges had developed in charging juries."Macaulay's speeches and writings show that he alwaysregarded English criminal law as needing drasticreformation. "In a letter written at the age ofeighteen to his father, whose name is still held inhigh esteem as a reformer, he refers to Sir Samuel" Sir G. 0. Trevelyan, op. cit., Vol. I, pp. 417-418; Eankin, op.cit., pp. 202-203.


126 The Common Law in IndiaRomilly's death in terms coloured no doubt by hisfather's philanthropic zeal: ' How long may a penalcode, at once too sanguinary and too lenient, halfwritten in blood like Draco's and half undefined andloose as the common law of a tribe of savages, bethe curse and disgrace of the country? ' " ls Withso strong a bias against the English criminal law itis not surprising that the Commissioners in theircovering letter to the draft of the report emphaticallycondemned not only the criminal law of the Hindus,of the Mahomedans, and of the Regulations, but alsothe criminal law of England. It was pronounced tobe "so defective that it can be reformed only bybeing entirely taken to pieces and reconstructed." 19The letter proceeds to state that " under these circumstanceswe have not thought it desirable to takeas the ground work of the Code any of the systemsof law now in force in any part of India. We haveindeed to the best of our ability compared the codewith all those systems and we have taken suggestionsfrom all; but we have not adopted a single provisionmerely because it formed a part of any of thosesystems." 20But, as has been said, Macaulay was unaware thatthe English law was " the basis of his thinking—themine which he was working." 21 Notwithstanding hisdeeply felt and constantly expressed opinion of theEnglish law then in force, there can be no doubt thatthe substance of the code is taken from the English18Trevelyan, op. cit., Vol. I, p. 89; quoted in Rankin, op. cit.,at p. 207.19Letter to Lord John Russell, January 19, 1837.20 Eankin, op. cit., p. 206. " Ibid., p. 207.


Criminal Law 127law. Stephen thought that " The draft and therevision are both eminently creditable to their authors;and the result of their successive efforts has been toreproduce in a concise and even beautiful form thespirit of the law of England; the most technical,the most clumsy, and the most bewildering of allsystems of criminal law. . . • His draft gives thesubstance of the criminal law of England, down to itsminute working details, in a compass which by comparisonwith the original may be regarded as almostabsurdly small." 22 Lord Bryce thought that " thedeviations from English rules which may be found init do not affect the general proposition that it issubstantially English." 23 Whitley Stokes says "asin the case of the other codes ... its basis is thelaw of England, stript of technicality and localpeculiarities, shortened, simplified, made intelligibleand precise. . • ." 24 Sir Henry Maine has referredto the Code as " that admirable Penal Code whichwas not the least achievement of Lord Macaulay'sgenius and which is undoubtedly destined to servesome day as a model for the criminal law ofEngland." 25 It appears that Macaulay and his colleagues,striving all the time to keep away from theestablished systems of criminal law, and particularlythe English system, so that they might arrive at aresult truly suited to India's needs, travelled unconsciouslybut inevitably along the track of principles22Trevelyan, op. cit., Vol. I, p. 417; Eankin, op. cit., p. 204.23 Studies, Vol. 1, p. 126.21 Anglo-Indian Codes, Vol. I, p. 71.25Village Communities in the East and West, 1871, p. 115.


128 The Common Law in Indiain which they had been trained and to which theywere accustomed.Nevertheless it is true, as has been stated in oneof the notes appended to the draft of the Code, thatno law " has any claim to our attention except thatit may derive from its own internal excellence." Howthe basic groundwork of English law has remainedunaffected in spite of the changes worked into it byway of improvement, modification and simplificationhas been clearly illustrated by Sir George Rankin." The notes upon each chapter do firmly impressupon the reader that, greater even than the modificationof English rules which were directed to meetspecialities of Indian conditions, were those whichare due to an opinion that the various rules of lawin force in England were capable of improvement andsimplification. Right reason and not local colouraccounts for most of the departures. It is impossibleto simplify without amending; and if on each topicone set oneself to note all the variations, one mighteasily end by losing sight of the groundwork thathad been left untouched. Thus theft (section 378)differs from larceny in England in a number ofrespects, e.g., intention to deprive the owner of hisproperty is not a necessary element. But who wouldfail to recognise the English legal notion behind theEnglish word, though ' asportation ' is not mentioned,when he reads ' whoever intending to take dishonestlyany movable property . . . moves that property inorder to such taking.' Again, in the offence ofdefamation (section 499) no difference is made betweenspoken and written words: in Macaulay's draft it was


Criminal Law 129proposed that truth should be a complete defence butthis suggestion was not in the end adopted. With orwithout such amendments—small differences may bethe most confusing—who would fail to see that section499 is a revision of the English law? " 26These examples indicate not only that basic Englishnotions underlie most of the crimes defined in theCode but also that these basic notions have beensimplified and modified with care to adapt them toIndian conditions.SOME OF ITS FEATURESA remarkable feature of the Code is its use of " themost ordinary English terms to distinguish the differentoffences, thus giving point and precision to theEnglish language and making for accuracy of thoughtin practical affairs." " Rarely have the definitionsof crime in the Code been commented upon as wantingin clarity or precision.The Code employs illustrations in order to explainthe true ingredients of the crime set out in its sections.These are said to be "a device suggested byBentham." The question whether these illustrationsreally help in understanding the real elements of thedefinitions has been a matter of considerable controversy.Indeed it has been doubted whether muchof the clarity of the Code is due to the employmentof illustrations. 28 On the other hand, the Indian" Rankin, op. cit., p. 208.2? Ibid., p. 203.2 8 Ibid., p. 203.


180 The Common Law in Indiareports are full of decisions which show that the courtshave frequently used the illustrations in determiningthe true elements of the offence set out in its provisions.One would, therefore, be entitled to inferthat the illustrations have really served the purposefor which they were enacted.The Commission made it clear in the letter whichaccompanied their original draft that " the definitionsand enacting clauses contain the whole law. The illustrationsmake nothing law which would not be lawwithout them." They say further that " our illustrationsare never intended to supply any omission inthe written law." 29 A different view seems howeverto have been taken of such illustrations by the authorsof the later codes who also made extensive use ofthem. They regarded the illustrations as " not merelyexamples of the law in operation but . . . the lawitself showing by examples what it is." It was saidthat, as law could be made by judicial decisions, socould it be made by illustrations inserted in the bodyof a code.Crimes are divided in England into treasons,felonies and misdemeanours. 30 Indeed the whole2» Quoted in Bankin, op. cit., p. 203.30 " Treasons are offences against the state, against the personof the sovereign and his consort and the heir apparent.Felonies, whilst not being such a select class are still definitelyupper class in the sociology of crime. They are the actswhich mankind has recognised as far back as Old Testamentdays as so gross and provocative that immediate steps mustbe taken to discourage those who commit them—murder,manslaughter, rape, burglary and stealing are examples.Misdemeanours are a great residual class. Crimes which arenot treasons or felonies are misdemeanours. They are largelymade up of minor offences dealt with summarily in the


Criminal Law 131calendar of crimes is a great mix-up of felonies andmisdemeanours. It is not easy to discover anyprinciple on which this division into felonies and misdemeanourshas been arrived at. It can be explainedonly on the basis of historical considerations. 31Offences may be arranged under the broad divisionof offences against the person of the individual, theproperty of the individual and the public rights. 32The Indian Code has adopted a somewhat similar butmore detailed division.THE SCHEME OF THE CODEThe scheme of the Code is to divide offences intodifferent categories and deal with them in separatechapters. We have, for example, offences against thestate 33 such as waging war against the Governmentof India and sedition. We have also offences relatingto the army, navy and air force 34 such as abettingmutiny and harbouring deserters from the army. Wehave next offences against the public tranquillity 35such as being a member of an unlawful assembly andrioting. Offences by or relating to public servants 36such as a public servant taking an illegal gratification,disobeying a law with a certain intent or unlawfullymagistrates' courts; but, disconcertingly enough, they alsoinclude offences of the greatest gravity, such as, perjury,fraud, wounding, certain offences of forgery, coinage, andso on." F. T. Giles, The Criminal Law, 1954, 78, 79. SeeHalsbury, 3rd ed., VoJ. 10, pp. 293-294, paras. 548, 549.31 Kenny's Outlines of Criminal Law, 16th ed., 1952, by Turner,pp. 96-98.32 Ibid., p. 100.3


132 The Common Law in Indiaengaging in trade are put together in a class. Thereis also a class of offences which consists of contemptsof the lawful authority of public servants. 37 Theseinclude non-attendance in obedience to an order froma public servant, or disobedience to an order madeby him or a threat of injury to a public servant.An important chapter of the Code deals with offencesaffecting the human body such as offences againstlife, hurt, wrongful restraint, criminal assault andkidnapping. An equally important chapter of theCode concerns offences against property such as theft,extortion, robbery, criminal breach of trust, mischiefand criminal trespass. We have chapters also dealingwith offences concerning elections, coin and Governmentstamps, weights and measures and offencesrelating to religion. Then we have offences relatingto marriage. One of the concluding chapters dealswith the offence of defamation which correspondsbroadly with the crime of criminal libel in England.This general but illustrative enumeration serves togive one an idea of the wide and exhaustive sweepof the Code. There is little doubt that the repeatedrevisions to which the draft of 1887 was subjectedbefore its enactment into a Code in 1860 helped tomake it the perfect Code that it has been found to beby experience.Many of the offences in the Code are crimes inEnglish law like manslaughter, larceny and criminallibel which have been given different names with theiringredients adapted to Indian conditions. Some,which have their origin in the social, economic and" Indian Penal Code, Chap. X.


Criminal Law 133religious life of India, have no counterparts in theEnglish system. An interesting comparison of thetwo systems made in 1890 showed as many as eightyfourvariations some of which were undoubtedlytraceable to the fact that in India the law was whollycodified. 38The basis of the Code is said to lie in its secondsection which provides that " Every person shall beliable to punishment under this Code and not otherwisefor every act or omission contrary to the provisionsthereof." 39 In its various sections the Codeproceeds to deal with the acts or omissions whichaccording to its provisions would be offences, definingin each case the elements constituting the offence andproviding the punishment for it.We may illustrate this by a reference to the offenceof theft. If a person " intending to take dishonestlyany movable property out of the possession of anyperson without that person's consent moves thatproperty in order to such taking " he is said to havecommitted theft. A dishonest intention to take theproperty is an essential element in the offence. Thefurther necessary elements are that the property mustbe movable, it should be taken out of the possessionof another person, it should be so taken without hisconsent and there must be a moving of the propertyfor the purpose of taking it. The punishment prescribedis a maximum of three years' imprisonmentor a fine or both. 1038Sir Eonald K. Wilson, Comparative Tables of English and39Indian Law, London, pp. 7-12. Kankin, op. cit., p. 203.40 Indian Penal Code, as. 378-379.


134 The Common Law in IndiaOne may compare the Indian offence of theft withthe offence known in English law as larceny to whichit corresponds. The Larceny Act of 1916 gave adefinition of stealing but not a definition of larceny.The definition did not, however, make any changein the common law offence of larceny as then understood.A person " Who, without the consent of theowner, fraudulently and without a claim of rightmade in good faith, takes and carries away anythingcapable of being stolen with intent, at the time ofsuch taking, permanently to deprive the ownerthereof" was said to have stolen that thing. Aperson may under that definition be guilty of stealinga thing notwithstanding that he is lawfully in possessionof it if being a bailee or part-owner of it heconverts it to his own use. The offence of theftunder the Indian Code differs substantially from theoffence of larceny in English law. The Indian Codeemphasises the possession of the person from whomproperty is stolen, whereas the English definition isconcerned with the owner of the property. In Indiaa theft may be committed though the person fromwhom the thing is taken has no title to it, but in thecase of larceny the owner should have some generalor special ownership in it. There are other substantialdifferences also in the elements of the two offences.Yet the basic idea of the Indian offence of theft isno other than that which underlies the offence oflarceny at common law. We have the element ofthe subject-matter of the theft being somethingmovable. There is also the idea of movement orwhat is known in English law as " asportation." We


Criminal Law 135have also in the Indian definition a guilty mind orintent in the words " intending to take dishonestly,"which in the English definition is comprehended inthe words " fraudulently and without a claim ofright made in good faith." Finally, we have alsothe essential that the moving or the taking must bewithout the consent of the possessor in the one caseand the owner in the other.All offences are defined with precision in the Code.The definition states not only the act or omissionwhich is regarded as a crime but also the state ofthe mind of the person who does the act or omitsto do it, and which is an essential element in theoffence. The definition clauses use expressions suchas "knowingly," "voluntarily," "fraudulently,"" dishonestly " or " in good faith." In cases whenit is intended that in order that an act may be acrime it should be done with a specific knowledgeor intention, the definition proceeds to state exactlywhat the person concerned should have known orintended. For example, a person is said to cheatanother person if he " by deceiving any person fraudulentlyor dishonestly induces the person so deceivedto deliver any property to any person, or to consentthat any person shall retain any property." 41 Thestatement of the elements of the offence of " voluntarilycausing hurt" carries us a step further. Thedefinition of that offence provides as an element thespecific knowledge that a person must have in orderto be guilty of that crime. A person is said " voluntarilyto cause hurt" to another person if he " does« Indian Penal Code, s. 415.


186 The Common Law in Indiaany act with the intention of thereby causing hurtto any person, or with the knowledge that he waslikely thereby to cause hurt to any person and doesthereby cause hurt to any person."How do we know the meaning of these expressionsused in describing the necessary state of mind of theoffender ? When is a person said to act " dishonestly "or "fraudulently" or "in good faith"? The Codehas taken care to define these terms in a chapterheaded " General Explanations." A person is saidto do a thing " dishonestly " if he does it with theintention of causing wrongful gain or wrongful lossto another person. Wrongful gain is gain by unlawfulmeans of property to which the person gaining is notlegally entitled. The opposite of it is wrongful loss,being loss caused by unlawful means of property towhich the person losing it is legally entitled.* 2 Athing is done fraudulently if it is done with intentto defraud but not otherwise. 43 But the term " defraud" is not defined in the Code. As to " goodfaith " the Code provides that nothing is said to bedone or believed in good faith which is done orbelieved without due care and attention. Thus didthe authors of the Code try " to prevent captiousjudges from wilfully misunderstanding the Code andcunning criminals from evading its provisions." 44Though the basic ideas underlying these expressionsare not dissimilar to the English understanding ofthese terms the Code has invested some of them with*2 Indian Penal Code, ss. 23-24.« Ibid., s. 25.** Whitley Stokes, Anglo-Indian Codes, Vol. 1, pp. 10-11.


Criminal Law 137a special meaning. Under the Indian General ClausesAct 45 a thing is deemed to be done in good faithwhere it is in fact done honestly whether it is donenegligently or not. That is a definition borrowedfrom an English statute. 46 But the Code has defined" good faith" negatively and emphasised not thehonesty of the action but the care and attention withwhich it is done. Notwithstanding, however, thesedifferences, owing no doubt to the fundamental notionswhich underlie these expressions, Indian courts haveon occasions referred to English decisions in interpretingthem.MENS REAThe recognition of a mental element in criminalliability is inherent in the English common law. Thetraditional maxim " actus non facit reum nisi menssit rea" expresses, it has been said, a cardinaldoctrine of English law. 47 Lord Kenyon C.J. saidthat the maxim was " a principle of natural justice,and of our law. . . . The intent and the act mustboth concur to constitute a crime." The maxim,accepted in the English courts for centuries, recognises,it is said, " that there are two necessaryelements in crime, a physical element and a mentalelement." At common law no man may be foundguilty of crime unless, in addition to an overt actwhich the law forbids or default in doing some actwhich the law enjoins, he had at the time a legally« Act X of 1897, a. 3 (22).«• (45 & 46 Viet. o. 61) Bills of Exchange Act, 1882, s. 90.** Younghusband v. Luftig [1949] 2 K.B. 354, 370, GoddardL.C.J.H.L.—12 10


138 The Common Law in Indiareprehensible state of mind that is to say mens reaor a guilty mind. 48As was observed by Wills J. " The guilty intentis not necessarily that of intending the very act orthing done and prohibited by common or statute law,but it must at least be the intention to do somethingwrong. That intention may belong to one or otherof two classes. It may be to do a thing wrong initself and apart from positive law, or it may be todo a thing merely prohibited by statute or by commonlaw, or both elements of intention may co-exist withrespect to the same deed." 49 It would appear,however, that, with modern statutes which define withprecision the elements in an offence and considerationsof policy which make it necessary to treat eveninnocent acts as crimes, the application of the maximis not so universal as it was at one time. Said WillsJ. in the same case that " Although prima facie andas a general rule there must be a mind at fault beforethere can be a crime, it is not an inflexible rule, anda statute may relate to such a subject-matter and maybe so framed as to make an act criminal whetherthere has been any intention to break the law orotherwise to do wrong or not. There is a large bodyof municipal law in the present day which is soconceived. . . . Whether an enactment is to beconstrued in this sense or with the qualification ordinarilyimported into the construction of criminalstatutes, that there must be a guilty mind, must,48 Kenny's Outlines of Criminal Law, op. tit., pp. 12-13, 35;Halsbury, 3rd ed., Vol. 10, pp. 272-273, para. 505.*» The Queen v. Tolson (1889) 23 Q.B.D. 168, 185, 186, 187.


Criminal Law 139I think, depend upon the subject-matter of the enactment,and the various circumstances that may makethe one construction or the other reasonable or unreasonable."The true position in regard to mens reain statutory offences would appear to be as stated inHalsbury. 50 " A statutory crime may or may notcontain an express definition of the necessary state ofmind. A statute may require a specific intention,malice, knowledge, wilfulness, or recklessness. On theother hand, it may be silent as to any requirementof mens rea, and in such a case in order to determinewhether or not mens rea is an essential element ofthe offence, it is necessary to look at the objects andterms of the statute. In some cases, the courts haveconcluded that despite the absence of express languagethe intention of the legislature was that mens rea wasa necessary ingredient of the offence. In others, thestatute has been interpreted as creating a strictliability irrespective of mens rea."Unlike in England all offences in India, exceptingcontempts of the courts of record like the SupremeCourt and the High Courts, are statutory. Theoffences defined in the Penal Code and also in variousother statutes incorporate in the definition of theoffence itself the guilty mind needed in order thatthe crime may be committed. Under the Englishcommon law mens rea may vary from crime to crime.So does it vary in the Indian statutory definitions ofcrime. What the Indian Code seems to have done isto incorporate into the common law crime the mens50 Halsbury, Laws of England, 3rd ed., Vol. 10, p. 273, para. 508.


140 The Common Law in Indiarea needed for that particular crime so that the guiltyintention is generally to be gathered not from thecommon law but from the statute itself. This maybe regarded as a modification of the common lawworked into the Code by Macaulay and his colleaguesto make it suit Indian conditions. By adopting thiscourse they have also avoided the doubt and obscuritywhich has not infrequently arisen in regard to themens rea required for certain common law crimes likehomicide, assault and false imprisonment. It hasbeen pointed out that the English system, in whichchanges in the law are made gradually by judicialdecisions, has often created a situation in which oldand new doctrines have been employed in the courseof the same period, according as the judges are inclinedone way or the other, giving rise to conflictingprinciples with puzzling results. 51 Such uncertaintycannot exist in India as the necessary guilty mindis indicated in the statutory definition of the crime.In a sense, therefore, it may be said that the maxim" actus non facit reum nisi mens sit rea " has, as amaxim, no application to offences under the Code.By specifying the varying guilty intention for eachoffence the Code has in effect built the maxim intoeach of its definitions and given it statutory effect.Where the Code omits to indicate a particular guiltyintent, the presumption, having regard to the generalframe of the definitions, would be that the omissionmust be intentional. In such cases it would perhapsnot be permissible to import the maxim in arriving51 Kenny, Outlines of Criminal Law, op. cit., p. 25.


Criminal Law 141at a conclusion whether the person charged with thatparticular offence has been guilty.Where statutes do not specify the requirement of aparticular intent of a guilty mind or are silent, thecourts in India have followed the rule applied inEngland to the construction of such statutes.In a case where a master was held criminally liablefor the default of his servant in charging a priceabove the maximum fixed under one of the Defenceof India Rules, the High Court took the view that,even if the master had not been proved to have knownof the unlawful act of the servant, he would still beliable on the ground that where there is an absoluteprohibition no question of mens rea arises. TheJudicial Committee of the Privy Council 52 expressedits dissent from this view and quoted the observationsof Lord Goddard 53 Lord Chief Justice. " It is of theutmost importance for the protection of the liberty ofthe subject that a court should always bear in mindthat, unless a statute either clearly or by necessaryimplication rules out mens rea as a constituent partof crime, the court should not find a man guilty ofan offence against the criminal law unless he has aguilty mind." The Privy Council also quoted withapproval the observations of Wright J. in Sherras v.D. Butzen M in regard to the limited and exceptionalclasses of offences which alone can be held to becommitted without a guilty mind. Said Wright J.:" There is a presumption that mens rea . . . intention« Srinivas Mall v. Emperor, A.I.B. [1947] P.C. 135, 139." Brend v. Wood (1946) 110 J.P. 317." [1895] 1 Q.B. 918, 921.


142 The Common Law in Indiaor a knowledge of wrongfulness of the act, is anessential ingredient in every offence, but that presumptionis liable to be displaced either by the wordsof the statute creating the offence or by the subjectmatterwith which it deals, and both must beconsidered."EXEMPTIONS FROM LIABILITYThe exemptions from criminal liability grouped insome of the English books under the heads of the" Grounds of defence " or " Variations in liability "are called general exceptions by the Penal Code.These enumerate cases in which an act which wouldnormally be an offence would by reason of the specialcircumstances in which the act is done not be anoffence. Among these are also included cases in whichthere is a want of what some of the English bookscall " criminal capacity " by reason of the mental orphysical condition of the person who does the act. Thescheme of these general exceptions is to put togetherin a series of sections the circumstances surroundingan act which would prevent it from being a crime,or state the peculiar situation of the person doing theact which makes him incompetent to commit a crime.It is then provided that nothing done in those circumstancesor by a person in such a situation is a crime. 85The general exceptions in the Code by and largeinclude most of the familiar exemptions from liabilityknown to common law such as mistake, ignorance,accident and consent and also the heads of want ofcriminal capacity like infancy, insanity, drunkenness55 Indian Penal Code, Chap. IV, s. 76 and the following sections.


Criminal Law 143and coercion. Some, however, of the exemptionswhich were inapplicable to Indian conditions, like thoserelating to husband and wife and privileged persons,are omitted. Yet other exceptions, based on reasonsspecial to India, like that based on the right of privatedefence of the body and of property, have been addedor enlarged. It is interesting to notice how closelysome of the exemptions from liability resemble thoseunder English common and statute law.Before, however, we proceed to deal with some ofthem, their general nature can be illustrated by takinghomicide which is an offence under section 299 of theCode and examining how the exemptions enacted workin relation to that offence. Homicide will not be anoffence if death is caused by accident or misfortuneand without any criminal intention or knowledge inthe doing of a lawful act, in a lawful manner, bylawful means and with proper care and caution. 56 Itwill be excused if it is caused by a child under sevenyears of age or by a child above seven and undertwelve years of age who has not attained sufficientmaturity of understanding or by a person of unsoundmind or by a person under intoxication and incapableof knowing the nature of the act. 57 Again homicidewill not be an offence if it is caused unintentionallyby an act done in good faith for the benefit of theperson who dies, when the person who has died or, ifhe is a minor or a lunatic, his guardian has consentedto the doing of the act. 58 Nor will it be an offencewhen death occurs by reason of an act done to a« Indian Penal Code, s. 80.5' Ibid., ss. 82, 83, 84, 85. «» Ibid., ss. 87, 88 and 89.


144 The Common Law in Indiaperson for whose benefit it is done in good faith, evenwithout that person's consent, if the circumstancesare such that it is impossible for that person to givehis consent. 59 Homicide will also be justified in thefollowing cases: if it is caused by a person who byreason of a mistake of fact in good faith believeshimself bound by law to do it 60 ; by a judge whenacting judicially in the exercise of any power whichis or which in good faith he believes to be given tohim by law"; by a person acting pursuant to ajudgment or order of a court of justice 62 ; by a personwho is justified by law, or who by reason of a mistakeof fact, in good faith believes himself to be justifiedby law, for example, the causing of death in theapprehending of a murderer in the act 63 ; by a personacting without any criminal intention to cause harm,and in good faith, for the purpose of preventing oravoiding other harm to person or property." Finally,as every person has a right, subject to certain restrictions,to defend his own body or the body of anyother person against any offence affecting the humanbody and his property against certain offences againstproperty, no offence of homicide will be committedif death is caused in the exercise of such a right ofprivate defence of person or property. 65 It will berecognised that almost all these exceptions, exceptingin a certain measure that based on the right of privatedefence, are in a smaller or greater degree exemptionsin English law.» 9 Indian Penal Code, s. 92. «o Ibid., s. 76.»i Ibid., s. 77. «a Ibid., s. 78.•» Ibid., s. 79. Ibid., ss. 96 to 103.«* Ibid., s. 81.


Criminal Law 145Infancy: Moral delinquency is as a general rule aprerequisite of all crime. Realisation of the consequencesof their acts cannot generally be imputed toyoung children. A line based on their age has,therefore, to be drawn between the immunity and theliability of children for criminal acts. Under thePenal Code a child under seven years of age is deemedincapable of committing an offence. 66 In England achild under eight years of age is exempt from liabilityfor a crime. 67 The Indian Code further provides thata child above seven and under twelve years of agewill not be deemed to have committed an offence ifthe child has not attained sufficient maturity ofunderstanding to judge of the nature and consequencesof bis conduct on the particular occasion. 68 Therequirement of the Indian Code has been often expressedin England by the phrase " malitia suppletaetatem " which means that malice makes up for thewant of age. Malice would in this context seem tomean knowledge that the act is morally as well aslegally wrong. Sometimes the same idea is expressedby the words " mischievous discretion." 69 In Englanda child of eight years or more but under theage of fourteen years is presumed to be incapable ofcommitting a crime. Common law regards a boyunder fourteen years of age to be physically incapableof committing the crime of rape 70 and judges have« s. 82.« Children and Young Persona Act, 1933 (23 & 24 Geo. 5, c. 12),s. 50.« s. 83.•» R. v. Elizabeth Owen (1830) 4 C. & P. 236. Frank Tatham (1921) 15 Cr.App.E. 132.


146 The Common Law in Indiarepeatedly refused to receive evidence that an accusedperson under that age was in fact capable of committingthe offence. The law in India knows of nosuch presumption. In each case it becomes a questionof fact to be determined with reference to the personcharged. 71Insanity: An insane person will be regarded as incapableof committing a crime only if at the time ofcommitting the act he was labouring under such adefect of reason from disease of the mind as not toknow the nature and quality of the act or as notto know that what he was doing was wrong. Insubstance criminal law gives protection to an insaneperson only if he is not capable of entertaining acriminal or any intention at all. The mere existenceof insanity of any kind will not suffice to exemptthe insane person from criminal liability. On theother hand, a person who may not be permanentlyinsane may suffer from an isolated condition of insanityor mental delusion which may afford himprotection from criminal liability. These principlesin regard to insanity as a ground of exemption fromliability for crime were, it appears, settled in Englandby the extra-judicial opinion given by the judges in1843 in answer to questions proposed to them by theHouse of Lords after the trial and acquittal of oneDaniel M'Naghten for the murder of a Mr. Drummond,the Prime Minister's Secretary. M'Naghtenbelieved that Drummond was the Prime Minister andthat he had a divine mission to kill the Prime Minister." Emperor v. Paras Bam Dube, A.I.B. [1915] All. 134; Katanlal,Law of Crimes, 18th ed., 161.


Criminal Law 147It was laid down in that opinion that a person accusedof crime could not be acquitted on the ground ofinsanity unless it was proved that the delusion hewas suffering from was such as prevented him fromknowing the nature of the act which he did or ifhe did know it that he did not know that he wasdoing wrong. 72 The provision in the Penal Code whichstates that nothing is an offence which is done by aperson who at the time of doing it is, by reason ofunsoundness of mind, incapable of knowing the natureof the act or that he is doing what is wrong orcontrary to law is in substance based on the principlelaid down in that case. 73Drunkenness: At common law a person who becomesdrunk as a result of his own voluntary act isnot excused from criminal liability by reason of hisdrunkenness alone; for a person though drunk maybe capable of forming an intention and therefore ofcommitting a crime." The position in India is notdifferent. The law provides that the act of a personwho at the time of doing it is by reason of intoxicationincapable of knowing the nature of the act orthat he is doing what is either wrong or contraryto law will not be an offence only if the thing whichintoxicated him was administered to him without hisknowledge or against his will.Mistake : In England, excepting in the cases whereproof of mens rea is unnecessary, bona fide mistake" B. v. M'Naghten (1843) 10 C.L. & P. 202; 4 St.Tr.(u.s.) 847.73Indian Penal Code, s. 84. Eatanlal, Law of Crimes, 18th ed.,pp. 162, 163.74Halsbury, Laics of England, 3rd ed., Vol. 10, p. 289, para. 535.


148 The Common Law in Indiaas to matters of fact would be available as a defenceto a crime. But ignorance of law cannot be adefence. 75 In substance mistake as a defence tocriminal liability at common law must amount eitherto the absence of mens rea in the accused or, wherethe act so warrants, the accused is treated as thoughhis harmful deed had not been an actus reus. Thelatter may be illustrated by the case of a personseizing another whom he reasonably though mistakenlysupposes to be committing a murder in orderto bring him before the proper authorities, though itmay in fact turn out that the person seized was actingin self defence. This indeed is the illustration whichis to be found in the provisions of the Indian Coderelating to the general exception of mistake. 78 As arule, however, mistake negatives mens rea rather thanactus feus. In some cases ignorantia facti is a gooddefence for such ignorance many a time makes theact itself morally involuntary." Mistake, however,must be of such a nature that had the circumstancessupposed to have existed by the person acting beenreal they would have prevented liability attaching tothe person doing the act. It would be no defenceif the supposed act would itself be unlawful. Themistake must also be a reasonable one. Finally themistake however reasonable must relate to matters offact and not to matters of law. Mistake as an exceptionto criminal liability has under the Indian Codein substance the same requirements. 78 The law Ibid., p. 284, para. 525. " s. 79." 1 Hale P.O. 42; Kenny, op. cit., p. 47, note 2.« ss. 76, 79.


Criminal Law 149provides expressly that the mistake has to be a mistakeof fact and not a mistake of law and the persondoing the act should have done it in good faith, which,as we have seen, imports due care and attention.That requirement introduces the idea that the mistakemust, as in English law, be a reasonable one. Astatute may of course expressly or by implicationexclude the defence of mistake. In such cases theexemption from liability will not be available in Indiaas well as in England.Husband and Wife : The presumption existed atcommon law, in the case of certain crimes, that wherea crime was committed by a wife in the presence ofher husband, the wife acted under the coercion ofthe husband. 79 The wife was supposed to be subjectto such powerful influences by the husband that shewas, in some cases which were not denned, excusedon the assumption that she was acting under thehusband's influence. 80 There was also assumed tobe such a community of interest between them thatneither could bring any criminal charge against theother except in regard to personal injuries inflictedby the one upon the other. 81 Nor could a husbandand wife in England be convicted of conspiracy ifthey were the only parties to it. 82The law, however, in England has been substantiallyaltered since the days of the enactment of the'» Halsbury, Laws of England, 3rd ed., Vol. 10, p. 291, para. 542.80 Stephen, Dig. Crim. Law, Art. 30; Brown v. Att.-Gen. forNew Zealand [1898] A.C. 234.« The Queen v. The Lord Mayor of London (1886) 16 Q.B.D.772; a case of private libel.82 Laila Jhina Mawji v. The Queen [1957] A.C. 126.


150 The Common Law in IndiaIndian Penal Code. The Larceny Act of 1916 whichre-enacts section 12 of the Married Women's PropertyAct, 1882, provides that spouses may be convictedof stealing each other's goods when they are livingapart or when the taking is effected with a view totheir doing so. 83 The irrebutable presumption thata woman who committed an offence in the presenceof her husband was acting under his coercion andthat she incurred no criminal liability was taken awayin 1925. Yet even today in England it is a gooddefence for the woman except in cases of treason ormurder to prove that she was in fact coerced by herhusband in whose presence the crime was committed. 84None of these principles has at any time appliedin India. The husband and wife do not in Indiaconstitute one person, as in England before theMarried Women's Property Act, 1882, for the purposeof criminal law and they would be liable for theftfor removing each other's property with a dishonestintention. 85 This difference between the Englishcommon law and the Indian Code derives from thefact that neither under the Hindu nor the Mahomedanlaw there exists, for the purpose of criminal law,the presumption that a husband and wife constituteone person. It may be said that the framers of theIndian Code were in this respect well ahead of theEnglish law.There is in India a provision which exempts thewife only from liability from the crime of harbouring83 B. 36.84 Criminal Justice Act, 1925 (15 & 16 Geo. 5, c. 86), s. 47.85Batanlal, Law of Crimes, 18th ed., p. 945.


Criminal Law 151her husband who is a deserter from the army,navy or air force. 84 Neither a husband nor a wifeincurs criminal liability by harbouring the otherspouse who has committed an offence or who hasescaped from custody. 87 These provisions may becompared to what English law provides in regard tothe wife, who is protected if she hides the husbandfrom justice after he has committed an offence, eventhough the offence be one of treason. This is saidto be based on a wife's duty to aid her husband andto keep his secrets. This protection, it appears,however, will not apply where there are specialstatutory provisions to the contrary, as in the caseof a deserter from the army. 88 A husband, however,does not enjoy a similar exemption when he assistsa felonious wife. 88Heads of State and other privileged persons: Amongthe legally abnormal persons in criminal law areincluded the heads of foreign States, the ambassadorsof foreign countries, their families, secretaries, andother attache's and employees of the legation whoenjoy immunity from criminal jurisdiction. 90 It isnot certain whether this immunity which is assertedby writers on international law is sanctioned by theEnglish courts. Assuming, however, that this diplomaticimmunity from jurisdiction exists, it is capableof being waived. 91 In England there are, however,»« Indian Penal Code, s. 136. " Ibid., ss. 212, 216 and 216A. Army Act. 1881, s. 153 (1).89 Kenny, op. cit., p. 9090 Oppenheim's International Law, 8th ed., Vol. 1, pp. 790-792,809, 810, 812.91 Halsbury, Laws of England, 3rd ed., Vol. 10, p. 292, para.544.


152 The Common Law in Indiavarious statutory provisions conferring diplomaticimmunities from civil and criminal liability to ambassadorsand diplomatic staff. 92Though some provisions have been made in theIndian Procedural Code in regard to the immunity ofprivileged persons from civil proceedings, no specificstatutory provision is to be found in India conferringimmunity from criminal jurisdiction on the heads offoreign States, ambassadors and diplomatic staff.Notwithstanding the absence of such provisions, wellestablishedrules of international law and judicialdecisions in England are however, in this respect,applied in India. One of the directive principles inthe Indian Constitution provides that the State shallendeavour to maintain just and honourable relationsbetween nations and foster respect for internationallaw in the dealings of organised peoples with oneanother. 93Self-Defence; It has often been stated that inEngland death inflicted by a man in self-defenceagainst an unlawful attack would be a case of justifiablehomicide. But Blackstone pointed out that thiswas too wide and based upon misconception; for sucha homicide could only be justified when the attackresisted was itself a felonious one and in such casesthe homicide would be justified by the fact that itwas effected in order to prevent a capital felony.Homicide in self-defence would therefore be caught92 Diplomatic Privileges Act, 1708 (9 Anne, c. 12); DiplomaticImmunities (Commonwealth Countries and Eepublic of Ireland)Act, 1952 (IS & 16 Geo. 6 & 1 Eliz. 2, c. 18); DiplomaticImmunities Kestrictions Act, 1955 (4 Eliz. 2, c. 21).93Indian Constitution, Art. 51.


Criminal Law 153by the ancient rule of strict liability and the killercould only be saved by the king's mercy. 94 Nowadays,of course, homicide in reasonable self-defencedoes not involve the killer in any legal liability.In India, however, the Penal Code in termsdeclares that every person has, subject to certainrestrictions mentioned in the statute, a right to privatedefence of the body against offences affecting thehuman body and against certain offences relating toproperty. 95 The right of private defence in no caseextends to inflicting more harm than is necessary forthe purpose of defence. Nor is there a right of privatedefence in cases in which there is time to have recourseto the protection of the public authorities. Theright of private defence cannot be availed of againstacts done by a public servant or under the directionof a public servant acting in good faith under colourof his office, even though the act may not be strictlyjustifiable in law, if the act does not reasonably causeapprehension of death or grievous injury. 96The justification given by the authors of the Codefor enacting the right of self-defence in somewhatliberal terms is interesting. " It may be thought thatwe have allowed too great a latitude to the exerciseof this right; and we are ourselves of opinion thatif we had been framing laws for a bold and highspiritedpeople, accustomed to take the law into theirown hand, and to go beyond the line of moderationin repelling injury, it would have been fit to provide«* Kenny, op. cit., pp. 112-113.»* Indian Penal Code, s. 97."« Ibid., s. 99.H.L.—12 11


154 The Common Law in Indiaadditional restrictions. In this country the dangeris on the other side; the people are too little disposedto help themselves; . . . Under these circumstanceswe are desirous rather to rouse and encourage a manlyspirit among the people than to multiply restrictionson the exercise of the right of self-defence." 97Provocation: For many centuries the common lawhas recognised that if it be proved that the misdeedwas done under the influence of irresistible impulsethe criminal liability though not entirely removed maybe reduced. Thus there would be a lesser liabilityif an intentional homicide is committed by a personwho has been so provoked by an attack made uponhim that he has suddenly and temporarily lost hisself-control and has done the act in the ungovernablepassion of the moment. Thus Coke drew a distinctionbetween an intentional killing in hot blood and anintentional killing when the blood was cool (a killingsedato animo) speaking of the latter as covering acase where " one killeth ariother without any provocationon the part of him that is slain." 9S Theearlier authorities sometimes confused homicide underprovocation with homicide in self-defence because inthose days the consequences were much the samein either case. Now, however, though homicide inreasonable self-defence does not involve criminal liability,if the act is done under provocation, it willstill be the felony of manslaughter punishable witha maximum of imprisonment for life."" Whitley Stokes, Anglo-Indian Code, Vol. 1, p. 17.98 Kenny, op. cit., p. 132.99Ibid., p. 132.


Criminal Law 155In India it is provided that liability will not attachfor the graver offence of murder to a person whocommits homicide whilst deprived of the power ofself-control by grave and sudden provocation andcauses the death of either the person who gave theprovocation or of any other person by mistake oraccident. Anything done by a public servant in thelawful exercise of his powers or by any person in thelawful exercise of the right to private defence willnot amount to provocation. Nor will a person whoseeks the provocation as an excuse for killing or doingharm to any person be protected on the ground ofthis exceptional liability. In England mere words orgestures not accompanied by anything of such aserious character as a blow will not be sufficient toreduce the crime to manslaughter. The authors ofthe Indian Code however refused to draw such adistinction stating that they greatly doubted whetherany good reason could be assigned for it. Theyobserved: " It is an indisputable fact that grossinsults by word or gesture have as great a tendencyto move many persons to violent passion as dangerousor painful bodily injuries; nor does it appear to usthat passion excited by insult is entitled to less indulgencethan passion excited by pain." x In Indianlaw provocation reduces liability not only in regardto homicide but also, in regard to lesser offences, likegrievous or simple hurt or assault, a lesser punishmentbeing awarded to the offender. The provocation has,however, in each case to be sudden and grave.i Ratanlal, op. cit., 18th ed., p. 728.


156 The Common Law in IndiaDegrees of criminality : A person may incur criminalliability in respect of an offence in various ways. Hemay personally commit it. He may participate inits commission though he does no act himself. Hemay set some other agency to work with a view tothe commission of the offence or he may help theoffender after the act with a view to screening himfrom justice. These modes or degrees of complicityin crimes are treated in English law under the headof principals in the first or second degree and accessoriesbefore or after the act. It would appear thatthe word " principal" in criminal law suggests thevery converse of what one would understand by itin the law of contract. The accessory in criminallaw proposes an act and the principal carries it outwhile in the law of contract and tort the principalauthorises the act and the agent carries it out. 2In the Indian Code the different degrees of complicityin crime are based on the manner in whichthe person charged has become associated with thecrime. There is no distinction as in England betweenprincipals in the first and second degree. An abettor inIndian law corresponds closely to an accessory beforethe fact in English law. The provisions correspondingto an accessory after the fact are scattered in the Codein various provisions under the name of harbouringan offender. 3 The steps towards the commission of acrime which are called by some writers " preliminary "or " inchoate " crimes, like incitement and conspiracy,2 Kenny, op. cit., p. 89.3 Eatanlal, op. cit., pp. 236-237.


Criminal Law 157fall in Indian law under the head of " Abetment."An attempt to commit a crime is treated separately.Abetment: A person who does not actually committhe crime may help to bring it about and therebybe guilty of the offence of abetment or in the languageof English law be an accessory before the fact. Hemay do so by instigating it, by engaging in a conspiracyto do it, or by aiding in the doing of it. 4The offence of abetment would be committed if theperson charged had instigated another in order thatthat person may instigate a third person to commitan offence. The instigation must be with the objectthat ultimately someone will be influenced to committhe offence. 5 The importance of abetment of a crimeby a conspiracy has greatly diminished since theenactment in 1913 of a provision creating a substantiveoffence of criminal conspiracy which has beendenned as an agreement between two or more personsto do an illegal act or an act which is not illegal byunlawful means. 6 This amendment brought the lawin India nearer in this respect to the law in England. 7Under the Indian law a person is said to abet anoffence by aiding it if he does an act or omits todo an act before or at the time of its commissionand thus intentionally facilitates its commission.Attempt: An attempt necessarily implies an intentionto achieve a result which the person doing theact has failed to bring about. It may be said that* Indian Penal Code, B. 107.s Ibid., B. 108, Exp. 4 and the illustration; 2 St.Tr. 951, at 965.« Ibid., s. 120A.* Mayne, Criminal Law of India, 4th ed., Pt. II, p. 247;Kenny, op. cit., p. 339.


158 The Common Law in Indiaan attempt implies intention in action. " An attemptis an overt act. It differs from the attempted crimein this, that the act has failed to bring the desiredresult." 8 To constitute an attempt at common lawthere has to be an overt act as well as mens rea.Any overt act of preparation committed after theintention to commit the crime has been formed andtended towards the commission of it is an attemptto commit it. In any case, when the connectionbetween the overt act of preparation and the commissionof the crime is clear, the fact that the attempthas been frustrated does not prevent it from creatinga criminal liability. It has been sometimes urged thaton principle an attempt which could not possiblysucceed should not be regarded as a criminal attemptand should not be punishable. It would, however,now appear well established that the impossibility ofperformance does not per se render the attemptharmless. In England it appears that many attemptsto commit crimes are themselves treated as crimes,special punishments being provided for them. When,however, this is not so, an attempt to commit a crimeis treated as a misdemeanour at common law.The Indian Code contains a chapter dealing with" attempts " to commit offences. Under the IndianCode attempts to commit offences are sometimes madecrimes by the provision dealing with the commissionof the offence itself. One may illustrate this by areference to the offence of waging war against theGovernment of India. It is provided that " whoever8 Holmes, Common Law, p. 65.


Criminal Law 159wages war against the Government of India, orattempts to wage such war, or abets the waging ofsuch war " shall be punished in a certain manner. 9Apart from such provisions there is a general provisiondealing with attempts to commit offences whichhave not been made punishable under specific provisions.10 This general provision makes it clear thatin order that an attempt may be a crime an overtact is necessary in India as in England. A personwill not incur criminal liability for attempting tocommit an offence unless he " does any act towardsthe commission of the offence." Thus an attemptbecomes a crime only when it reaches a point at whichan act is done towards the commission of the offence.A man cannot be punished merely for having formeda design to commit a crime. He can be punishedonly when he does something definite in pursuance ofhis design. He would then be punished as if the crimetowards the commission of which he had done an overtact had been committed. Naturally very often thequestion arises at what stage on the way to a completedoffence does a person act towards the commissionof it. 11 The difficulty in judging whetherthere has been an attempt punishable as a crime isthe same in England as in India. It may be thatsome acts may be attempts or misdemeanours eventhough they could not have resulted in a crime unlessfollowed by other acts on the part of the wrongdoer. 12» Indian Penal Code, ss. 121, 125 and 39.i» Ibid., s. 511.11 Mayne, Criminal Law of India, 4th ed., Pt. II, p. 936.12 Holmes, Common Law, pp. 66-67.


160 The Common Law in IndiaOne may illustrate this by a reference to the casewhere a man was convicted of a criminal attemptwhen he had lighted a match with intent to set fireto a haystack though he blew it out on seeing thathe was watched. 13 The position in India is notdifferent; and there have been numerous decisionswhich have drawn a line between what may be regardedas mere acts of preparation and overt actswhich amount to an attempt. The Indian courtshave applied the well-accepted principle that the lawcan afford to disregard a mere criminal intent butthat it must intervene when the intent is accompaniedby acts which are sufficiently proximate to the crimeattempted.Punishment: It may perhaps be said that the IndianCode takes much greater care than Enghsh law todifferentiate between the possible shades of offencesand to graduate the maximum punishment for eachoffence. In a system of punishment so framed necessarilymuch less is left to the discretion of the judge."Both the English and Indian law have progressed inthe matter of punishment. In England the CriminalJustice Act of 1948 has provided in effect that anycourt may fine an offender convicted for felony (notbeing felony for which the sentence is fixed by law)in lieu of or in addition to dealing with him in anyother manner that the court may have power to do. 15This indeed was the law enacted as far back as 186013 R. v. Cross (1859) 1 P. & F. 511." Sir Ronald K. Wilson, Comparative Tables of English andIndian Law, 1890 (London), p. 12.15 Kenny, op. cit., p. 513.


Criminal Law 161in the Indian Code. The absence of a fine as a generalpunishment for felony was a difference between Indianand English law. 1 * On the other hand, the IndianCode continued to have forfeiture of property as apunishment for certain political offences and offencespunishable with death till 1921 when it was abolishedby the repeal of certain sections of the Code. 17 InEngland forfeiture for felony and treason were abolishedas early as 1870. 1S The abolition of the punishmentof whipping in most cases in England by theCriminal Justice Act of 1948 was followed by similarlegislation in India in 1955. 19Thus in some cases where the Indian Code wasprecise and ahead of the common law English statuteshave subsequently supplemented the common law. Inother matters where the Indian Code had laggedbehind English common and statute law, legislation inIndia has tried to keep pace with the developmentsin England.A provision in the Indian Code deserves noticebecause of its similarity to the provision in theEnglish Bill of Rights that " excessive fines ought notto be imposed." It reads " Where no sum is expressedto which a fine may extend, the amount of fine towhich the offender is liable is unlimited, but shallnot be excessive." 2014 Sir Bonald K. Wilson, op. tit., p. 6, item 8." Indian Penal Code, ss. 61, 62 (repealed by Act 16 of 1921);Batanlal, op. tit., p. 85.» Forfeiture Act, 1870 (33 & 34 Viet. c. 23); Kenny, op. tit.,p. 94.19 Criminal JuBtice Act, 1948, s. 2; Abolition of Whipping Act,1955.20 Indian Penal Code, s. 63.


162 The Common Law in IndiaCriminal Procedure: A glimpse at the manner inwhich those who have committed crimes are broughtbefore the courts in India and tried by them willcomplete the picture of the broad similarity of theworking of the system of criminal law in Englandand India.The repression of crime being a matter of seriousimportance to the community, the Indian law providesthat offences may be brought to the notice ofthe authorities either through the agency of the police,whose duty is to enforce law and order, or by privatepersons. Cases may be started before the criminalcourts either on reports made by the police or oncomplaints lodged by private persons. The ProcedureCode not only gives the right to make complaints toprivate persons but it makes it incumbent on thepublic to give information to the police of thecommission or the intended commission of certainoffences. 21 The duty of aiding magistrates and policeofficers in making arrests and in preventing certainoffences is also laid on the public. 22 The Code alsoentitles private persons to arrest persons in certaincases and make over persons so arrested without unnecessarydelay to a police officer. 23 The law enjoinsall persons to attend before magistrates and policeofficers to give evidence about the commission ofoffences within their cognizance whenever called uponto do so. 2421 Criminal Procedure Code, 1898, s. 44.« Ibid., s. 42.23 Ibid., s. 59; cf. Walters v. W. H. Smith


Criminal Law 163Large powers have been entrusted to the police forconducting investigations into offences stated to havebeen committed. Offences are for this purpose dividedbroadly into two classes called cognizable and noncognizable.The broad distinction between these twoclasses of offences is that though a police officer onreceipt of information of the commission of a cognizableoffence has the power to commence an investigationand to make arrests, he has no such powerin the case of non-cognizable offences unless theinvestigation is authorised by a competent magistrate.The Code has placed upon every police officer thegeneral duty to interpose and prevent to the best ofhis ability the commission of any cognizable offence.As cognizable offences are offences of a seriousnature, the Code requires the police to investigate themon their own authority, the need for immediate actionbeing imperative in such cases. During the course oftheir investigation the police are empowered to makesearches, order production of documents and things,seize any suspicious property, call witnesses requiringthem to attend any court and arrest without warranton their own responsibility persons suspected ofhaving been guilty of the offence. In such casesthe investigation results in a police report upon whichproceedings in respect of the offence are initiatedbefore a magistrate. In dealing with non-cognizableoffences the police would have no such powers unlessan investigation is ordered by a magistrate. On complaintsby private persons, the magistrate, if he issatisfied that there is a case for inquiry, directs thepolice to make a preliminary investigation before


164 The Common Law in Indiapermitting proceedings upon the complaint to beadopted. Apart from conducting investigation thepolice also have powers to anticipate offences which areintended to be committed and take steps to preventthem. 25As crime is a wrong to society generally the rightto initiate criminal proceedings in respect of it belongsnot only to the party injured but to all other personswho may be cognizant of the commission of the crime.The State as the representative of the community isthe real prosecutor in all criminal proceedings. Acriminal proceeding is, therefore, not permitted toabate by reason merely of the absence or death ofa complainant. 28 Nor is there, unless the statuteexpressly so provides, a period of limitation for theinstitution of proceedings in respect of a crime. 27 Theright to start criminal proceedings is, however, restrictedto the person aggrieved in regard to certainoffences such as defamation, offences against marriage,marital misbehaviour and adultery. 28 Proceedingscannot be started in respect of offences which relateto the contempt of the authority of a public servant,offences against public justice and similar mattersunless a complaint is lodged by a person in authorityor the sanction of a specified authority has beenobtained. 29The Indian law makes a provision for the compoundingwith or without the permission of the court25Criminal Procedure Code, ss. 149-153.26 Hazara Singh v. Emperor (1922) 22 Cr.L.J. 166.27Q. E. v. Nageshappa Pai (1895) I.L.E. 20 Bom. 543.28 Criminal Procedure Code, ss. 198-199A.29Ibid., ss. 195, 196, 197.


Criminal Law 165of certain offences. 3 " In respect of these offences,particularly in the case of those which can be compoundedwithout permission, the criminal proceedingsmay be regarded as being in the nature of personalactions, the complainant being competent to put anend to them. This would seem to be different inEngland where a prosecution settled and abandonedby the original prosecutor may be taken up by theAttorney-General or even by a private person. 31The manner of trial of offences varies, broadlyspeaking, according to the seriousness of the offence.The more serious the offence the greater the elaboratenessof the procedure. No sentence of imprisonmentexceeding three months can be passed in cases triedin a summary manner. Offences which merit aseverer punishment are tried as warrant cases witha more detailed procedure. Offences of a still gravernature can only be tried by a court of session or aHigh Court and a special procedure is provided. 32There is also a hierarchy of courts for dealing withcriminal offences. Describing the English system ofcriminal courts the Law Commission of India in arecent report observed: " The above description showsthat our system of criminal courts is substantiallysimilar to the English system." 33The Trial: The fundamental principles which governthe trial of a person accused of crime under theBritish system of jurisprudence also obtain in India.3» Ibid., B. 345.« R. v. Wood (1831) 3B.A Ad. 57; Kenny, op. cit., p. 539.32 Criminal Procedure Code, 1898, chaps. 22, 23.33 Eeport of the Law Commission, Vol. n, p. 719.


166 The Common Law in IndiaAs in England it is for the prosecutor to prove thecharge that has been laid against the accused. Theproof must be beyond reasonable doubt. 34 The courtsare to be open to the public. 35 The witnesses haveto give their evidence in the presence of the accusedperson 36 and the accused has the right to crossexaminethem after they have been examined by theprosecutor. 37 The accused or his advocate is entitledto urge arguments in his defence. Once the courtcomes to a decision of acquittal or conviction theaccused cannot be charged again with the sameoffence. 38 As in England the public prosecutor isregarded as a representative of the State, a ministerof justice assisting in its administration. He has nointerest in procuring a conviction. He is concernedonly that the truth should be known and that thereal offender be convicted. 39 A judge may not bepersonally interested in the cases which he tries, themaxim being Nemo debet esse judex in propria suacausa. 40It may truly be said that not only does the modeof trial in India assure to the accused a fair deal3 * Halsbury, 3rd ed., Vol. 10, p. 436, para. 809; Sarkar, TheIndian Evidence Act, 19th ed., pp. 29, 789, and decisions notedthere.35Criminal Procedure Code, 8. 352.»« Ibid., s. 353.37 Indian Evidence Act, s. 138; Criminal Procedure Code, s. 256.383940Criminal Procedure Code, s. 403.B. v. Puddick (1865) 4 F. t P. 497, 499; Halsbury, 3rd ed.,Vol. 10, p. 416, para. 761; Kenny, op. dt., 505, cited LordHewart C.J., Bam Banjan Boy v. Emperor, A.I.R. [1915]Cal. 545.Criminal Procedure Code, s. 556; Serjeant(1877) 2 Q.B.D. 558, at 567.& Ors. v. Dale


Criminal Law 167as in England but the manner and procedure of trialare but a modification of the English system suitedto Indian conditions. It has been said that " freedomis not so much a matter of the formulation of sonorousabstractions as of protecting the rights of each singleperson in the State. The test of freedom lies in therights of the individual, and in the readiness of the law—particularly the criminal law—to uphold them." 41As we shall see later the Indian Bill of Rights guaranteesto the individual his freedom. The IndianCriminal law helps him to enjoy and uphold it.F. T. Giles, The Criminal Law, 12.


CHAPTER 4THE INDIAN CONSTITUTIONTHE structure of the Indian Constitution is said tobe characteristically British. "The machinery ofgovernment is essentially British and the wholecollection of British constitutional conventions hasapparently been incorporated as conventions." 1The builders of the Indian Constitution not onlydrew largely from the collection of British ideas andinstitutions which was India's heritage from Britishrule, but they also took care to maintain a continuitywith the governmental system which had grown upunder the British. They believed not in severing theirlinks with the past but rather in treasuring all thathad been useful and to which they had been accustomed.The structure which emerged was thereforenot only basically British in its framework but tookthe form of an alteration and extension of what hadpreviously existed. A brief reference to the circumstancesand the manner in which the Constitutioncame into being will clarify the situation.THE BACKGROUNDFor about a hundred years before 1935 British Indiahad been governed under a unitary system of government.Acts for the government of India passed from1 Sir Ivor Jennings, Some Characteristics of the Indian Constitution,p. 2.168


The Indian Constitution 169time to time had prescribed the governmental machinery.They had gradually liberalised it by introducingan Indian element into the legislatures and later inthe executive. The growing demand for transfer ofpower into Indian hands had led later to the introductionof a system of diarchy under which therewas a partial delegation of legislative and executivepower, restricted to certain subjects, to the provincialelected legislatures under the Act of 1919. Notwithstanding,however, the system of diarchy, the Governmentof India continued under one central administrationtill the enactment of the Government of IndiaAct, 1985. That Act was the first attempt to establisha federal government in India.However, the historical, political and economicneeds which create the urge to federalism were completelyabsent. The unusual nature of the federationsought to be created by the Act of 1935 was fullyrecognised by its authors. The report of the JointParliamentary Committee on Indian ConstitutionalReforms stated: "Of course in thus converting aunitary State into a federation we should be takinga step for which there is no exact historical precedent.Federations have commonly resulted from an agreementbetween independent or, at least, autonomousGovernments, surrendering a denned part of theirsovereignty or autonomy to a new central organism.At the present moment the British Indian Provincesare not even autonomous for they are subject to bothadministrative and legislative control of the Governmentof India and such authority as they exercisehas been in the main devolved upon them under aH.t..—12 12


170 The Common Law in Indiastatutory rule-making power by the Governor-Generalin Council. We are faced therefore with the necessityof creating autonomous units and combining theminto a federation by one and the same act."This artificial federal scheme was devised mainlyin order to provide and maintain conditions whichwould, notwithstanding the transfer of political powerinto Indian hands, enable Britain to maintain its holdover India. Though the autonomous units createdby the Act of 1935 began to function from 1987, asevents shaped the federation envisaged by the Actnever came into existence.The year 1947 witnessed the fruition of the Indianstruggle for freedom; a bloodless revolution whichbrought about the transfer of power from British toIndian hands. The manner in which this transfer waseffected was in some respects unique. The BritishParliament which had governed the country for abouta century abdicated; and by the very statute bywhich it abdicated—the Indian Independence Act—it created a new dominion, the Dominion of India.The Act also contained a machinery for the framingof a new Constitution for India. The ConstituentAssembly formed under the Act was to prepare it.The Assembly evolved the present Constitution of thecountry after debates spread over three years. Thus,in a sense, the Indian Constitution of 1950 springsout of the parliamentary statute of 1947.The Assembly had to make a difficult decision. Onone side was the history of a centralised governmentin India for over a hundred years under the British.The experience of internecine divisions and centrifugal


The Indian Constitution 171forces in the country pointed to the need for a strongcentral government such as a unitary state mightwell produce. On the other side were the alreadyexisting partly autonomous provincial units, theIndian states, British paramountcy over which hadlapsed and which had to find a place in the Indianpolity and the federal structure in the Act of 1935which attracted them to a federal state. The lureof the Act of 1935, which contained the frameworkof such a general government as could well be workedupon and turned into a federation suited to India'sneeds, proved irresistible. India's adoption of a federalstructure may thus be traced to the parliamentarystatute of 1935.This statute had, in making suitable provisions forthe Government of India, naturally drawn largely onthe previous Government of India Acts of which itwas the successor. In fact it reproduced in some casesthe language of some of the earlier ConstitutionActs. Its scheme was largely based on parliamentarylegislation which had created federations in Canada,Australia and South Africa. That was the model onwhich the Constituent Assembly worked in fashioningthe Indian Constitution.The fighters for Indian freedom who had assembledin the Constituent Assembly to shape the country'sConstitution had no desire to make a break with thepast. They were deeply conscious of the importanceof continuity in so far as it could be maintained consistentlywith the country's desire for a republicanform of government. A careful study was made ofthe constitutions of different countries all over the


172 The Common Law in Indiaworld in an endeavour to discover ideas and provisionswhich might suit Indian conditions and in a certainmeasure these were utilised. The fundamental rightsin the Indian Constitution have been in the main inspiredby the Constitution of the United States butthey have been modified in the light of the experienceof the United States and other countries. But theground plan of the Indian Constitution is to be foundin the parliamentary statute of 1935 which was theresult of years of deliberation in India and in Englandand was based on the working of the Canadian andAustralian Constitution Acts.The Indian Constitution is a composite constitutioncomprising not only the Constitution of the federation,the Union of India, but also the constitutions of theconstituent states of the Union. This resulted fromthe peculiar nature of the Indian federation to whichwe have already referred. The Indian federation didnot arise like the Australian federation out of apact between independent or autonomous states, whowanted to come together for their mutual benefit inthe matter of defence or their economy, surrenderingsome of their sovereign or autonomous powers to thegeneral government. The Indian Provinces were,before 1950, units formed on the basis of administrativeconvenience with little autonomy of their ownthough certain legislative powers had been devolvedupon them by the central Government. The IndianConstitution-makers had, therefore, like the framers ofthe Act of 1935, to create simultaneously a generalgovernment and the constituent regional units. Ithad also to provide for a distribution of power between


The Indian Constitution 173the general and regional governments and for themanner in which the general and the regional governmentswere to function.The British influence on the Indian Constitution isnot restricted to its being based upon the frameworkof the Act of 1985. It is far deeper and more extensive.The Indian Constitution has drawn freelyupon basic principles of English constitutional law.It incorporates the principles of responsible governmenton the model of the British Cabinet system.We also find in it a constitutional head, the President,whose functions bear a close comparison to those ofthe King in England.BROAD FEATURESExamining the interrelation of the executive andlegislative powers in the Indian Constitution theSupreme Court of India stated that " Our Constitution,though federal in its structure, is modelled onthe British parliamentary system where the executiveis deemed to have the primary responsibility for theformulation of governmental policy and its transmissioninto law, though the condition precedent to theexercise of this responsibility is its retaining theconfidence of the legislative branch of the state. . . .In the Indian Constitution, therefore, we have thesame system of parliamentary executive as in Englandand the Council of Ministers consisting, as it does, ofthe members of the legislature is, like the BritishCabinet, ' a hyphen which joins, a buckle which


174 The Common Law in Indiafastens the legislative part of the state to the executivepart.' " 2A broad survey of the structure of the generalor Union Government under the Constitution willconvince us that it is based on the British and theparliamentary system, no doubt with some notabledifferences arising in part out of the basic differencethat the Indian Union is a federal and not a unitarygovernment.The Constitution divides the functions of the Unioninto the three categories of executive, legislative andjudicial functions following the pattern of the BritishNorth America Act and the Commonwealth of AustraliaAct. Though this division of functions is notbased on the doctrine of separation of powers as inthe United States yet there is a broad division offunctions between the appropriate authorities so that,for example, the legislature will not be entitled toarrogate to itself the judicial function of adjudication." The Indian Constitution has not indeed recognisedthe doctrine of separation of powers in its absoluterigidity but the functions of the different parts orbranches of the government have been sufficientlydifferentiated and consequently it can very well besaid that our Constitution does not contemplateassumption, by one organ or part of the state, offunctions that essentially belong to another." 3 Thiswill no doubt strike one accustomed to the establishedsupremacy of Parliament in England as unusual. In2Bad Sahib Bam Jawaya Kapur


The Indian Constitution 175the course of its historical development Parliamenthas performed and in a way still performs judicialfunctions. Indeed the expression " Court of Parliament" is not unfamiliar to English lawyers. However,a differentiation of the functions of differentdepartments is an invariable feature of all writtenconstitutions. The very purpose of a written constitutionis the demarcation of the powers of differentdepartments of government so that the exercise oftheir powers may be limited to their particular fields.In countries governed by a written constitution, asIndia is, the supreme authority is not Parliament butthe constitution. Contrasting it with the supremacyof Parliament, Dicey has characterised it as thesupremacy of the constitution.The executive power of the Indian Union is vestedin an elected head, the President of India. 4 He holdsoffice for a term of five years and may be removedfrom office by impeachment for violation of theConstitution. The executive functions of the Unionextend, as in the Canadian Constitution, to all matterswith respect of which the Union Parliament maymake laws. 5 The President has to exercise his powerswith the " aid and advice " of his Council of Ministersof which the Prime Minister is the head. 6 The PrimeMinister is appointed by the President and themembers of the Council of Ministers are also appointedby him on the advice of the Prime Minister. TheMinisters are to hold office during the pleasure ofthe President and the Council of Ministers is to be* Indian Constitution, Arts. 52, 53 and 54.» Ibid., Art. 73. e xui., Art. 74.


176 The Common Law in Indiacollectively responsible to the House of the People. 7The House of the People is a part of the Parliamentof the Union of India which consists of the Presidentand two Houses: the Council of States and the Houseof the People. The House of the People correspondsto the House of Commons in England, being electeddirectly by the people of India on an adult suffrageon a population basis. The Council of States is ina way similar to the Upper House in England thoughit is almost wholly elected and has no hereditaryelement in it. It is composed mainly of representativeselected by the Legislative Assemblies of theStates constituting the Indian Union.THE PRESIDENTThe designation of the head as President and hisbeing elected creates an impression that the Presidentof India would have the powers of the chief executivein the American Constitution. But the resemblanceends with the name given to the chief executive andthe manner of his selection. The Constitution nodoubt assigns to the President numerous and mostimportant functions. Not only has he to performfunctions as the chief executive of the Union Governmentbut he is also a limb of the Union legislature.Bills passed by the Houses of Parliament have to bepresented to the President for his assent before theybecome law. When a Bill is so presented he has todeclare that either he assents to the Bill or he withholdsassent therefrom. He may also return certain•> Ibid., Art. 75.


The Indian Constitution 177Bills to the Houses of Parliament requesting theirreconsideration. The supreme command of the defenceforces of the Union is vested in the President.He has, in that capacity, powers in regard to theappointment, discipline, disposition and the use ofarmed forces. The Constitution also vests in himpower to create various statutory authorities in whomare vested the performance of different functions.However, we must not forget that the Constitutionrequires the President to act with the " aid andadvice " of his Council of Ministers. This may besaid to be one of the key provisions of the Constitution.The phraseology has been borrowed fromthe Government of India Act, 1935, and its truemeaning is to be found in British constitutionalpractice and conventions. The words appear to indicatea respectful formula appropriate to the dignityand status of the constitutional head of the state, inwhose name the government of the country is carriedon, requiring him to act in all matters in conformitywith the views of his Ministers. It is said to bethe first principle of the British Constitution that theKing acts solely on the advice of his Ministers. Theprovisions of the Indian Constitution seem to applythis principle to the President so that he is competentto act in the discharge of all the functionsvested in him by the Constitution solely with the aidand advice of his Ministers. The Indian Constitutionappears to have adopted the device of a constitutionalhead in whose name the power of the Government isto be exercised with the change that the constitutionalhead in India is an elected and not a hereditary head.


178 The Common Law in IndiaOne may, however, recall in this connection theobservations of Sir Ivor Jennings in regard to theposition of the King in the United Kingdom and theGovernor-General in the Dominions which are perhapsin a substantial measure applicable to the Presidentin the Indian Constitution. " A function to beexercised on advice is not formal or automatic. TheKing or the Governor-General must be persuaded andon occasions the King or the Governor-General maydo the persuading. It is, indeed, the practice in theUnited Kingdom to consult the King informally sothat he may make his views known without rejectingor suspending action on formal advice. In the longrun he may either accept the advice or find a newmethod, but his views ought to carry weight andmay modify the ' advice he receives.' " The IndianConstitution requires the Prime Minister to communicateto the President all decisions of his Cabinet,furnish to him all the information he may call for,and, if so required by the President, submit for theconsideration of his Cabinet any matter on which adecision has been taken by a Minister and which hasnot been considered by the Cabinet. 8 These provisionscontemplate the Prime Minister as representingthe Council of Ministers being the channel of communicationbetween the President on the one handand the Council of Ministers on the other. Theseappear to be the means by which the President may" do the persuading." The close analogy betweenthe President of the Indian Union as its constitutional« Ibid., Art. 78.


The Indian Constitution 179head and the sovereign in Great Britain is apparent.Healthy conventions enabling the President to exercisethe weight and influence which should legitimatelybelong to the constitutional head of the Indian Unionhave started and will become established in courseof time as in the case of the monarch in England.It follows, therefore, that the executive power isin the Indian Constitution really vested in theMinisters or the Cabinet as in England. " The Cabinetenjoying, as it does, a majority in the legislatureconcentrates in itself the virtual control of both legislativeand executive functions; and as the Ministersconstituting the Cabinet are presumably agreed onfundamentals and act on the principle of collectiveresponsibility, the most important questions of policyare all formulated by them." 9 This fusion of theexecutive and the legislature, the responsibility ofgovernment lying with the Council of Ministers whoare in turn responsible to the legislature, is in substancea reproduction of the British Cabinet systemevolved in the course of years by English constitutionalprecedent.PARLIAMENTAs in England the Lower House is the predominantHouse. A Money Bill, which has in the Constitutionmuch the same meaning as in England, can be introducedonly in the House of the People. After aMoney Bill has been passed by the House of thePeople it is transmitted to the Council of States " for9 Rei Sahib Ram Jawaya Kaput v. The State of Punjab (1955)-i S.C.R. 2-25, 236-237.


180 The Common Law in Indiaits recommendations." The recommendations of thatHouse, however, may either be accepted or rejectedby the Lower House. If these recommendations arenot accepted by the Lower House, the Bill is to bedeemed to have been passed by both the Houses inthe form in which it was passed by the House ofthe People without any of the amendments recommendedby the Council of States. 10 Provisions are,however, made for a joint sitting of both Houses incertain cases but that procedure has no applicationto a Money Bill. 11The procedure in financial matters providing foran annual financial statement of the estimated receiptsand expenditure, submission of so much of the estimatesas do not relate to expenditure charged uponthe Consolidated Fund of India to the vote of theHouse and a provision for Bills for the appropriationout of the Consolidated Fund of India of the expenditurecharged by the Constitution on the Fundand other grants closely follows the English practicein this regard. 13Provision is made for the privileges and immunitiesof the Houses of Parliament and its members. Subjectto the provisions of the Constitution and to therules and standing orders regulating the procedure ofParliament there is to be freedom of speech inParliament. No member of Parliament is to be liableto any proceedings in any court in respect of anythingsaid or any vote given by him in Parliament or any10 Indian Constitution, Art. 109.11 Ibid., Art. 108.12 Ibid., Arts. 112, 113 and 114.


The Indian Constitution 181of its committees. The Constitution having definedsome of the powers, privileges and immunities ofParliament and its members takes care to provide that" in other respects, the powers, privileges and immunitiesof each House of Parliament, and of themembers and the committees of each House, shall besuch as may from time to time be defined by Parliamentby law, and, until so defined, shall be thoseof the House of Commons of the Parliament of theUnited Kingdom, and of its members and committees,at the commencement of this Constitution." 13 ThusEnglish parliamentary practice and tradition have inexpress terms been made applicable to the IndianHouses of Parliament until departed from by law madeby the Indian Parliament itself. Not infrequentlyhave the ancient precedents referred to in May'sParliamentary Practice and other books on the historyand practice of the British Parliament been referredto when questions arose in regard to the powers andprivileges of Parliament and its members. These havealso on more than one occasion been referred to bythe Supreme Court of India when questions in regardto the powers of the legislatures when breaches ofprivilege occur had to be debated in the court.But the extent of the legislative power of theBritish and the Indian Parliaments is not comparable.In England Parliament is supreme. There is no limitor bar to the legislation which it may enact. Onthe other hand the Indian Parliament functioning underthe written Constitution of India is a legislature ofis Ibid., Art. 105.


182 The Common Law in Indialimited powers. The essence of a federal constitutionis the division of powers between the federal Unionwhich is the general Government and the constituentstates, the regional governments. While some powersof legislation and taxation are reserved to the generalGovernment some other powers of the same natureare reserved to the regional governments. The Constitutionof India follows this pattern. It enumeratessubject-matters of legislation on which, on the onehand the Parliament, and on the other hand the statelegislatures, may exclusively legislate. Parliamentmay not by its legislation trench on the state fieldof legislation. There has also been provided a concurrentfield of legislation which both the UnionParliament and the state legislatures may cover. Theresiduary powers of legislation remain, however, withParliament. The validity, therefore, of legislationmade in the Indian Parliament can be questioned onthe ground of Parliament having legislated on subjectswith respect to which it is not competent to legislate.We shall have occasion to examine later a featureof the Indian Constitution which consists in the Billof Rights it enacts naming them fundamental rights.These are certain rights vested in the citizen andothers which even parliamentary legislation cannotinvade or affect. Indeed the Constitution in expressterms makes laws affecting or abridging these rightsvoid. The Indian Parliament is thus not only restrictedas to the subject-matters on which it canlegislate but there is imposed on its legislative powersan additional fetter in that it cannot legislate so asto affect or abridge fundamental rights.


The Indian Constitution 183This vital difference between the powers of theBritish Parliament and the Parliament of the Unionof India has been thus explained by the SupremeCourt of India. " A distinction, however, existsbetween a legislature which is legally omnipotent likethe British Parliament and the laws promulgated bywhich could not be challenged on the ground ofincompetency, and a legislature which enjoys only alimited or a qualified jurisdiction. If the constitutionof a state distributes the legislative powers amongstdifferent bodies, which have to act within their respectivespheres marked out by specific legislativeentries, or if there are limitations on the legislativeauthority in the shape of fundamental rights,questions do arise as to whether the legislature ina particular case has or has not, in respect of thesubject-matter of the statute or in the method ofenacting it, transgressed the limits of its constitutionalpowers." "Therefore, when a Parliament with limited powerslike the Indian Parliament legislates, frequently thelegislation has to be closely examined in order todetermine whether Parliament has exceeded its powersin enacting it. The transgression of its powers " maybe patent, manifest or direct, but it may also bedisguised, covert and indirect." Legislation by whichParliament has exceeded its powers in a covert orindirect manner has been described as " colourablelegislation" by some judges. The idea conveyedby the expression is that although apparently a" K. C. Gajapati Narayan Deo v. State of Orissa (1954) S.C.K.1, p. 11.


184 The Common Law in Indialegislature in passing a statute purported to act withinthe limits of its powers, yet in substance and inreality it transgressed these powers, the transgressionbeing veiled by what appears, on proper examination,to be a mere pretence or disguise. This has led courtsto lay down the principle that " Where the law makingauthority is of a limited or qualified character itmay be necessary to examine with some strictnessthe substance of the legislation for the purpose ofdetermining what it is that the legislature is reallydoing." 15JUDICIAL CONTROL OVER LEGISLATIONWhen a question of Parliament having exceeded itslegislative powers arises, which authority is to decideit ? We have already noticed the division of functionsbetween the three departments of government. Ifone of them, the legislature, exceeds its powers, onewould expect that there would be an impartialauthority independent of these three departments ofgovernment which should have the power to determinewhether there has been an excess in the exercise oflegislative power. It may well be urged that thecourts of law, which are but a part of the judicialdepartment of the government, would not be theappropriate organs to determine such questions.Indeed a federation which necessarily postulates adivision of powers between the general and theregional governments and occasional conflicts in theexercise of these powers would seem to need an15 Att.-Gen. for Ontario v. Reciprocal Insurers


The Indian Constitution 185authority independent of the general and regionalgovernments which could, when controversies arise,make decisions as to the validity of the exercise oftheir respective legislative or administrative powers.The superior judiciary in India is, as in Canada,appointed by the general Government. Why shouldthe judicial organ of the state be entrusted with thedetermination of these important and sometimes vitalquestions ? In the Swiss federation such a power isnot completely exercised by the ordinary courts.It is not without controversy that the courts havebeen permitted to exercise this power. It has frequentlybeen urged that judges have introduced theiropinions as to what the law should be in their interpretationof the Constitution and have on occasionsgiven decisions contrary to the expressed will of thelegislature chosen by the people. Why the judicialorgan of the state has been invested with this functionmay be explained in the words of Alexander Hamiltonin The Federalist. 16 " The interpretation of the lawsis the proper and peculiar province of the courts.A constitution is in fact and must be regarded bythe judges as a fundamental law. It, therefore,belongs to them to ascertain its meaning as well asthe meaning of any particular Act proceeding fromthe legislative body." It was not till 1803 that theSupreme Court of the United States for the first timerecognised this function of the courts and invalidatedan Act of the Congress. 17 Chief Justice Marshall thereaffirmed what has subsequently come to be known in« No. LXXVIII.« Marbury v. Madison, Cranch 137, 177, 178.H.L.—12 13


186 The Common Law in Indiacountries governed by written constitutions as thedoctrine of "judicial review." He stated that "Itis emphatically the province and duty of the judicialdepartment to say what the law is. ... This isof the very essence of judicial duty." The doctrinehas since been firmly established in the United Statesand has been accepted in the Australian and Canadianfederations.This doctrine, evolved in other federations byjudicial decisions and constitutional practice, is implicitin the Indian Constitution in that it prescribeslimits to the powers of legislation exercisable byParliament. However, in so far as Parliament'spowers of legislation are restricted by the Bill ofRights embodied in the Constitution, it expressly providesthat laws inconsistent with, taking away orabridging the fundamental rights are to be void tothe extent of such inconsistency or contravention. 18But it authorises the imposition by the legislature ofcertain reasonable restrictions in the public intereston the exercise of these rights. The question ofreasonableness is again in the last resort a matterfor determination by the courts. " The determinationby the legislature of what constitutes a reasonablerestriction is not final or conclusive; it is subject tothe supervision by this court." 19 So observed theSupreme Court of India declaring the court's powerof judicial review of legislation imposing restrictionson fundamental rights.18 Indian Constitution, Art. 13." Chintaman Rao v. State of Madhya Pradesh (1950) S.C.E.759, 765.


The Indian Constitution 187The comment has been made that if legislation byParliament is to be subject to examination by thecourts, not only in regard to its validity as being inexcess of its prescribed legislative powers but also asto the reasonableness of what should have been enactedwhen it contravenes the fundamental rights, wewould be not only placing the courts above Parliamentbut turning the courts into a legislature. Thesupremacy of Parliament would be substituted by thesupremacy of the courts. This view overlooks thebasic fact that the Constitution itself empowers ajudicial review, so that when the courts express theirviews as to the reasonableness of restrictions imposedon the fundamental rights of the subject by legislation,they do so pursuant to powers vested in them by theConstitution. We have in truth not the supremacyof the courts but the supremacy of the Constitution.The debates in the Constituent Assembly which precededthe framing of the Constitution of India, likethe debates in the American Convention, show howacute was the controversy over the wisdom of permittingthe legislative will to be questioned by thejudiciary. The makers of the Indian Constitutioneventually chose to subject the decisions of the legislaturein certain matters to a close and an impartialscrutiny by the judiciary in the fullest confidence thatthe judiciary would, in making their determination, beguided solely by the interests of the nation.Conscious of the responsibility and trust reposed inthem, the judges have tried to guard against the intrusionof their personal views in reaching theirdecisions in regard to the reasonableness of legislation.


188 The Common Law in India" In evaluating such elusive factors and forming theirown conception of what is reasonable, in all thecircumstances of a given case it is inevitable that thesocial philosophy and the scale of values of the judgesparticipating in the decision should play an importantpart, and the limit to their interference with legislativejudgment in such cases can only be dictated bytheir sense of responsibility and self restraint and thesobering reflection that the Constitution is meant notonly for people of their way of thinking but for all,and that the majority of the elected representativesof the people have, in authorising the imposition ofthe restrictions, considered them to be reasonable." 20POSITION IN ENGLANDThe supremacy of the rule of the law which is nowan accepted principle of English constitutional law issaid to have its origin in the theory held in the MiddleAges that law of some kind—the law either of Godor man—ought to rule the world. 21 In the thirteenthcentury Bracton adduced from this theory the propositionthat the King and other rulers were subjectto law. He laid it down that the law bound allmembers of the state whether rulers or subjects andthat justice according to law was due both to rulerand subject. This view was accepted by the commonlaw lawyers of the fourteenth and fifteenth centuries.Then came the rise of the power of Parliament whichis said to have " both emphasised and modified thetheory of the supremacy of the law. That the rise20 State of Madras v. V. G. Row (1952) S.C.E. 597, 607.21 Holdsworth, History of English Law, Vol. 2, 121-122, 131-132.


The Indian Constitution 189of the power of Parliament emphasised the theoryis shown by the practical application given to it byChief Justice Fortescue in Henry VI's reign. He usedit as the premise, by means of which he justified thecontrol which Parliament had gained over legislationand taxation. That the rise of the power of Parliamentmodified the theory is shown by the manner inwhich the theory of the supremacy of the law wascombined with the doctrine of the supremacy ofParliament. The law was supreme but Parliamentcould change and modify it." 2aThus English constitutional history tells us thatthe idea of a fundamental law operating as a checkboth on Crown and Parliament prevailed in theseventeenth century. Following medieval precedents(e.g., in 1450 the Court of Common Pleas declareda statute to provide for the custody of the seal of areligious house " to be impertinent to be observedand void" and in 1506 the same court refused togive effect to a statute of Henry V which would havethe effect of making the King a parson 23 ) the courtsenforced fundamental laws against Parliament andstruck down its laws as being against " common rightand reason." These and several other cases havebeen regarded as instances of judicial nullification ofstatutes which were against the fundamental law. Itwould appear to be one of Coke's doctrines thatstatutes contrary to " common right and reason " andtherefore to fundamental law were void. It would22 Keport of Committee on Ministers' Powers, 1932; Eeprint, 1956,p. 71.23 Cited by Eoscoe Pound, The Development of ConstitutionalGuarantees of Liberty, pp. 25-26.


190 The Common Law in Indiaseem, therefore, that there existed at one time evenin England a kind of judicial review of statutes onthe ground that they offended against natural orfundamental law, a position which has some analogyto a law being struck down as being opposed to thefundamental law of the Constitution. However, theidea of a fundamental law overriding parliamentarystatutes soon lost ground in England and the Bill ofRights in 1689 set up parliamentary sovereignty inEngland after the attempt to set up royal absolutismhad failed. The supremacy of Parliament in itspresent form does not appear, however, to have beenfully received till the nineteenth century. Sir WilliamBlackstone would not appear to be clear about theabsolute sovereignty of Parliament in his Commentariespublished in 1765. 2 *The Indian legislatures constituted in British timesunder the various Government of India Acts werelegislatures with powers over circumscribed fieldsthough they had plenary powers in the fields entrustedto them. Questions, therefore, arose about thevalidity of legislation enacted by these legislatures andthe courts in India were, even before the advent ofthe Constitution of 1950, familiar with the doctrineof ultra vires which made laws beyond the powersof the enacting legislature void and unenforceable.It was easy for them, therefore, to give effect tothe doctrine of the voidability of laws on the groundthat they were beyond the powers of the legislaturewhich enacted them when the Constitution of 19502* Cf. Commentaries, Bk. I, pp. 124, 125, 127; J. W. Gough,Fundamental Law in English Constitutional History, p. 190.


The Indian Constitution 191came into force. Indeed the express provision as tojudicial review contained in the Indian Constitutionis said by the Supreme Court of India to have beenenacted as a matter of abundant caution. Even inthe absence of these provisions " if any of the fundamentalrights was infringed by any legislative enactment,the court has always the power to declare theenactment, to the extent it transgresses the limits,invalid." 2SWe may perhaps summarise the fundamental distinctionbetween English constitutional practice andIndian constitutional law in regard to a possiblechallenge to legislation by stating that, whereas inEngland parliamentary legislation can be overthrownonly through the operation of democratic politicalprocesses as a result of which Parliament itself mayrepeal or amend it, in India the challenge to it canbe made in appropriate cases even by legal processand judicial review.DELEGATION BY PARLIAMENTThe experience of all democratic countries shows theenormous increase of delegation of the powers ofsubordinate legislation to the executive and otherauthorities. The extent of such delegation is necessarilywider in a state like India striving after theideal of a social welfare state. It is interesting,therefore, to note the somewhat differing lines ofapproach in England and in India to the problem ofthe validity of delegated legislation. This arises out** A. K. Gopalan v. The State of Madras (1950) S.C.R. 88, atp. 100.


192 The Common Law in Indiaof the basic difference between the powers of thelegislatures in the two countries; one with omnipotentpowers of legislation and the other with restrictedpowers delimited by a written constitution. InEngland no question can arise of Parliament's powerto delegate even the widest legislative functions toa legislature created by it or to the executive. Thecolonial and the Indian legislatures of the nineteenthcentury were created by Acts of Parliament. Indeedthe legislatures of the great Dominions of Canada andAustralia are born of parliamentary statutes. Eventhe foundation of the Republic of India with its legislaturescan be traced to the exercise by Parliamentof its power of delegation. The British Parliament caneven abdicate its functions as it has done in respectof the Dominions by the Statute of Westminster. InIndia the position is very different. The Indian Parliamentmust discharge its primary legislative functionsitself and not delegate them to others. It isfree to legislate within its sphere in any way whichappears to it to be best to give effect to its intentionand policy in making a particular law and it mayfor this purpose utilise any outside agency to anyextent it finds necessary. It cannot, however, abdicateits legislative functions and must, therefore,while entrusting power to an outside agency see thatsuch agency acts as a subordinate authority and doesnot become a parallel legislature. The essential legislativefunctions have been held to consist in declaringthe legislative policy and laying down the standardwhich is to be enacted into a rule of law. Thelegislature must retain in its own hands these essential


The Indian Constitution 193functions. Subject to these requirements the taskof subordinate legislation which by its very natureis ancillary to the statute can be delegated to anyother authority. In India whenever the validity ofa delegated power is challenged the question ariseswhether in delegating the power the legislature hasabdicated its essential function of legislation. 26 Nosuch question can arise in England by reason of thesovereignty of Parliament and its unlimited power oflegislation.SUBORDINATE LEGISLATIONApart from what has been discussed the position inIndia in regard to subordinate legislation is notdifferent from that in England. The exercise of thepowers, if properly delegated, are subject to the controlof the courts which could be invoked if personsentrusted with the statutory powers exceed theauthority conferred on them by the statute. 27 InIndia the exercise of the delegated power so as toaffect the fundamental rights would be struck downfor the simple reason that the repository of delegatedpower cannot act in a manner in which the legislatureitself from which it derives its authority cannot act. 28What Lord Shaw stated in R. v. Halliday is as2« In re The Delhi Laws Act, 1912 (1951) S.C.E. 747, and BajnarainSingh v. Chairman Patna Administration Committee (1955)1 S.C.B. 290.21 Beport of the Committee on Ministers' Powers, 1932; 1956reprint, p. 12. Allen, 0. K., Law in the Making, 6th ed.,pp. 549-555; Radha Krishan v. Compensation Officer, A.I.E.[1954] All. 202.28 Messrs. Dwarka Prasad Laxmi Narain v. The State of UttorPradesh (1954) S.C.E. 803, and The State of Bajasthan v.Nath Mai (1954) S.C.E. 982.


194 The Common Law in Indiaapplicable in India as in England. " The author ofthe power is Parliament: the wielder of it is theGovernment. Whether the Government has exceededits statutory mandate is a question of ultra vires orintra vires. ... In so far as the mandate has beenexceeded, there lurk the elements of a transition toarbitrary government and therein of grave constitutionaland public danger." 29In the course of delegation of power to the executiveit frequently becomes necessary for the legislatureto entrust it with a power to make decisions. Thesedecisions often determine the rights of private personsand result in depriving them of access to the ordinarycourts of law. The ever-growing extension of governmentalactivities, particularly in welfare states, hasgreatly multiplied the occasions on which an individualmay be at issue in regard to his rights with theadministration or with another citizen or a statutorybody. The citizen's rights are thus continually beingadjudicated upon by administrative tribunals whichare growing in number and importance. The generalview is that social and economic changes in all modernstates make the existence of administrative tribunalsas a system of adjudication inevitable. " The newwants of a new age have been met, in a new mannerby giving statutory powers of all kinds " to thesetribunals. The problem therefore in all modern statesis to provide procedures and remedies which willmake the adjudications of these tribunals conform tonatural justice. The citizen who is affected is entitlednot only to just decisions but to decisions which are29 R. v. Halliday [1917] A.C. 260, at 287.


The Indian Constitution 195rendered after giving him an opportunity to be heardand in a manner which will ensure that these tribunalshave acted in accordance with law and not in excessof their authority.ADMINISTRATIVE TRIBUNALSIt is interesting to note how the development of thelaw in regard to the decisions of administrative andinferior tribunals has proceeded on parallel lines inEngland and in India.The scope of the jurisdiction of the High Courtof Justice in England in this regard has been thusstated: " If a properly constituted inferior tribunalhas exercised the jurisdiction entrusted to it in goodfaith, not influenced by extraneous or irrelevant considerations,and not arbitrarily or illegally, the HighCourt cannot interfere. When exercising its supervisorypowers the High Court is not sitting as aCourt of Appeal from the tribunal, but it has powerto prevent the usurpation or mistaken assumption bythe tribunal of a jurisdiction beyond that given to itby law, and to ensure that its decisions are judicialin character by compelling it to avoid extraneousconsiderations in arriving at its conclusion, and toconfine itself to decision of the points which are inissue before it. Likewise a Minister or MinisterialTribunal is not autocratic but is an inferior tribunalsubject to the jurisdiction which the Court of King'sBench for centuries, and the High Court since theJudicature Acts, has exercised over such tribunals." 3030 Eeport of the Committee on Ministers' Powers, 1932; 1956reprint, pp. 98-99; B. v. The Board of Education [1910] 2K.B. 165, 179.


196 The Common Law in IndiaThe House of Lords has expressly decided that thisjurisdiction extends to quasi judicial as well as thejudicial functions. 31The position of the ordinary courts in India inrespect of the decisions of administrative bodies orpersons entrusted with statutory powers has beenexplained by the Privy Council. 32 It has stated thatwhen such decisions are challenged the exclusion of thecivil courts is not to be readily inferred from a statute.Such exclusion must either be explicitly expressedor clearly implied. Even in cases where the statuteexcludes the jurisdiction of the courts the courtscan examine into cases where the statute has notbeen complied with or the statutory tribunal hasnot acted in conformity with the fundamental principleunderlying judicial procedures.The Constitution of 1950 has in this matter takena notable step forward. Having included a Bill ofRights in the Constitution the Constitution-makershad necessarily to provide remedies for the enforcementof these rights. They also envisaged a welfarestate with its inevitable accompaniment of a massof parliamentary and subordinate legislation whichwould involve constant interference with the normalactivities of the citizen. It was, therefore, essentialto provide procedures and remedies which wouldenable the citizen to approach the courts and obtainspeedy and effective redress against interference withhis fundamental rights or an unconstitutional enactmentor unwarranted administrative action. These3132Min. of Health v. The King (on the Prosecution of Yaffe)[1931] A.C. 494.Secretary of State v. Mask & Co. (1940) 67 I.A. 222, at 236.


The Indian Constitution 197remedies are to be found in article 226 and article 32of the Constitution. Under article 226 the HighCourts have jurisdiction throughout the territoriessubordinate to them to issue to any person or authority,including in appropriate cases any Government," directions, orders or writs, including writs in thenature of habeas corpus, mandamus, prohibition, quowarranto and certiorari or any of them," not onlyfor the enforcement of the fundamental rights butalso " for any other purpose." Almost in identicalwords a similar jurisdiction has been conferred byarticle 32 on the Supreme Court of India but thisjurisdiction is restricted to cases of invasion of fundamentalrights. This is a very substantial advanceupon the position that existed in regard to the issueof prerogative writs before the advent of the Constitution.Under the constitutional provisions thecourt's powers are not restricted to the issue merelyof the prerogative writs. They can issue any directionswhatever, these writs being merely illustrativeof the powers the courts possess. In the exercise ofthese powers the courts have refused to be necessarilyguided by conditions which govern the exercise ofthese writs in England. " In view of the expressprovisions we need not now look back to the earlyhistory of procedural technicalities of these writs inEnglish law nor feel oppressed by any difference orchange of opinion expressed in particular cases byEnglish judges," says the Indian Supreme Court.Indeed the courts have declared statutes to be invalidand unconstitutional in the exercise of this jurisdiction.The courts can in the exercise of these powers


198 The Common Law in Indiaalso investigate, if necessary, disputed questions offact.The right to move the Supreme Court for the enforcementof fundamental rights has itself been madea right guaranteed by the Constitution under the headof " Right to Constitutional Remedies." Thus acontravention of his fundamental right entitles thecitizen to seek relief from the highest court in thecountry. Parliament cannot take away his right tothis constitutional remedy nor can the court itselfrefuse to deal with an application which in fact raisesa question of the contravention of a fundamental right.These remedies have been largely availed of by thesubject to his great advantage. The Law Commissionof India of 1955 has stated that " The beneficialeffects of this new jurisdiction cannot be over-estimated.Its existence has made the citizen consciousthat the state exists primarily for his good and that,under its laws, he has rights of which he can obtainquick enforcement by the highest court in the stateat a very reasonable cost. The knowledge that acitizen can bring a matter in a summary mannerbefore the courts in a few days' time after the promulgationof the law or order has made our governmentdepartments wary in their actions. The verylarge number of statutes and orders which have beenstruck down by the High Courts in the exercise oftheir jurisdiction under article 226 is a powerfultestimony to the effective nature and the essentialutility of the remedy." 33Apart from these procedures the Constitution of33 Eeport, 1958, Vol. II, p. 658.


The Indian Constitution 199India has conferred an almost unlimited jurisdictionon the Supreme Court of India which empowers itin its discretion to entertain appeals " from anyjudgment, decree, determination, sentence or orderin any cause or matter passed or made by any courtor tribunal in the territory of India." 3 * The courthas refused to define or set any limits to this jurisdiction." It is not possible to define with anyprecision the limitations on the exercise of this jurisdiction.. . . The limitations, whatever they be, areimplicit in the nature and character of the poweritself. ... It is however plain that when the courtreaches the conclusion that a person has been dealtwith arbitrarily or that a court or tribunal withinthe territory of India has not given a fair deal toa litigant, then no technical hurdles of any kind . . .can stand in the way of the exercise of this powerbecause the whole intent and purpose of this articleis that it is the duty of this court to see that injusticeis not perpetuated or perpetrated by decisions ofcourts and tribunals. . . ." 35 In the exercise of thisjurisdiction the highest court in the land has entertainedappeals from the industrial courts, election tribunalsand a number of other statutory adjudicators.It could therefore be said that in India the powersof the courts in controlling and arresting arbitraryaction by the executive or administrative tribunalsare more far-reaching than in England and can perhapsbe invoked at lesser cost and with greaterexpedition.34 Indian Constitution, Art. 136.35 Dhakeshwari Cotton Mills, Ltd. v. Commissioner of I. T., W.Bengal (1955) 1 S.O.R. 941, 949.


200 The Common Law in IndiaJUDICIAL POWER" In this distinct and separate existence of the judicialpower in a peculiar body of men, nominated indeed,but not removable at pleasure, by the Crown, consistsone main preservative of the public liberty," saidBlackstone. 36 Earlier we have seen how an impartialand independent judiciary was gradually built up inthe British times. The Constitution of India continuedand strengthened this tradition by incorporatinginto itself what may be called an integratedjudicial system designed to function impartially beyondthe range of executive influence and irremovableexcept by Parliament under circumstances prescribedby the Constitution. A judicial system of this naturewas essential in order to preserve and maintain theideals of democracy and freedom and of the Rule ofLaw embodied in the Constitution. Only a judiciaryfirmly entrenched above all pressures could be adequateto perform the wide and weighty functionswhich the Constitution imposes upon the Indianjudiciary.The Constitution has established an integratedjudicial structure empowered to enforce Union as wellas state laws. At the apex of the structure is theSupreme Court of India which is constituted the finalcourt of appeal in all matters whether arising inrespect of state laws or Union laws. As in otherfederations power is reserved to the Union to establishits own courts. 37 No such courts have, however, been36 Commentaries, Vol. 1, p. 269.37 Indian Constitution, Art. 247.


The Indian Constitution 201established and Union laws like state laws are administeredin the states by the state courts. In orderto ensure the maintenance of standards in the selectionof the judiciary, the Constitution has devised amachinery for its selection and has given the higherjudiciary itself a voice in its own selection. TheUnion executive is the appointing authority for theUnion as well as the higher state judiciary. But itis enjoined that these appointments are to be madeafter consultation with the Chief Justice of India inthe case of appointments to the Supreme Court andafter consultation with the Chief Justice of India aswell as the Chief Justice of the state concerned inthe case of appointments to the High Courts in thestates. 38 The state High Courts have also to be consultedby the state executive in the selection of thesubordinate judiciary in the state. 39 Thus in a sensethe Indian judiciary can be said to be autonomous.It is also irremovable as the judges of the SupremeCourt and the state High Courts can be removedfrom their office only on grounds specified in theConstitution and after an address by each Houseof Parliament supported by the vote of a specifiedmajority. 40Though the power of appointment to the superiorjudiciary rests in the Union Government and thepower of removal in the Union Parliament, the Unionas well as the state judiciary have in the exercise oftheir functions shown independence and impartiality3 « Indian Constitution, Art. 124.3» Ibid., Arts. 233 and 234.«° Ibid., Arts. 124, 217.H.L.—12 14


202 The Common Law in Indiain interpreting the Constitution and in issues raisingconflicts between the general and regional governmentsand the executive and the citizen. It is thetradition, in any event in countries which have comeunder the influence of Anglo-Saxon jurisprudence, forthe judges to regard themselves as impartial interpreters,holding the balance even between the claimson the one hand of the general government and onthe other of the regional governments and betweenthe citizen and the legislature or the executive. Sodeeply has the Indian judiciary been imbued withthese traditions that judges, who had expressed theirviews on certain aspects of the Constitution beforetheir appointment, have in the consciousness of theirjudicial role of impartiality been led to modify andchange them.BILL OF RIGHTSA vital difference between the English and Indianconstitutional systems is the incorporation in theIndian Constitution of a Bill of Rights.In England fundamental liberties are protected notby a specific law but by a powerful public opinion.These liberties have remained unshaken in Englandthough theoretically they could be affected and evendestroyed by an Act of Parliament. But Parliamentitself has fought for these liberties on behalf of thepeople against royal absolutism and has been a powerfulforce in the creation and maintenance of theseliberties. " The English lawyer thinks of democracynot in terms of fundamental legal principles. Hehas never tried to express, and does not think of


The Indian Constitution 203expressing the fundamental ideas which are implicit inhis Constitution." 4 xIndia has, however, chosen a different course.Following the pattern of the Constitution of the UnitedStates she has enacted a Bill of Rights. As in othermatters, the enactment of the Bill of Rights in theIndian Constitution has its roots in the historical backgroundof the Constitution. Even when the Governmentof India Act of 1935 was being framed by theBritish Parliament, demands were made on behalf ofIndians for the incorporation of a Bill of Rights inthat Act. That view was rejected on the ground thatsuch a declaration of rights in the abstract wouldserve no useful purpose. With its long history offoreign rule and sensitive to its disabilities and discriminations,the Indian mind had come to regard aBill of Rights as an essential part of a Constitution.Some of the makers of the Indian Constitution werein the vanguard of India's fight for freedom and thememory of their experiences made a declaration ofrights in the Constitution inevitable. " The Indianreaction (in enacting the Bill of Rights), like theAmerican reaction, is in large measure a product ofBritish rule." 42Nor must we forget the wide divergence betweenconditions in England and in India. The Indian legislatureshad not the age-old ancestry and tradition ofthe British Parliament. India is a country of vastdistances inhabited by peoples belonging to different41 Sir Ivor Jennings, Some Characteristics of the Indian Constitution,pp. 3, i.« Ibid., p. 85.


204 The Common Law in Indiaraces and religions and speaking different languages.Many regions now forming part of the country hadnever known democratic government. A large partof the backward population of the country and someminorities required special treatment and protection.The rights and interests of the divergent populationin varying stages of development could be adequatelysafeguarded only by provisions guaranteeing theirrights. At the advent of freedom the position inIndia was in no sense comparable to that in theDominions of Canada or Australia.Further, the trend in modern Constitutions is unmistakablytowards the enactments of a Bill ofRights. This is not unnatural. A democracy meansgovernment by the majority. In such a governmentit becomes necessary to safeguard the essential freedomsof the citizen and particularly of the citizensconstituting the minorities.The Bill of Rights in the Indian Constitution is inpart indicative of peculiar Indian conditions. Whilemost of the rights embody the familiar essential freedomssome of these rights derive from the Indianeconomic and social structure. One may instance theprotection accorded to the distinct language, script,culture and education of the minorities, the protectionagainst traffic in human beings and forced labour, theban on the practice of untouchability, the prohibitionof discrimination on ground of religion, race or casteand equality of opportunity in matters of publicemployment. 4343 Indian Constitution, Arts. 29, 30, 23, 17, 15 and 16.


The Indian Constitution 205It is stated that the " Indian Bill of Rights is basedon no consistent philosophy." 44 The comment hassome force. The fundamental rights in the IndianConstitution may be said to be a combination of theusual Bill of Rights interspersed with provisions whichcould be understood only in the context of contemporaryIndian society.The Indian Bill of Rights lacks the conciseness ofits counterpart in the United States which is a virgindocument. However, in framing her Bill of RightsIndia has immensely profited by the experience of theUnited States of over a century and a half and ofother countries who had founded themselves uponthe Bill of Rights in the American Constitution.The makers of the Indian Constitution were broughtup in the tradition of the British legal system and theyhad learnt to respect and admire the liberties whichwere regarded as the birthright of Englishmen.Some of them had their early training in England.This explains why in the main the fundamental rightsin the Indian Constitution are but the familiar freedomsknown to English constitutional law.It is true that in framing some of the fundamentalrights, such as the right to equality,* 5 the Constitutionborrows the phraseology of the American Bill ofRights. But we must not forget that the United Statesitself based its Bill of Rights on the common law ofEngland. It is not surprising, therefore, that theIndian Bill of Rights, though in a manner routed44 Sir Ivor Jennings, Some Characteristics of the Indian Constitution,p. 50.


206 The Common Law in Indiathrough the Constitution of the United States, has insubstance a common law background and is Britishin its origin.The foundation of the Anglo-Saxon constitutionaltraditions is enshrined in Magna Carta of 1215.That historic charter of freedom was, it is said, anattempt to put in legal terms what later became theleading ideas of constitutional government. Thoughin terms it grants redress to the great landowners, tothe church and to the merchants and traders, in itsgeneral aspect it provides for redress of the commongrievances of all. It ensures security of the person.The free man is not to be imprisoned or banished oroutlawed or disseised or deprived of his establishedprivileges without a lawful judgment or otherwise thanaccording to law.The Second Institute of Sir Edward Coke, the commentaryon the Magna Carta by that universallyrecognised oracle of the common law, was publishedin 1640 by the order of the House of Commons. SirWilliam Blackstone's Commentaries, published in 1765,set forth in its first book the fundamental rights ofthe Englishman. These works were largely drawnupon by the American colonists in their controversywith the British Government before the Americanrevolution and publicists of the revolution based manyof their theories on these works. The period of abouta century during which the British had colonisedAmerica marked in a notable degree the developmentof British constitutional rights. The Bill of Rights(1689), the culmination of generations of struggleagainst the arbitrary government of the Stuart dynasty


The Indian Constitution 207in England, had come into being a century beforeMadison rose in 1789 in the first congress to proposethe first American Bill oi Rights. In the course ofthe eighteenth century the question arose whether theresidents of the thirteen American colonies were truebornEnglishmen and were entitled to the traditionalliberties and immunities enjoyed by Englishmen inEngland. The " declarations and resolves " adoptedby the First Continental Congress in October 1774marked an important stage in the long historicalperspective stretching as far back as Magna Carta.It enumerated the rights which belonged to the colonists" by immutable laws of nature, the principles ofEnglish constitution and the several charters andcompacts " and claimed the right to " life, libertyand property." The Declaration of Independence inthe year 1776 based itself on the natural rights of man.In substance, however, the declarations of 1774 and1776 had claimed the same thing. The declaration of1776 could in a sense be said to be a lineal descendantof the Magna Carta. But its tenor was radicallydifferent. It was a product of the Age of Reason.The common law limitations upon royal authority weretransformed into a natural limitation on all authority.When the American people, after their experience oftheir first attempt to create a national governmentby the Articles of Confederation of 1777 which hadbrought them into difficulties, met in the FederalConvention of 1787 to frame their constitution, theywanted nothing to be left to conjecture. They insistedthat their basic rights be set down in black and white.If the national government was to be strengthened


208 The Common Law in Indiathe more apparent was the need to delimit its powersand to enumerate the liberties which the citizen wasto enjoy. The Bill of Rights and the FourteenthAmendment were declaratory of natural liberties whichwere also common law liberties. " The common lawrights of Englishmen became the natural rights ofman." 46 This brief glimpse of the sources anddevelopment of the American Bill of Rights explainsnot only the insistence of the Indian mind on aconstitutional Bill of Rights; it also accounts for someof the common law freedoms entering the IndianConstitution through the door of the American Billof Rights.PERSONAL LIBERTYThe protection of life and personal liberty is to befound in the Indian Constitution in the words: "Noperson shall be deprived of his life or personal libertyexcept according to procedure established by law." 47The words " procedure established by law " bear aclose resemblance to the phrase " due process of law "in the United States Constitution. It was by theexercise of its powers under the due process clausethat the Supreme Court of the United States establishedits own supremacy over the other two limbsof the state, namely, the executive and the Congress." While the Supreme Court still refuses to define thephrase ' due process of law,' yet whatever it meansat the present time is what the Supreme Court says*• Eoscoe Pound, The Spirit of the Common Law, 1931; reprint,p. 90.* 7 Indian Constitution, Art. 21.


The Indian Constitution 209it means. . . . The most important use to which theUnited States Supreme Court has put the due processclause is to enable it to declare unconstitutional anyacts of legislation which it thinks unreasonable." 4SSoon after the Indian Constitution came into force itwas contended that the powers of the Supreme Courtof India were as wide as those of the Supreme Courtof the United States and that the expression " procedureestablished by law " was but a paraphrase ofthe expression " due process of law " in the AmericanConstitution. The acceptance of such an interpretationwould have resulted not in the establishment ofthe supremacy of the law or of the Constitution butof the supremacy of the courts. The suggested interpretationwas rejected by the Supreme Court. It washeld that the protection of the subject was the protectiongiven to him by the law, statute or enactedlaw. It was urged, and the view was supported byone of the judges constituting the minority, that suchan interpretation would mean " that the most importantfundamental right to life and personal libertyshould be at the mercy of legislative majorities." 49It was also urged that such an interpretation wouldoffend against the very conception of a fundamentallaw, the purpose of which was to protect personsagainst invasion of their rights by legislation. Themajority, however, preferred an interpretation more inconsonance with English principles. " Although ourConstitution has imposed some limitations on the legislativeauthorities, yet subject to and outside such*» Willis, Constitution Law, p. 657.« A. K. Gopalan v. The State of Madras (1950) S.C.E. 88.


210 The Common Law in Indialimitations our Constitution has left our Parliamentand the state legislatures supreme in their respectivelegislative fields. In the main . . . our Constitutionhas preferred the supremacy of the legislature to thatof the judiciary. The English principle of due processof law is, therefore, more in accord with our Constitutionthan the American doctrine which has beenevolved for serving quite a different system." 50 Inthe matter of personal liberty the Indian Constitutionhas adopted English principles. The liberty is to be" a liberty confined and controlled by law." 51Protection is also given against arbitrary arrest anddetention. The arrested person must as soon as maybe after arrest be informed of the grounds of hisarrest, produced before a magistrate within twentyfourhours, given an opportunity to consult a legalpractitioner and to defend himself. 52 These provisionsembody rights which though not found in the commonlaw were later conferred on accused persons bystatutes passed from time to time in England. Noperson can be convicted for an offence except undera law in force at the time of the commission of theact. 53 There would of course be no bar to the BritishParliament enacting an ex post facto law. Yet inEngland the courts would construe legislation whichturns an act till then innocent into an offence asapplying to future acts unless the legislature had said50 Ibid., p. 316." Liversidge v. Sir John Anderson


The Indian Constitution 211otherwise. 54 Blackstone, it will be remembered, denouncedex post facto laws. 55 We have also a provisionthat no person can be prosecuted and punished for thesame offence more than once. 56 " The roots of thatprinciple are to be found in the well-established ruleof the common law of England that where a personhas been convicted of an offence by a court of competentjurisdiction the conviction is a bar to all furthercriminal proceedings for the same offence. . . . To thesame effect is the ancient maxim nemo bis debet punirepro uno delicto ... or as it is sometimes writtenpro eadem causa." 57 At common law an accused onhis trial in a criminal prosecution was not a competentwitness either for the prosecution or for thedefence. 58 Though the common law rule has beenmodified in England by statutes a provision in theIndian Constitution incorporates some aspects of thiscommon law rule and provides that " No personaccused of any offence shall be compelled to be awitness against himself." 59SEVEN FREEDOMSUnder the head "Right to Freedom" the IndianConstitution groups together certain rights which maybe described as the seven freedoms. These arecommon law rights which in England may well be" Butchers' Hide, Skin and Wool Co., Ltd. v. Seacome [1913]2 K.B. 401. 5« Commentaries, Bk. I, p. 46.56 Indian Constitution, Art. 20 (2)." Magbool Hussein v. The State of Bombay (1953) S.C.E. 730,736.58 Halsbury, Laws of England, 3rd ed., Vol. 10, p. 480, para.878. s" Indian Constitution, Art. 20 (3).


212 The Common Law in Indiaput under the comprehensive heading of the libertyof the subject. They are " really implications drawnfrom the two principles that the subject may sayor do what he pleases, provided he does not transgressthe substantive law, or infringe the legal rightsof others, whereas public authorities (including theCrown) may do nothing but what they are authorisedto do by some rule of common law or statute. Wherepublic authorities are not authorised to interfere withthe subject, he has liberties." 60We first have the right to freedom of speech andexpression. 61 This freedom is, however, subject toreasonable restrictions imposed in the interests " ofthe security of the state, friendly relations withforeign states, public order, decency or morality, orin relation to contempt of court, defamation or incitementto an offence." 62 Though different in somerespects, these provisions reproduce broadly the positionin England where the right to freedom of speechor discussion means that " any person may write orsay what he pleases, so long as he does not infringethe law relating to libel or slander, or to blasphemous,obscene, or seditious words or writings." 63 Some ofthe restrictions on the right of freedom of speechin the Indian Constitution may be found in someof the English statutes. 64 The restrictions intended60 Halsbury, Laws of England, 3rd ed., Vol. 7, pp. 195-196,para. 416.61 Indian Constitution, Art. 19 (1) (a).62 Ibid., Art. 19 (2).6364Halsbury's Laws of England, 3rd ed., Vol. 7, p. 197, para. 418.e.g., Treason Act, 1795; Unlawful Oaths Act, 1797; TheatresAct, 1843; Official Secrets Act, 1911; Police Act, 1919; Incitementto Disaffection Act, 1934; and Public Order Act, 1936.


The Indian Constitution 213to protect friendly relations with foreign states findsa parallel in English common law which providesthat a person who publishes any libel or words whichwill expose to hatred or contempt any foreign princeor other persons with intent to disturb peace andfriendly relations between the United Kingdom andthe country to which any such prince or other personsbelong would be guilty of misdemeanour.Another freedom is the citizen's right to assemblepeaceably and without arms. Reasonable restrictionson this right may be imposed in the interests ofpublic order. Here again we have a provision notsubstantially different from the right of public meetingin English law. " Any persons may meet together,so long as they do not thereby trespass uponprivate rights of property, or commit a nuisance,or infringe the law relating to public meetings orunlawful assemblies." 65 In England certain assemblieswhich may not be unlawful according to thecommon law may be regulated by the authoritiesunder statutes. 66 Though the Public Order Act, 1936,altogether prohibits the carrying of unauthorisedweapons at public meetings, the carrying of arms inan assembly, it would appear, does not make anassembly unlawful under the common law. In India,however, the bar to carrying arms to an assemblyis absolute.The right to form associations or unions is in India« 5 Halsbury's Laws of England, Vol. 7, p. 198, para. 418.66e.g., Tumultuous Petitioning Act, 1662; Riot Act, 1714; SeditiousMeetings Act, 1817; Unlawful Drilling Act, 1819;Metropolitan Police Act, 1839; Public Meetings Act, 1908;Public Order Act, 1936.


214 The Common Law in Indiasubject to reasonable restrictions imposed in the interestsof public order or morality. 67 Freedom ofassociation is a common law right subject to restrictionsplaced on it by statutes such as the CompaniesAct of 1948 or the Trade Union Acts. The crimeand tort of conspiracy are the principal restrictionswhich English law places upon freedom of association.68 The law in India relating to associations likecompanies and trade unions broadly follows Englishstatute law. We have in India the Societies RegistrationAct, 1860, the Co-operative Societies Act,1912, the Trade Unions Act, 1926, and the IndianCompanies Act, 1956, which is largely based on theEnglish Companies Act of 1948.Among the guaranteed freedoms are the rights tomove freely throughout the territory of India and toreside and settle in any part of its territory. Theserights have their origin in the differences in race,religion and language of the population in differentareas of the country and the exclusive and parochialtendencies which have been fostered by these differences.The feeling of a common Indian citizenshipand pride in Indian nationhood are plants of recentgrowth which need nurture and protection. Theserights are an attempt to further the growth of unityand homogeneity all over the land.The freedom to acquire, hold and dispose of propertyis reminiscent of the three rights in privateproperty inherited by every Englishman referred toby Blackstone which are said to consist " in the free" Indian Constitution, Arts. 19 (.1) (e) and 19 (4).68 Wade and Phillips, Constitutional Law, 5th ed., p. 390.


The Indian Constitution 215use, enjoyment and disposal of all his acquisitions,without any control or diminution, save only by thelaws of the land." Statutes passed by the BritishParliament have from time to time tried to keep thebalance between private rights to property and socialinterest." The principle that runs through thesestatutes would appear to be that restrictions may beimposed upon the exercise of rights to private propertyon grounds of public order or public health andpolicies evolved for the "common good." Similarare the reasonable restrictions which may be imposedin India on the citizen's rights to property in thepublic interest. Statutes restricting rents, relievingagricultural indebtedness, bringing about agrarian reforms,ensuring supply of commodities essential tothe community and imposing restrictions on the rightof management of limited companies have been enactedin India. Their validity has been upheldnotwithstanding the fundamental freedoms in regardto rights to private property.The Constitution enabled the state to acquire thecitizen's property for a public purpose under theauthority of a law. But the law had to providecompensation for the property taken or specify principlesfor the determination of the compensation. 70Agrarian reform legislation in various parts of thecountry, by which interests in land intervening betweenthe state and the cultivators were acquired,provided compensation which was challenged as being89 Supplies and Services (Extended Purposes) Act, 1947; Monopolyand Restrictive Practices (Inquiry and Control) Act, 1948;and Bent Restriction Acts.70 Indian Constitution, Art. 31.


216 The Common Law in Indiainadequate and even illusory. Payment of compensationin the sense of a proper market value was,in the circumstances of the country, not practicable.The courts, faced with the task of interpreting what" compensation" in the constitutional provisionmeant, could only answer by stating that the expropriatedowner must be paid the market value of hisinterest. These decisions were followed immediatelyby an amendment of the Constitution which in substancetook away the powers of the courts to adjudgethe compensation and made the legislative judgmentas to the adequacy of the compensation final. Thuswas removed a difficulty created by a constitutionalprovision in the way of urgently needed changes inthe agrarian pattern in some parts of the country.The last of the freedoms is the right to practisea profession and to carry on an occupation, trade orbusiness. The right is to be subject to restrictionsimposed in the interests of the general public andparticularly to the carrying on by the state of anytrade, business, industry or service. The provisionenabling state monopolies to be established wasbrought in by an amendment of the Constitution,the courts having held that, though the state mayregulate the enjoyment of these rights, it could notaltogether prohibit their exercise.Each of the freedoms we have discussed is, as wehave seen, subject to legislative restrictions providedthey are reasonable and imposed in the interests ofthe general public. The phrase " in the interestsof the general public" reminds us of Blackstone:" Political ... or civil liberty is no other than


The Indian Constitution 217natural liberty so far restrained by human laws (andno further) as is necessary and expedient for thegeneral advantage of the public." 71 These provisionsput on the courts the difficult duty of deciding,whenever legislation is challenged, whether it is inthe circumstances reasonable and has been enactedin the public interest. The standard to be appliedby the courts must necessarily vary according to thefacts and circumstances surrounding each piece oflegislation. However, the manner in which the courtsshould proceed in deciding the question whether legislationis reasonable has been broadly stated by theSupreme Court of India in the following words:" It is important in this context to bear in mindthat the test of reasonableness, wherever prescribed,should be applied to each individual statute impugnedand no abstract standard or general pattern ofreasonableness can be laid down as applicable to allcases. The nature of the right alleged to have beeninfringed, the underlying purpose of the restrictionsimposed, the extent and urgency of the evil soughtto be remedied thereby, the disproportion of theimposition, the prevailing conditions at the time,should all enter into the judicial verdict." 72Though the Constitution embodies these fundamentalfreedoms, it also contains a somewhat startlingrestriction on them in the shape of a power in thelegislature to enact laws on what has been called" preventive detention." The expression is used71 Blackatone, Commentaries, Vol. 1, p. 125." State of Madras v. V. 0. Row (1952) S.C.E. 597, 607. Indian Constitution, Arts. 22 (3) (b), (4), (5), (6) and (7);Seventh Sched., List I, entry 9; List in, entry 3.H.L.—12 15


218 The Common Law in Indiato distinguish this kind of detention from the detentionwhich results after a person has been prosecutedand punished for a crime. These powers originatedin certain emergency provisions enacted in Britishtimes. Disturbed conditions after the partition ofIndia in 1947 and in some parts of the country insubsequent years led the framers of the Constitutionto enact provisions empowering detention of thisnature. Such detention can be authorised only forreasons connected with defence, foreign affairs, thesecurity of India, the security of the states, themaintenance of public order and the maintenance ofessential supplies and services. Though an opportunityis afforded to the person detained to answerthe grounds for his detention put forward by theexecutive and his case is examined by a judicial body,such detention is in essence an arbitrary interferencewith the liberty of the subject who is denied a hearingand a judicial trial. Public opinion has naturallybeen very critical of the grant of such a power bythe Constitution. The courts of law, while recognisingthe need for such measures during times of emergency,have persistently and vigorously disapproved the useof these powers in normal times. Indeed the courtshave attempted by their interpretation of the Constitutionto narrow down to the utmost limits thepowers of preventive detention.FREEDOM OF CONSCIENCEThe freedom of conscience known to English commonlaw has been given a prominent place in the IndianBill of Rights. Subject to public order, morality and


The Indian Constitution 219health all persons are equally entitled to freedom ofconscience and the right freely to profess, practiseand propagate religion. 74 With this freedom is associatedthe freedom of every religious denominationto establish and maintain religious and charitableinstitutions, to manage its own affairs in matters ofreligion and to acquire and administer property forthe purpose. 75 That, however, is not to prevent thestate from regulating economic, financial or othersecular activities associated with religious practice. 76The cultural and educational rights of minorities suchas the establishment and administration of educationalinstitutions of their choice and conserving theirlanguage, script or culture are also protected. 77 TheRepublic of India knows no state religion. Notaxation can be levied for the promotion of any particularreligion or religious denomination. Nor canany religious instruction be provided in any educationalinstitutions wholly maintained out of statefunds. 78 The state in India stands above diversityof religions and religious creeds, maintaining a strictneutrality and protecting the observance of all religiouspractices and cultures of different groups.India has been described as a secular state.The Indian Constitution provides that the stateshall not deny to any person equality before the lawor the equal protection of the laws. 79 "Equalitybefore the law " is an expression familiar to Englishconstitutional lawyers. " Equality before the lawmeans that among equals the law should be equal" Indian Constitution, Art. 25 (1). " ibid., Art. 26.'« Ibid., Art. 25 (2). " Ibid., Arts. 29 and 30. Ibid., Arts. 27 ami 28. "• Ibid., Art. 14.H.L. 15*


220 The Common Law in Indiaand should be equally administered, that like shouldbe treated alike." 80 The phrase " equal protectionof the laws " is derived from the Constitution of theUnited States. The fundamental right to equalitybefore the law strikes at the enforcement of invalidlaws, 81 as well as the unequal enforcement of validlaws. 82 Equal protection of the laws means the rightto equal treatment in similar circumstances both inthe privileges conferred and in the liabilities imposedby the laws. 83The Indian courts have stretched the protection ofthe Bill of Rights even further than the Americancourts. In the United States a distinction has beendrawn between fundamental rights for the benefit ofthe citizen and those based on state policy. A citizencould waive a right created for his benefit but notone based on state policy. Recently, the SupremeCourt of India has, by a majority, refused to acceptthis doctrine and regarded all fundamental rights asresting on state policy. The citizen may not therefore,even if he wishes, forgo his basic rights. 84DIRECTIVE PRINCIPLESWe have in the Constitution apart from the Bill ofRights " Directive Principles of State Policy." Theseare based on the Irish Constitution. These principles80 Sir Ivor Jennings, Law of the Constitution, 3rd ed., p. 49.si Bom Prasad Narayan Sahi v. The State of Bihar (1953) S.C.B.1129.8 2 V. G. Roto v. The State of Madras, A.I.E. (1951) Mad. 147,176-177, F.B.83 The State of West Bengal v. Anwar Ali Sarkar (1952) S.C.R.284, 320.84 Basheshar Nath v. /. T. Commissioner, A.I.R. [1959] S.C. 149.


The Indian Constitution 221are not to be enforceable by courts. But they areto be fundamental in the governance of the countryand it is to be the duty of the governments, legislaturesand local authorities to apply these principlesin making laws. 85 These directives are wide in theirsweep and embrace all the objectives of a modernwelfare state. One of the directives seeks the promotionof international peace and security. Thoughthese principles have no obligatory force they serveas beacon lights guiding state and other authoritiesin their movement towards building a welfare state.The state is directed to shape its policies towardssecuring adequate means of livelihood to citizensequally, to secure the distribution of ownership andcontrol of the resources of the community so as tosubserve the common good and so to work the economicsystem as to prevent concentration of wealth andmeans of production to the common detriment. TheConstitution endeavours to put before the authoritiesthe ideal of social and economic uplift which has beenso largely achieved in England. These fundamentalaxioms guiding state policy, though not obligatory,have been regarded by the courts of law as indicativeof what would be public purposes and the interestsof the general public. Restrictions imposed by lawson the freedom of the citizen have been regarded asreasonable if they appear to have been imposed infurtherance of these directive principles of statepolicy. In a manner these principles have been helpfulto the courts in the performance of their oneroustask of judicial review.85 Indian Constitution, Arts. 36 and 51.


222 The Common Law in IndiaAMENDMENTSThe Englishman may well ask how rapid economicprogress and a social welfare state can be achievedunder a written constitution which with its limitedpowers of legislation and Bill of Rights must impedethe progress of all legislation designed for these purposes.Difficulties have in this respect undoubtedlyarisen in a certain measure by reason of some constitutionalprovisions. However, courts of law, themselvesimbued with the ideals of progress and socialwelfare, have striven to their utmost in the exerciseof their power of judicial review to further, consistentlywith the fundamental law, the objectivesproclaimed by the Constitution. On occasions whenthe provisions of the Constitution created impedimentswhich were insurmountable the Constitutionhas been amended. In the short space of about tenyears there have been eight amendments of the IndianConstitution.Fortunately the method of amendment provided bythe Constitution strikes a just balance between flexibilityand rigidity. It provides a variety of amendingprocesses. Some amendments can be made by ordinarymajorities of Parliament. Additional safeguardsare, however, provided in the amending process inregard to those parts of the Constitution which areconcerned with the division of power between thestates and the Union. In such cases the concurrenceof the legislatures of half the states is required. Inthe words of Professor Wheare " This variety in theamending process is wise but it is rarely found." 8686 K. C. Wheare, Modern Constitutions, p. 143.


The Indian Constitution 223In its preamble the Indian Constitution states thesovereign resolve of the people of India to secure toits citizens justice in the social, economic and politicalfields, liberty in all spheres, equality of status andopportunity; and the promotion among them all offraternity assuring the dignity of the individual andthe unity of the nation. The comprehensive characterof this preamble has been referred to by ProfessorErnest Barker in his preface to his treatise on ThePrinciples of Political and Social Theories. He hasreproduced the preamble after the table of contentsin his book as it seemed to him, when he read it," to state in brief and pithy form the argument ofmuch of this book; and it may accordingly serve asa keynote. I am all the more moved to quote it asI am proud that the people of India should begintheir independent life by subscribing to the principlesof a political tradition which we in the West callWestern but which is now something more thanWestern."


EPILOGUEWE have seen how the principles of the Englishcommon and statute law took root gradually in Indiain the seventeenth and eighteenth centuries, and howthey were, with suitable changes, eventually firmlyembedded in the structure of the great Indian Codesin the nineteenth century. In areas like that of civilwrongs independent of contract which had remainedunoccupied by the Codes the Indian courts filled thevacuum by drawing freely upon principles found inthe common law of England and the decisions of theEnglish courts.Lord Bryce 1 has compared the adoption of manybranches of English law as the law in force in Indiawith the manner in which Roman law became thelaw of the different countries forming part of theRoman Empire. Professor Holdsworth, however,thinks that a more exact comparison would have beenbetween " the reception of English law in India, andthe reception of Roman law in the states of modernEurope from the twelfth to the sixteenth centuries.It would have been more exact for two reasons. Inthe first place the states of modern Europe receivedRoman law not because they were subjugated byRome but because Roman law was more fit, thanany code of law of which they had knowledge, tosolve the problems of the more advanced stage ofcivilization to which they were attaining. It isi " The Extension of Eoman and English Law throughout theWorld," Studies in History and Jurisprudence.224


Epilogue 225exactly for the same reason that the rules of Englishlaw have been introduced . . . into British India.... In the second place, the Roman law, when itwas received, was adapted to its new environment.. . . So, in India, we may expect to see that theneeds of India may produce modifications in Englishrules of law which, with the help of the technicalreasoning of the common law, will produce newdevelopments of common law principles." 2The expectation has come true.For over a hundred years distinguished jurists andjudges in India have, basing themselves upon thetheories of English common law and statutes, evolveddoctrines of their own suited to the peculiar needand environment of India. So has been built upon the basis of the principles of English law thefabric of modern Indian law which notwithstandingits foreign roots and origin is unmistakably Indianin its outlook and operation.How, one may ask, does independent India lookupon the system of laws created by the collaborationof great English and Indian minds P Conscious of itssuitability to the needs of the people and the serviceit has rendered as a great influence welding thecountry together, the makers of the Indian Constitutionhave left untouched the entire existing system.Though the political ties have altered, the Indian legalsystem based on English law still endures. Says theConstitution: " All the laws in force in the territoryof India immediately before the commencement of2 W. S. Holdaworth, Preface to the 1st ed. of the Law of Torts,by 8. Kamaswamy Iyer.


226 The Common Law in Indiathe Constitution are to continue in force until altered,repealed or amended." 3 This provision embracesnot only the statutes in force at the date of theConstitution but also personal and customary lawsand the common law principles applied in India byIndian judicial decisions. Though the Constitutionenvisages in the course of years the substitution ofEnglish by an Indian language acceptable to themajority of the nation, the language of the law andof the superior law courts still continues to beEnglish. Decisions of the English courts are yetfreely referred to and cited in the Indian courts andtreated with respect. It may, therefore, be said thatthe evolution of Indian law continues to be largelyinfluenced by the development of English law andthe decisions of English courts.One may perhaps envisage the future in the wordsof Lord Wright: "In Blackstone's day the commonlaw was the law of a few million people in Englandand Ireland. . . . Now in these islands there maybe perhaps forty millions living under English law,but the common law has long passed its old boundaries.Under its sway live teeming millions of theUnited States. . . . Then there are Canada, Australiaand New Zealand, great now but with unforeseeablepotentialities. The enormous sub-continent of Indiahas adopted, except for family or other racial orreligious law, the common law which there regulatesthe great mass of dealings between man and man.In each of these great collections of mankind thereare judges enunciating the law and schools teaching3 Art. 372.


Epilogue 227it, and professors meditating upon it, seeking tocriticise and reform it. England cannot have a monopolyor even a primacy in this great and widespreaddevelopment." *With the ever-growing expansion of Indian legalthought there is bound to be a greater interplaybetween legal minds in India and elsewhere in theworld of Anglo-Saxon jurisprudence. As judges andlawyers in India resort freely to English decisions somay, in course of time, the English courts recogniseIndian contributions to legal thought and principles.* Legal Essays and Addresses, Preface, p. xiii.

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