The Common Law in India - College of Social Sciences and ...

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.