The Indian Courts in the absence of any specific law are enjoined to decide cases “according to justice, equity and good conscience.” The expression “justice, equity and good conscience” has been interpreted to mean “the rules of English law if found applicable to Indian society and circumstances”; Waghela Rajsanji v. Shekh Masluddin (1887) 14 IA 89 at 96 (PC). Sir Frederick Pollock prepared a draft code of torts for India but it was never enacted into law. The law of civil wrongs in India is almost wholly the English law which is administered as rules of “justice, equity and good conscience.” [See Setalvad, The Common Law in India, original edition, p. 110]. The Indian Courts, however, before applying any rule of English law can see whether it is suited to Indian society and circumstances. The application of the English law in India as rules of justice, equity and good conscience has, therefore, been what Setalvad calls a “selective application.” The learned author quotes a number of illustrations where the Privy Council and the Indian Courts refused to apply rules of English law as they were unsuitable to Indian conditions; (The Common Law in India, pp. 53 to 56). Further, in applying the English law on a particular point the Indian, Courts are not restricted to the common law. The English law consists both of common law and statute law and the Indian Courts can see as to how far a rule of common law has been modified or abrogated by statute law of England. There is no doubt a presumption that a rule of common law is in consonance with justice, equity and good conscience. But how can that presumption continue if the country of its origin has itself rejected the rule and has made new rules in its place. If the new rules of English law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it would be open to us to reject the outmoded rules of common law and to apply the new rules. It is on these principles that this High Court in AIR 1937 354 (Nagpur) refused to apply the doctrine of common employment in so far as it was abrogated by the Employers’ Liability Act of 1880. In that case Stone, C. J. observed as follows:
“I am of the opinion however that in considering what is to-day consonant to justice, equity and good conscience one should regard the law as it is in England to-day, and not the law that was part of the law of England yesterday. One cannot take the Common Law of England divorced from the statute law of England and argue that the former is in accordance with justice, equity and good conscience and that the latter which has modified it is to be ignored to-day in England, so far as this case is concerned.”
“It is true that in considering what the Common law of England is, one has not to look at the statute law of England; but the law of England is composed of both, and one seeks guidance when determining what is justice, equity and good conscience not by looking at a particular branch of the law in England, but by looking at what is the law of England at present in force, and even then one is not compelled to apply that law unless one is of the opinion that bearing in mind the circumstances as existing in India today, that law can according to justice, equity and good conscience be here applied.”
On the same point Niyogi, A. J. C. in the same case said:
“Any Court in India which takes recourse to the Common law of England and seeks to apply its principles to India cannot afford to ignore the extent to which the Common law stands abrogated by statute.”
“It, therefore, appears to me that it is manifestly anomalous and illogical to apply, in the name of justice, equity and good conscience, to India the doctrine of Common law which is no longer regarded at its source as fair and equitable and enforced as such.”
The defence of contributory negligence that a plaintiff who is only partly to blame for the accident cannot recover any damages is on the face of it illogical. Although many explanations are given of this rule, its origin was more probably due to procedural and pleading anomalies of the old common law. Lord Wright in an article in Modern Law Review said on this point as follows:
“The precise explanation of this curious rule, that the plaintiff who is in any way at fault cannot recover anything from the principal wrong-doer, seems to have been that the common law courts could not, or would not, apportion in pieces the damage contributed to, both by the plaintiff and the defendant, as the Admiralty Court did. It has been suggested in one place that the purpose was moral, namely to inculcate care; or it may have been a scholastic but fallacious attempt to apply in strict formal logic, the principle that causa proxima, or the last cause, is what is to count. It was, however, more probably due to procedural and pleading points, like other anomalous parts of the old common law. The plaintiff could declare upon the defendant’s negligence, as in Davies v. Mann (1842) 10 M & W 546 or nuisance, as in Butterfield v. Forrester (1809) 11 East 60. Against that declaration, the defendant would plead the general issue, simply the words ‘not guilty’, and that was a sufficient plea to entitle him to show that the accident was in part due to the plaintiffs own negligence; thus the plaintiff who had alleged that the accident was due to the defendant’s negligence failed.” [13 MLR 5].
Lord Wright further tells us that as long back as 1887 Fry, L. J., a great Judge, demanded why the Court could not be empowered to divide the loss; [13 MLR 2.] In Sparks v. Edward Ash. Ltd. (1943) 1 KB 223 at p. 230. Scott, L. J. referred to the “harsh and often cruel bearing of our common law doctrine of contributory negligence” and stressed the need for early law reform. The reform, as already stated, came by legislation in 1945. Even before it the Admiralty Courts had power to apportion the blame under the Maritime Conventions Act, 1911, which is applicable to India. Should we then continue to apply the doctrine of contributory negligence in India as a rule of equity, justice and good conscience when it has been rejected in the country of its origin being a harsh and cruel doctrine of the common law? Our answer is clearly in the negative. The principle of apportionment enacted in the English Act of 1945 is more in consonance with justice, equity and good conscience and since we can look to the English law as it is, we must apply this principle in place of the old rule of contributory negligence. We are happy to note that a similar view was taken by Krishnan, J. C. in State v. Lalman Badri Prasad AIR 1954 MP 17 at p. 24 and a leading Indian text book also commends this view; (See, S. Ramaswami Iyer, The law of Torts, Sixth edition, p 447).