IN INDIA AND PAKISTAN

But gradually better-trained lawyers found their way into the judicial service of the East India Company. In 1831 the celebrated Raja Ranunohun Roy had recommended in an influential book that European judges sent to India should be at least twenty-four years of age, and should have a certificate of proficiency in English law.^{[32] [33] His notion, which was eminently sound, was that a judicial outlook and ability were essential in the judges, and that it was more practical to expect those in someone who had been trained in his own native system of law through materials in his own language than in those who picked up the methods of the existing courts by a hotchpotch casual experience of the medley of laws administered there.}

From 1880, or thereabouts, to the present day the formula has meant consultation of various systems of law according to the context. The dictum in the Privy Council which is so often cited,⁴ and which leads to the view that English law will first be consulted wherever the formula applies, is just not true. In trusts, guardianship, tort and con­tract, English law is indeed looked to first. So also in conflict of laws questions (on topics like domicile), and constitutional matters, though American rules frequently compete for attention, if not as frequently as might be desirable. In those contexts where English law is consulted

¹ Waghela v Sheikh (1887) 14 I.A. 89, 96; In the matter of the petition of Kahandas (1881) 5 Bom. 154, 158; In the matter of Saithri (1891) 16 Bom. 307; FL J. Walter v M. J. Walter (1927) 55 Cal. 730, 741; Mollwo v Court of Wards (1872) LA. Sup. Vol. 86.

¹ Dada Honaji v Babaji (1865) 2 B.H.C.R.

¹ Cf. Mehrban (1930) 57 LA. 168, 170=11 Lah. 251 with Muhammad v Abbas (1932) 59 LA. 236=7 Luck. 257.

* Waghela v Sheikh (1887) 14 LA. 89, 96 (a guardianship case): ‘In point of fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances’. A different tone was taken in Guthrie v Abool (1871) 14 M.LA. 53, 65 cf. Muhammad v Abbas (cited at n. 3 above).

as a matter of course, there is no reason to suppose that English comnion law, as distinct from English law as a whole, ought to be regarded. The suggestion that we have to consider particularly the common law, to the exclusion of statutory amendments,^[XXXV] is incorrect: it is to a developed system of law that we must refer, and we cannot ignore the developments which have occurred in the system we choose for first reference. The correct position is explained in the frequently- cited passage from the judgment of Barnes Peacock, C.J., in Degum- baree Dabee v Eshan Chunder Sein:¹

‘Now, having to administer equity, justice and good conscience, where are we to look for the principles which are to guide us? We must go to other countries where equity and justice are administered upon principles which have been the growth of ages, and see how the courts act under similar circumstances; and if we find that the rules which they have laid down are in accordance with the true principles of equity, we cannot do wrong in following them.’

As Stone, C.J., said in Sec. of State v Rukhminibai;*

‘... one shall regard the law as it is in England today, 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.’

In the former case English cases were cited as the latest exponents; in the latter the doctrine of ‘common employment’ was rejected because it had been abolished in England.

In other fields of law the priority of English rules is by no means admitted. Where the systems of personal law are silent, or where they are inapplicable because the religions of the parties differ, the English law, and indeed other systems of foreign law, seem hardly the obvious choice. In practice analogies are sometimes drawn from the nearest personal law. The effects can be incongruous, but perhaps less harm is done than by the application of a system utterly unconnected with the

parties’ contemplation when they entered into the transaction which gave rise to the action. Where there is no possibility of reference to a personal law, reference to no specific law, to a statute, or to the English law as a last resort is found. Instances where the English law has been repudiated as not in accordance with the law usual in civilized coun­tries,¹ as unsuited to India, or to the case,¹ and so not applied there, are not infrequent. In Raj Bahadur v Bishen DayaP the family were neither Hindus nor Muslims, but the family had followed the Hindu law of inheritance by custom and the Hindu law was applied to them. One of many instances of silent reference to the formula is found in Chathunni v Sankaran* where a patrilineal man married a matrilineal woman and it was held that natural justice required that the child should inherit patrilineally through his father and matrilineally through his mother, a situation not contemplated by any system of personal law. Radha v Raj KuaP is perhaps an example of reference to a concept of justice in the judge’s mind which has a distinctly liberal tinge, not referable to any particular system of law, and not apparently due to English law. A man lived with a woman of lower caste whom he could not marry and was outcasted. He died, and the woman held property which was acquired by him and died leaving it to her children by him. His brothers, who had remained in caste, sued for this property, claiming that the woman and her illegitimate issue had no right to it. The court held that as the property was not ancestral and the brothers had contributed nothing to its acquisition they were not entitled to it, but that justice, equity and good conscience gave it to the children. In Jagarnath Gir v Sher Bahadur Singh^[36] the formula allowed a mother to succeed to her illegitimate child. In that case analogies from the Anglo-Hindu law were drawn upon. In Viswanatha Mudali v Dorais- wami’ it was held that dancing-girls, whose customs in many respects differed from the personal law, were to be governed by Hindu law or by analogies drawn from the Hindu law. In T. Saraswathi Ammal v JagadambaP it was held that propinquity, being a fundamental principle of Hindu law, could be relied on under our principle to enable the dancing-girl daughter and the married daughter of a woman to succeed together to her property in the absence of a customary rule to the contrary. In Sudarshan Singh v Suresh Singh^[37] it was held that the illegitimate son and illegitimate daughter of a Hindu woman share her estate equally, though if Hindu law had been applied by analogy the daughter would have been preferred to the son. In Iravi Pillai v Mathevard a problem in the residual law to be applied to matrilineal families was solved by the application of Hindu law, i.e. patrilineal law, a system which had been applied previously to fill gaps in the custom­ary matrilineal systems. In Pavitri v Katheesumma* a Muslim male had had an illegitimate daughter by a Hindu female. The daughter sued for maintenance out of his estate. This was refused to her on the ground that justice, equity and good conscience, whether one searched the Hindu law or the English common law, was hostile to such claims. In Robasa v Khodadad,* a case recently followed in Pakistan,⁵ a spouse was converted from Zoroastrianism to Islam. It was held that under our principle, which by no means required reference to English law (which in any case provided no helpful analogies), a party to a solemn pact could not bring it to an end by unilateral act, and the marriage did not stand dissolved. It was not possible to apply the Islamic law, which was applicable only where both parties were Muslims.

A further use for the formula arises where the doctrines of the personal laws are obscure because of differences of opinion between the native jurists. In A{i% Bano v Muhammad Ibrahim* it was held that a choice most consistent with justice, equity and good conscience could be made between the conflicting opinions in Islamic law; and a similar view was evinced with reference to Hindu law in Rakhalraj v Debendra?

It remains to discuss a peculiar feature of ‘justice, equity and good conscience’ as known in South Asia. Repeatedly advocates attempt to argue that a provision of the personal law, or indeed of some statute, is not to be applied in the circumstances because it would be contrary to equity and good conscience so to do. In no case have they succeeded. It is very curious that this argument should be raised, since in Moon- shee Btqloor Ruheem v Shumsoonnissa Begum* the Privy Council indignantly and with great emphasis repelled the notion that a definite rule of the personal law could be nullified because it did not square with the court’s notion of justice, equity and good conscience. Sir James W. Colvile said:¹

‘The passages just quoted, if understood in their literal sense, imply that cases of this kind are to be decided without reference to the Mahomedan law, but according to what is termed, “equity and good conscience”, i.e. according to that which the judge may think the principles of natural justice require to be done in the particular case. Their Lordships most emphatically dissent from that conclusion. It is, in their opinion, opposed to the whole policy of the law in British India, and particularly to the enactment (Reg. IV of 1793, s.15)... which directs, that in suits regarding marriage... the Mahomedan laws with respect to Mahomedans... are to be considered as the general rules by which Judges are to form their decisions; and they can con­ceive nothing more likely to give just alarm to the Mahomedan community than to learn by a judicial decision that their law, the application of which has been thus secured to them, is to be over­ridden upon a question which so materially concerns their domestic relations. The Judges were not dealing with a case in which the Mahomedan law was in plain conflict with the general municipal law, or with the requirements of a more advanced and civilized society—as, for instance, if a Mussulman had insisted on the right to slay his wife taken in adultery. In the reports of our Ecclesiastical Courts there is no lack of cases in which a humane man, judging according to his own sense of what is just and fair, without reference to positive law, would let the wife go free; and yet, the proof falling short of legal cruelty, the Judge has felt constrained to order her to return to her husband.’

This left it open to be supposed that the personal laws could be overridden if they were inconsistent with the requirements of a more advanced and civilized society, and indeed in Mahomed Kadar v Ludden* it was contended that the Islamic institution of mut‘a (the temporary marriage amongst Shias) was subject to modification disallowing the husband’s right to divorce unilaterally. It was however held that what the Privy Council had in mind was inhumanity or barbarity, and that short of these the personal laws could not be impugned. Yet similar attempts are regularly made even in these days. Again and again we find the judges saying that the provision of law is

¹ At p. 614. ² (1886) 14 Cal. 276, 286-7.

not repugnant to those principles¹—and rightly so, for, as we have seen, there is no ground for supposing that in South Asia the formula operates as a repugnancy rule. Where we are concerned with custom., no doubt a custom is to be followed if not contrary to natural justice: but that is another question entirely. The equity which ancient Roman advocates used to urge upon the court, aequitas in sense (i), and the ‘equity of the statute’ which flourished in England until the eighteenth century, have no place in modem South Asia.

IN AFRICA

A complete survey of the scope of the phrase in Africa would be impos­sible in this already lengthy paper. Moreover, it seems that many valu­able decisions are not published. It is clear that reference to some Indian cases has taken place,² but that on the whole judges prefer to treat the formula as if it meant ‘public policy’, ‘natural justice’, and the like. But an instinct to refer to a developed system of law, and in particular one which is accessible to the practitioners as well as to the court, is well evidenced³ and is, as we have seen, perfectly sound in principle.

It is no mystery how the formula came to Africa. As soon as it was determined that the administration of African customary law should be integrated with the judicial administration of the Supreme Court of the Gold Coast, a reorganization of the jurisdiction and practice of that court required a definition, in s. 19 of the Supreme Court Ordinance of the Gold Coast, 1876, of the scope within which native laws or customs should be judicially applied. We have already seen that customs were to be enforced if not repugnant to natural justice, equity and good conscience (or ordinances for the time being in force), and that ‘in cases where no express rule is applicable to any matter in controversy, the court shall be governed by die principles of justice, equity and good conscience’. Similar provisions are to be found in the laws of Gambia, Sierra Leone, Nigeria and Northern Rhodesia.

Instructions for drawing up the Ordinance were communicated by die Colonial Secretary, Lord Carnarvon, on 16th April 1875/ It was then the custom to supply the Queen’s Advocate, Mr Chalmers, with

* Km. N. Sp. N. Valliammal v J. A. Ramachandra A.I.R. 1959 Mad. 433; Revappa v Balu A.I.R. 1939 Bom. 59, 61 Col. i.

^J H. W. Hayes Redwar, Comments on some Ordinances o^f the Gold Coast Colony (London, 1909), 59, 65.

’ Views cited by E. Guttman (1957) 6 I.C.L.Q. 4Oif, at 412.

⁴ Despatch no. 55 of that date. P.R.O., C.O. 96/116. Sept. G.C. No. 10, 867, sent September 6,1875, received October 1, 1875.

copies of Indian statutes on subjects under consideration for legislation.¹ Here was no exception: various ‘Laws’ were sent out, and Mr Chal­mers says, ‘I have adopted very numerous provisions from these laws; but not without carefully considering the questions of local suitability which presented themselves in each instance.’² Although he did not refer to the [Indian] Punjab Laws Act, Act IV of 1872, it is quite clear that be consulted it.³ The relevant provisions of that Act are contained in ss. 5-7.

s.5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastards, family relations, wills, legacies, gifts, partition, or any religious usage or institution, the rule of decision shall be—

(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been declared to be void by any competent authority;

(3) the Muhammadan law.. • and the Hindu law...

s.6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience.

s.7. All local customs and mercantile usages shall be regarded as valid, unless they are contrary to justice, equity or good conscience, or have... been declared to be void by any competent authority.

Punjab is somewhat peculiar, in that, in the matters where the personal law normally reigns supreme, local customs for the most part take the place of those laws, and cut across religious denomina­tion. The provision in s. 5 (a) is not at once intelligible. If the formula meant English or any other foreign law it must make nonsense of the basic provision that customary law must be the primary source, for naturally very few of the customs of the Punjab would be likely to agree with foreign laws. It is evidently a piece of incompetent drafts­manship, and what the legislature meant to say was that customs should be binding if they were not repugnant to natural justice, ius naturale; and the same comment must be made about s. 7/ This is eloquent proof that by the 1870’s influential and well-informed men,

¹ Same volume, October. Reference to a despatch of March 5, 1876. See also G.C. No. 12, 303, ibid.

’ Covering letter submitted to Governor Strahan, September 4, 1875, ref. as n. 4, p. 148 at para. 3.

¹ J. M. Sarbah, Fanti Customary Laws (London, 1897), 18, 30; Hayes Redwar, cit., 59.

‘ I.O. MSS. (Rec.) Home Misc. Ser. 124, fo. 171.

such as the Law Member of the Viceroy’s Council, had totally forgotten what our phrase really meant. Mr Chalmers, faced by this anomaly, tried to improve on its evident solecism by turning ‘justice’ into ‘natural justice’. This did not render it a satisfactory provision, and we must read the repugnancy provision as if it were ‘repugnant to natural justice’, and treat the following words, ‘equity and good conscience’ as superfluous.

Very good sense has been shown in the Sudan in dealing with the relevant residual provision there. The Civil Justice Ordinance, 1929, s. 9 provides, for a land singularly short of statutory or case law, that, Tn cases not provided for by this or any other enactment for the time being in force the courts shall act according to justice, equity and good conscience’. Here the borrowing is likely to have been direct from India rather than indirectly from the Gold Coast. There is ample evidence^[XXXVIII] that under our principle the courts of the Sudan apply English law (including English statutory law), Egyptian law, Indian law, or indeed the law of any country the written sources of which are readily available to them, that there is a distinct preference for English law, and that this preference rests upon principles fully recognized. It has been pointed out that the public needs as residual systems of law systems with which the Bar as well as the Bench may be familiar,¹ and that the system with which members of the Bar, law teachers and law students alike are best acquainted, questions of religion apart, is the English law, and that therefore English cases and statutes are most readily to be cited.

The predominance of English law in African territories ruled or once ruled by the British is not therefore surprising. But one may wonder whether, or for how long, it will continue.