The chief sources of Indian law can be broadly classified into two parts. One is the primary sources, and the other is secondary sources. Among the primary sources, we have the following:
Customs
Judicial precedents
Statutes
Personal Law
Secondary sources of Indian law include:
English law
Statute Law
Common law
Equity
Law Merchant
Justice, equity, and conscience
If statutory or personal law is absent in a particular case, Indian courts go ahead with decisions made through ‘Justice, Equity, and Good Conscience’.
English Law
Primary sources of English law include common law, statute law, equity, and law merchant. The English law is referred to by Indian courts when it fails to find a provision from primary sources of Indian law on a particular case. Acts like the Indian Contract Act of 1872, Indian Partnership Act of 1932, Negotiable Instruments Act of 1872, and the Sale of Goods Acts of 1930 have simplified judiciary concerns related to business transactions. Hence, the application of English law is selective in our country.
Common-Law
Common law implies to all undocumented legal doctrines which are followed in a country’s judicial arena. These laws have originated out of traditions, and customs followed over centuries, and are not embodied in statutes. It refers to previous judgements made on several cases over years to deliver better justice.
Common law England has originated collectively from preceding case judgements issued in English courts over the years. It is also called ‘case law’. The same has been incorporated in the English and Wales law. However, in an unwritten form.
Principle of Equity
Equity means ‘natural justice’. The principle of equity came into existence to eliminate shortcomings of Common Law. Equity principle in English law refers to a set of rules which were formed from the administration of justice based on every dictate issued in the Courts of Chancery.
For English law cases, in which the common law of England could not prevail, a Chancellor had to take up the responsibility of judgement. Special courts called ‘equity courts’ were set up, and they had a separate existence from that of the Common law courts. These courts followed customs such as:
He who seeks justice must do equity.
He who comes to equity must come with clean hands.
Just like common law, the principle of equity is also an unwritten and undocumented form of doctrine to solve various limitations of the common law.
Statute Law
Statute law is the written law of a country. It is enacted by the Parliament of that country. The laws are embodied in the Constitution. Statutory law is also an important source of Mercantile Law. These written doctrines can override the unwritten English law of common law and equity.
Law Merchant or Lex Mercatoria
Law Merchant is the primary source from where the Mercantile Law originated. It contains rules which apply to business, trade, and all the people dealing with it. Law Merchant came into existence due to the unsuitability of early English laws in terms of business transactions.
The prevailing common law failed to settle the disputes between merchants. Thus, merchants themselves set up some rules and guidelines of transactions based on customs. These rules and regulations later came to be known as Law Merchant or Lex Mercatoria. Presently, Law Merchant is a crucial part of the Common Law in England. Certain parts of the Law Merchant have also been codified to form English Law articles. This includes the Sale of Goods Act, 1893, Bills of Exchange Act, 1882, and so on.
Justice, Equity, and Good Conscience
These English law terms were first introduced through the Impey's Regulation of 1781 in India. If in any case or dispute, personal or statutory law does not satisfy the issue, the court can follow the ‘Justice, Equity, and Good Conscience’ procedure. In such cases, the court has to refer to English law.
Early Hindu rules and legal proceedings, which were prevalent in India, had its own version of ‘Justice, Equity and Good Conscience’. Its modern version owes its origin to the British rule. The High courts which were established under British rule suggested that when common or statutory law is silent regarding a matter, it can be solved on basis of ‘Justice, Equity and Good Conscience’.
These three English law terms are usually interpreted as English rules and laws which are applied when written legalities do not suffice. Indian courts also resort to ‘Justice, Equity and Good Conscience’ in absence of Hindu law when it comes to cases related to personal law.
FAQs on Secondary Sources of Indian Law Explained
1. What are the secondary sources of law in the Indian legal system?
Secondary sources of law are not the ultimate origin of the law, but rather the tools used to understand, interpret, and develop the primary sources. They are consulted by judges when a primary source (like a statute) is silent, ambiguous, or needs clarification. They have persuasive value rather than binding authority.
2. How are secondary sources of law different from primary sources?
The main difference lies in their authority. Primary sources are the foundational, binding sources of law, such as the Constitution of India, Acts of Parliament (statutes), and binding judicial precedents. Secondary sources, on the other hand, are not binding but are used to persuade and guide legal interpretation. They explain and analyse the primary sources.
3. What are some key examples of secondary sources used in Indian law?
The most significant secondary sources that have influenced and continue to shape Indian law include:
- English Common Law: The body of law developed through judicial decisions in England.
- Principles of Equity: A set of legal principles based on fairness and justice that originated in the English courts.
- Judicial Decisions of Foreign Courts: Judgements from countries with similar legal systems (like the UK, USA, Australia) can be cited for their persuasive value.
- Justice, Equity, and Good Conscience: A principle that allows judges to apply their sense of fairness in cases where no specific law exists.
4. Why is English Law considered such an important secondary source for Indian law?
English Law is a crucial secondary source due to India's colonial history. The modern Indian legal framework, including its judicial system and many of its statutes, was established during British rule and was built upon the foundation of English common law and principles of equity. As a result, these principles are deeply embedded in Indian jurisprudence and are often referred to when interpreting Indian laws.
5. What does the principle of ‘Justice, Equity, and Good Conscience’ actually mean in a courtroom?
The principle of ‘Justice, Equity, and Good Conscience’ acts as a safety net for the legal system. It empowers a judge to deliver a fair judgement based on general principles of morality and justice when there is no specific statute or precedent to cover the situation. It essentially allows the court to prevent injustice from occurring simply because a particular legal loophole exists.
6. Do judges have to follow the secondary sources they refer to?
No, judges are not obligated to follow secondary sources. These sources have persuasive authority, not binding authority. This means a judge can be influenced or guided by a foreign judgement or a legal scholar's opinion, but they are not required to base their final decision on it. The final judgement must align with the primary sources of Indian law.
7. How do courts decide which secondary source is the most appropriate for a case?
The choice of a secondary source depends on the specifics of the case. A judge will consider the source that is most relevant to the legal issue at hand. For instance, in a complex commercial dispute, they might refer to established English commercial law. In a unique case with no legal precedent, they might rely on the principles of Justice, Equity, and Good Conscience to ensure a fair outcome.
