Historical Background:

‘Equity’ refers to those principles that were initially created in the English Court of Chancery. They
were developed in response to the rigid technical procedures of the common law. Equity might be
described as softening or correcting the common law. In the context of forming a contract, the
doctrine of estoppel is an example of equity overcoming the strict common law rules regarding
consideration.
In England during the thirteenth century, the common law was based on rules. Those who had
difficulty in satisfying the strict requirements petitioned the Crown for dispensation. It was in the
fourteenth century that a distinct body of law known as equity was developed. Given the increasing
number of petitions to the Crown, they were referred to the Chancellor. At this time the Chancellor
belonged to the Church.
There was no binding precedent with respect to petitions. Each case was considered on its merits.
Where the application of the common law would be harsh or unjust, the Chancellor might according
to his ‘conscience’ provide relief in equity.
India
The notion of equity is not new to the Indian Judicial system. The history of equity in India is as old as
in England, the root of equity is traceable in ancient Indian society and judicial system. Though there
was never a separate court for administration of equity still, the pertinence of equity has been
witnessing from ancient times. In India, the history of the extraction of equity can be traced back to
the Hindu age. At that time, equity was considered in terms of an obligation. Thus, every decision
had to be reasonable and not solely based on ‘Dharamshastras’. Even in case of conflict in Dharam
Shastras, a rational approach was adopted. According to Kautilya- “If the original holy text of religion
were found to be unreasonable and contrary to judicial reasoning, then the original version of faith
would be futile, and authenticity of religious reasonableness would also be ineffective, and equity
would prevail over it”.
In Mohammedan Law, also equity has ensured a vital place the founder of the Sunni branch, Abu
Hanifi, elaborated the principle that the rule of law should be interpreted liberally according to time
and circumstances. The supreme court of Judicature, which was recognized by Regulating Act 1773,
also constituted a court of equity, and the concept of 'justice and good conscience' was expressly
laid down under section 17. After the abolishment Supreme Court judicature at the Presidency, High
Courts were constituted there. The equity jurisdiction was entrusted through clause 19 of the Letters
Patent.
The notion of equity has also been statutorily recognized by various enactments such as-
(i) Specific Relief Acts,1877
 (ii) Indian Trust Act,1882
(iii) Indian Contract Act,1872
(iv) Transfer of Property Act,1882
(v) Indian Succession Act,1925
Therefore, it can be noticed that India never had a separate court of equity, like that in England.
THE SUBJECT MATTER OF EQUITY:
While describing the subject matter of equity Snell explained it as- “although in many cases equity
intervened to put right on injustice, it must not be thought that every injustice was subject to an
equitable intervention. In truth, there was no certainty when equity would come into play”.
Therefore, he tried to explain that although equity can be used to eliminate injustice put at the same
time, it cannot always be done. There is no certainty in the diligence of the principle of equity. The
jurisdiction of equity therefore is, extensive as it relates to the conscience of an individual.
Scope of equity:
Resort to the principle of equity is only permissible where there is no express statutory provision.
There are certain exceptions to the principle of equity, which is identical to the rule of English Law,
for example, in a conflict between custom and equity, equity would prevail. Rule of Equity, Justice,
and Good Conscience means a rule of common law and equity in England. However, in India, it is not
binding; rather only works as guidance in the absence of law.
Equity is not applicable in India where it is-
(i) Uncertain in nature.
(ii) Where merits of equity are not of the quality which appeals its universal applicability.
Only in the rarest of the rare cases, Indian courts give a new interpretation of already established
principles of equity in England when it is not in contradiction with any Indian statute, and it is
suitable as per the Indian Social Condition.
RECENT JUDGEMENT IN INDIA GOVERNED BY EQUITY –
In Navtej Singh Johar v. Union of India, 2018 – the court, while applying the principle of equity, gave
legal recognition to the LGBTQ community by making amendments in Section-377 of Indian Penal
Code,1860. In its landmark judgment, the Supreme Court held consensual sexual acts between two
adults, legal. This judgment was based on the maxim, "Equity looks to the intent, rather than to the
form." –
In 2017, the apex court of India, while working on the maxim "Equality is equity," applied the
principles of equity, natural justice, and good conscience in Shayara Bano v. Union of India, 2017,
and declared the practice of Triple Talaq as unconstitutional. Though it was recognized in Muslim
law to fulfil the need of the society and to recognize the rights of Muslim women, it was abolished.
As a result of judicial activism in 2019, "The Muslim Women (Protection of Rights on Marriage) Act,
2019 was passed. -Considering the brutal role played by the minor accused in the horrifying Gang
Rape case of Nirbhaya (Mukesh and Anr. Vs. State for NCT Of Delhi And Others, 2017), certain
amendments were made in 2015, in Juvenile Justice (Care and Protection of Children) Act, 2000. In
the aforesaid case, the judges of the Supreme Court, while considering the significant role of minor
in this case, upheld the principle of equity and convicted him for rape and murder and sentenced
him for three years of imprisonment. The judgment was based on the principle "Equity follows the
law" as it tried to fulfil the intention of the legislature keeping in mind the needs of the society also. -
In the recent judgment given by the supreme court regarding the dispute between Ram Janam
Bhumi and Babri Masjid land (M Siddiq (D) Thr Lrs V. Mahant Suresh Das & Ors., 2019) the court
applied the principle of equity. It gave judgment based on the maxim "equity will not suffer wrong to
be without a remedy," which is fundamental to the rule of law. The motive was that no wrong
should be allowed to go unredressed, provided it was capable of being remedied by courts of justice.