In its primary sense equity is fairness, or that rule of
conduct which in the opinion of a person or class ought to be followed by all
other persons. According to Osborne it is primarily fairness or natural
justice. In the classic words of Sir Henry Maine it is a "fresh body of
rules by the side of the original law, founded on distinct principles and
claiming to supersede the law in virtue of a superior sanctity inherent in
those principles."
"In progressing societies social necessities and social
opinions are always more or less in advance of law. The gulf that is thus
created between the social opinion and the existing law is bridged by three
instrumentalities, namely, (i) Legal Fictions, () Equity and (ii) Legislation.
When law becomes fixed, legal fictions liberalize it, when legal fictions also
become outdated, equity softens the rigor of law, till finally a point is
reached when expansion of equity ceases."
Derived from the Roman term "equites" (acquis-equal)
means equalization or levelling down any arbitrary preferences or denial of
justice. It is a means to reach as near as possible to natural or ideal
justice, but one cannot forget that equity is not natural justice. It differs
from it. Thus equity means to do unto all men as we would they
should do unto us. "Equity is no part of the law, but a moral virtue,
which qualifies, moderates and reforms the rigor, hardness and edge of the law,
and is a universal truth; it does also assist the law where it is defective and
weak in the constitution (which is the life of law) and defends the law from
crafty evasions, delusions and new subtleties, invented and contrived to evade
and delude the Common Law, whereby such, as have undoubted right, are made
remediless; and this is the office of equity, to support and protect the Common
Law from shifts and crafty contrivances against the justice of the law. Equity
therefore does not destroy the law nor create it, but assists it. This new body
of rules (or 'equity') is distinguishable from the general body of law, not
because it seeks to achieve a different end (for both aim at justice), nor
because it relates necessarily to a different subject-matter, but merely
because it appears at a later stage of legal development."
In D.D.A. v. Skipper Construction Co. (P) Ltd.12: the
Supreme Court observed that the jurisdiction and power of Supreme Court to make
orders to do complete justice is exercised to meet the situations which cannot
be effectively dealt with under the existing law. This was a case of fraud
committed by public servants. Referring to the case of A.G. of India v. A marital
Pranjivandas, the Court observed:
"After all, all these illegally acquired properties are earned and
acquired in ways illegal and corrupt at the cost of the people and the State.
The State is deprived of its legitimate revenue to that extent. These
properties must justly go back where they belong, i.e., to the State. What we
are saying is nothing new or heretical." Approving the observations in
Reid case, the Supreme Court said that absence of provision in law for relief
cannot deter the Supreme Court from doing justice between the parties. Doing
justice between the parties is a compulsion of judicial conscience on the part
of the Supreme Court as a Court of Equity. The fiduciary relationship may not
exist as in the present case nor it is a case of a holder of public office, yet
if it is found that someone has acquired properties by defrauding the people
and if it found that the persons defrauded should be restored to the position
in which they would have been but for the said fraud, the court can make all
necessary orders. This is what equity means and in India the courts are not
only courts of law but also Courts of Equity.
In the area of service law too, for doing complete justice
to the parties, the court acts as a Court of Equity. In Chenga Reddy case the
Court observed that a Court of Equity must so act within the permissible limits
so as to prevent injustice. "Equity is not past the age of child-bearing"
and an effort to do justice between the parties is a compulsion of judicial
conscience. Courts can and should strive to evolve an appropriate remedy in the
facts and circumstances of a given case, so as to further the cause of justice,
within the available range and forge new tools for the said purpose, if
necessary to chisel hard edges of the law.
However, the power to make orders to do complete justice
should be left undefined so that it may be flexible enough to be exercised
depending upon needs of the particular case. The power has to be used with
circumspection.