[Commerce Class Notes] on Secondary Sources of Indian Law Pdf for Exam

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:

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:

1. He who seeks justice must do equity.

2. 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.