Equity and Specific Relief

LLB-8B

Name: Abdul Rahim

Enrolment: 01-177192-059

Assignment No: 1

Date of Submission: 21st March 2023

Topic

Question: How law of Equity Developed in Pakistan and India in post Pakistan era. Draw a
comparative analysis of this statement.

Equity:

Definition:

According to Black's Law Dictionary, Equity is defined as "In its broadest and most general
signification this term denotes the spirit and the habit of fairness, justness, and right dealing.

Origin and Development of Equity:

Equity is a legal system that was originally administered by the High Court of Chancery in
England. Equity was an extraordinary Jurisdiction that had a separate court. The Law of England
was composed of three different elements; Common Law, equity, and legislature.

Development of Law of Equity in Pakistan and India

Pakistan and India were both Colonies of England before the partition in 1947. After the partition
of India and Pakistan in 1947, both countries inherited the English legal system, including the
law of equity. However, over time as the legal system of the countries developed over time
including the development of the law of equity that was left by the British legal system. Legal
System developed both their distinct legal system with their principles according to their
constitution, history, and Religion.

In Pakistan, the law of equity was initially inherited and applied by the courts as the British legal
system that changed after Pakistan framed its first constitution in 1956. Over time the Courts of
Pakistan started to develop their system and rules based on Islamic law, and the principle of
Justice, equity, and good conscience, and through legal precedents set by the Courts. In 1973,
Pakistan adopted the Constitution of Pakistan 1973, which adopted a system of the Islamic law
that played a great role in the development of the principle of Equity in Pakistan, for example; In
Islamic law, there is a concept of "Waqf", which is adopted in Pakistani law as "Trust" which is a
principle of equity. There are principles of Equity incorporated in several laws. For Example,
The specific Relief Act of 1877, provides the enforcement of specific performance of contracts
which is based on the principle of Equity.

It can be said that Pakistan took the basis of the principle of equity from the common law
countries in which the United Kingdom played a major role as Pakistan was its colony before
1947, but Pakistan has been an independent country ever since and has its constitution which has
laid the basis. It can be said that even today English Jurisprudence and English legal precedents
are still used in the superior courts which have played an integral part in the development of the
legal system of Pakistan even after the Partition. Apart from that many pieces of legislation were
also passed that were based on the law of Equity, for Example; Muslim Family Law Ordinance
1961, The Land Acquisition Act 1984. In addition to that the Constitution of Pakistan also
incorporates the Principle of Equity and fairness in its provision. The Constitution has provisions
related to Equality before the Law, Rule of law, and Fundamental Rights, that all based upon the
principles of Equity.

The Law of Equity has a very rich history in India is has developed way more as compared to
Pakistan way before Pakistan even framed its first Constitution, as India framed its Constitution
before Pakistan was able to. The Constitution of India incorporates the principle of equity and
Justice in many of its provisions such as; Fundamental rights, Directive Principles of State
Policy. These provisions make sure that the state upholds the principle of equity and justice and
that the citizens of India can seek relief from the Courts in case their Rights have been violated.
Furthermore, the Specific Relief Act, of 1963, is also based upon the law of equity that deals
with the specific performance of the contracts and granting injunctions in India which is purely a
principle of equity.

Just as in Pakistan, the development of the law of equity in India has been influenced by the
British legal system, which was set in place by the British legislation when both Pakistan and
India were a colony of the British. Many of the laws, both in India and Pakistan go way back to
the British time when it was a colony, such as the Trust Act, and Transfer of Property Act that
were made pre-partition and are still enforceable by the courts today in India, but this does not
mean that these laws are as they were pre-partition. All these laws were and are constantly being
amended with time by continuous legislation. The British gave a legal system to both Pakistan
and India. After the Partition, they continued to run the system that was already made, and with
time they amended and changed to their need.

Conclusion:

The law of equity has had a significant impact on the development of the legal system of both
India and Pakistan Post-independence. Several laws have been enacted based on the principle of
equity and fairness. And those laws that were made pre-independence were amended with time
and according to their respective needs. Comparatively, it can be seen that India developed its
system way before Pakistan because India was able to frame its Constitution before Pakistan. So,
with the basis of the English legal system both India and Pakistan developed its law, there were
some other factors like Sharia played an integral part in Pakistan because it is also based upon
the principle of equity.