ABSTRACT
Research Paper Indian private and public law already breathes equity: injunctions, specific performance, restitution, promissory estoppel, unconscionability, legitimate expectation, and ‘complete justice’ under Article 142 all draw from equitable traditions. Yet the Indian legal system has no single ‘Equity Code’. Instead, equitable norms are scattered across statutes – eg, the Specific Relief Act 1963 (as amended in 2018), the Indian Trusts Act 1882, the Transfer of Property Act 1882, the Contract Act 1872, procedural and constitutional provisions – and are richly developed in case law.
This paper asks whether India should codify equity – fully or partially – and if so, how. After tracing the historical development of equity in India and surveying contemporary doctrine and practice, the paper undertakes a comparative analysis (UK, US, Australia, Canada, and civil-law jurisdictions) to extract models and warnings. It then poses criteria for evaluating codification: certainty and accessibility, institutional capacity, flexibility and adaptability, federal balance, and impacts on commercial growth.
The paper ultimately recommends principles-based partial codification – a ‘Restatement-cum-Framework Statute’ that (i) consolidates foundational equitable maxims and general tests for core remedies, (ii) standardizes remedial discretion and defenses, and (iii) leaves room for purposive judicial development. It proposes a staged law reform process using a Law Commission Draft Equity (Principles and Remedies) Bill, accompanied by model rules for courts, dynamic commentary, and periodic review. The conclusion is that wholesale codification risks freezing a living tradition, but carefully designed partial codification can improve coherence, predictability, and access to justice while preserving equity’s essential flexibility.
Ashok Kumar Rai, The Future of Equitable Remedies: Should Equity Be Codified in India?, The Infinite volume 2 issue 8 (August 2025).
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