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This article is written by Varchaswa Dubey, from JECRC University, Jaipur. This article is an exhaustive work concerning judicial conservatism and specific performance under English contract law and the Indian scenario. 


The rule-oriented implementation of the law of contract puts an obligation on the judiciary to stick to the law and not to make its law. The reason to put such an obligation is to preserve the main idea with which legislation was drafted. The judicial conservatives are thought to favour maintaining the present state of affairs and honouring past practices and traditions. 

The conservatism approach prevents the judiciary from practising interpretation of statutes and alternative approaches to deal with a matter present before it. The reason why the judiciary does this is to maintain the very idea of the founding fathers of the constitution. 

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Judicial conservatism : an overview 

Judicial conservatism refers to the popular belief that the jurisdiction of the judiciary only extends to the enforcement of the law, the law which was enacted by the legislation appointed by the people. The concept is of the view that the judiciary must strictly adhere to the law of the land and must not make its law or interpretation.

Origins of judicial conservatism 

The traces of judicial conservatism can be traced back to the doctrine of precedent and doctrinal legal scholars. The doctrine of precedent refers to the theory that the court will adopt judicial decisions delivered in earlier cases while witnessing similar circumstances and must deliver its judgment in the same way as the earlier case did. 

The doctrinal legal scholars refer to the development of normative materials as positive laws. 

Doctrinal legal scholars provide a more systematic view of a body of decisions and this doctrine exists in the field of contract law. Under the theory of legal scholars, the judges and scholars from the legal traditions while reporting on it. 

Advantages of judicial conservatism 

  • It preserves the main idea of the constitution or legislation framers, who believed that judiciary will protect their ideas and approach which they reflected in their enacted legislation,
  • Conservatism also prevents and clash of different interpretation of laws because the main concept is to ‘stick to the law’,
  • It also prevents future misinterpretation of laws and any misunderstanding which may arise in the future, 
  • Conservatism avoids compromising the rule of law, 
  • Conservatism also prevents any interference with the independence of the legislature,
  • Conservatism will prevent any biased approach of the judiciary and will preserve the central idea of legislation.

Disadvantages of judicial conservatism 

  • It restricts the judiciary from making its interpretation of a statute that may cause the miscarriage of justice,
  • It restricts the judiciary to rationalize decisions as certain matters may require personal opinions of the judges, 
  • It degrades accountability of judiciary as judges only deliver judgments based on the law It causes limitation of interpretation of statutes which is an essential feature of a strong and no personal opinion or discretion, 
  • It also makes the general population mistrust the judiciary as numerous people may not get justice due to poor or absence of interpretation of the law,
  • Conservatism is very unattainable as it is very difficult to assume the exact ideas of constitution framers, 
  • Judicial conservatism may not protect the social and morally empowered beliefs. 

Judicial conservatism and English contractual law: the interplay

Judicial conservatism is inherent because most of the legislation draftsmen were politically motivated which has caused a certain amount of conservatism in the legal mechanism. Another reason for such conservatism is that most of the modern laws are inherited directly from British rule and in earlier days, the crown was given ultimate power instead of the judiciary. 

Most of the judges of common law have been reflecting the values of the society to which they serve. When the laws of contract emerged from the judiciary of England in the 18th century, the judiciary was significantly influenced by the needy and rapid development. 

Under English contract law the principles like offer, acceptance, consideration, express terms, implied terms, termination, expiration, etc are all the basic principles which are same in India since India itself inherited its contract law, i.e. The Indian Contract Act, 1872, from the British. The general rules of interpretation usually involve identifying the intention of both the parties, analyzing the language and context of the clauses, etc. The court usually looks into such matters before accepting the contract as a lawful one. The court does not practice any interpretation other than the one mentioned in the books. 

The reason why court practices such conservatism is because the formal procedure and rules assist the court in determining the fairness of the bargaining process and the circumstances where the dominant party may put its terms. Such rules also prevent the court from enforcing a contract in favour of the dominant party. 

The Indian scenario

The concept of conservatism in India is not as broad as the English law, since India practices ‘activism’ in most of the domains, and very few instances of conservatism can be witnessed in India. Although the judiciary usually follows a conservatism approach, the judiciary, The Supreme Court of India, and High Courts are empowered to declare a law null and void if it infringes the constitutional clauses. 

It is the judicial activism by which vulnerable individuals, people who hail from socially and economically backward classes, victims of a crime, the checks, and balances of the law, the maintenance of the rule of law, etc. are being protected and delivered justice. 

There are instances where the judiciary finds gaps in-laws and therefore may legislate interstices however such interpretation shall not be considered as an act of legislation but merely judicial interpretation. 

Constitutional powers of courts

The Supreme Court of India by the virtue of Article 32, read with Article 13 of the Constitution of India, and various High Courts by Article 226, read with Article 13 of the Constitution of India are empowered to undertake and declare any law unconstitutional if it contradicts with the constitutional provisions. 

Article 142 of the Constitution of India gives power to the supreme court to pass any decree or order in any pending case. 

Discussion about specific performance in English Contract Law

What is specific performance

Specific performance refers to a remedy available for a breach of contract by a party to a contract. It is an order of the court which obligates a party to a contract to fulfil its contractual obligations. Such an order may be awarded instead of damages but damages are available as a right and specific performance is awarded at the discretion of the court. 

Specific performance may not be awarded to the person claiming the damages with the said person or party itself was not justified or unfair in its modus operandi, and such party must only knock the doors of the court if their hands are clean. 

Specific performance in English Law

Under common law, the remedies are given more priority and not what is considered right for a case. In other words, specific performance is not usually awarded by the court. In cases where specific performance is awarded by a court but the person who is put under obligation to perform a specific performance, does not comply with the order of the court will attract harsh sanctions of contempt of court.   

The English common law usually binds its judiciary to pass an order to deliver remedies and an exception is specific performance, in cases where the remedy is not sufficient may not compensate the plaintiff satisfactorily. 

It is significant to know that English law does not consider specific performance as a right but as an alternative option when the court is of the view that remedies which may be made available to the plaintiff will be inadequate.

The major highlighted case

In the case of Hyde v. Wrench (1840), the defendant made the initial offer but the offer was turned down by a counteroffer for which the defendant refused, the plaintiff then desired to accept the initial offer which was rejected by the defendant thus, the plaintiff filed a suit for specific performance. The Court, in this case, held that there exists no contract and when there is a counteroffer, it destroys the original offer, and therefore, the plaintiff cannot seek for specific performance. 

In the case of Falcke v. Gray (1859), when two parties drafted a contract concerning two vases, however, the seller did not comply with the terms of the contract. The plaintiff (buyer) brought legal actions against the sellers. The Court asked the defendants to comply with the contract. The Court further held that specific performance can be enforced if damages are inadequate but when a contract is one where parties are not on equal feet, the purchaser being ignorant to the value of goods, the price appears to be inadequate.  

Defences are available for specific performance

The defences available against specific performance are: 

  • Unfair terms of the contract, 
  • Insufficiency of consideration,
  • Absence of security for the promisee’s performance, 
  • Mistake of the promisor,
  • Uncertainty in administering performance. 

Indian scenario of specific performance

In the Indian entendre, the specific performance is practised usually unlike England and Wales, considering the awarded damages are insufficient. The definition of Specific performance is not codified in Indian legislation and therefore, operates on the judicial interpretations which place an obligation on fulfilment. The significant legislation concerning specific relief is the Specific Relief Act, 1973.

Enforceability of specific performance under Specific Relief Act

According to Section 10 of the Specific Relief Act, the specific performance of a contract can be enforced when: 

  • The actual damages caused by non-execution of the Act,
  • The compensation awarded is inadequate, 
  • The failure to transfer immovable property to such an extent that compensation in money cannot is inadequate, 
  • The breach of contract in the case of movable property can be relieved except when the property was of special value or interest or when the property is held by the defendant as agent or trustee of the plaintiff. 

Who can obtain specific performance

According to Section 15 of the Specific Relief Act, 1963, the specific performance to a contract can be obtained by: 

  • Any concerned party to the case, 
  • The representative in interest or principal of any concerned party, 
  • Any beneficiary entitled when the contract is concerning the settlement of marriage or compromise of rights between members of the same family, 
  • The remainderman, if the tenant enters in the contract for life by the due exercise of power,
  • Revisioner, when an agreement is a covenant entered into with his predecessor in title and the reversioner, is entitled to the benefit of such covenant, 
  • Revisioner, when the agreement is covenant and revisioner, is entitled to benefit and sustain and will sustain material injury if there is a breach of contract
  • When a company has entered into a combination with another company through a contract, the new company which arises out of such combination or way of working together, 
  • If the promoters of a company entered into a contract before its incorporation for purposes of the company and such contract is warranted by the terms of the incorporation, the company provided that the company accepted the contract and communicated such acceptance to the other party of the contract. 


Judicial conservatism may be a significant factor of a judiciary but with changing times, the judiciary must also adopt new techniques to deliver faster justice and without wasting the resources. 

Judicial conservatism has been practised by the English judiciary for years and theories of specific performance suffer as the judiciary in English law is not concerned with judicial interpretation.

The conservative approach practised in England and Wales is very different from that of the Indian judiciary since the Indian judiciary employs interpretation of statutes for the better delivery of justice, while the common law is based on the traditional factors which shall be abandoned. 

Specific performance is an important factor while the court deals with matters of compensation and damages and in most cases, the English law is ignorant to this. 


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