A DOCTRINAL BREACH

The established doctrine of res judicata might need to be overlooked, vis-a-vis the issue of the Mullaperiyar dam in Kerala. Man-made structures change considerably over time, and ground realities do, too. Public safety becomes the primary and only concern

- Mathews J Nedumpara

WE inherited from the British a wonderful legal system. The British were not doing us any charity in providing this; they needed a sound legal system for the governance of their own affairs. That system was, and is, based on common law. The common law is to an extent founded on Roman law and also to a large extent on British judge-made laws that bear hundreds of years of wisdom of tradition.

Common law—against civil laws, or those legislated by acts of Parliament— as in Roman law, reflects nothing but the thoughts of great philosophers such as Socrates, Plato, Aristotle, Cicero, Ulpian, et al, and also the early British experiences in dealing with social issues, down from Nordic times. These are mostly unwritten laws, full of common sense and wisdom of ages and hundreds of case references that are referred to, even today.

The occasionally overlapping doctrines of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination) and res judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties) are the cardinal principles on which the Roman laws, or the early British common laws—the basis of our laws—are founded. In recent times, these pearls of wisdom that make up our common laws seem to be ignored by India’s legal luminaries.