The Indian Judiciary And The Doctrine Of Unconscionability
- IJLLR Journal
- Dec 14, 2025
- 2 min read
Adrija Roy, LL.M. (Business Law), Amity Law School, Amity University Kolkata
ABSTRACT
The doctrine of unconscionability has become an important safeguard in contract law, especially in contexts where parties do not negotiate on equal footing. In India, this doctrine has developed almost entirely through judicial interpretation, since the Indian Contract Act, 1872 does not explicitly address unconscionable agreements. As a result, courts have played a central role in shaping how unfairness in contracts is identified and addressed. This paper explores that evolution, beginning with the doctrine’s historical foundations in English common law, where courts intervened to strike down bargains that were excessively harsh or approaches, many of which now rely on clear statutory provisions.
In contrast, India’s approach is largely judge – made. Through landmark decisions – most notably Central Inland Water Transport Crop. V. Brojo Nath Ganguly – judiciary expanded traditional contract principles to protect parties facing economies distress, lack of bargaining power, or an absence of meaningful consent. This paper examines how the contract was formed, and substantive elements, such as the fairness to the terms themselves. The study also highlights the growing influence of constitutional values, especially the principles of fairness, equality, and dignity under Articles 14 and 21, in shaping modern interpretations of contractual fairness.
A comparative review of jurisdiction such as the United States, United Kingdom, European Union and civil law systems reveals that India lacks the legislative clarity these regions provide. While Judicial creativity has filled some gaps, the absence of a statutory frameworks continues to produce inconsistent outcomes.
This paper argues that India would benefit from codifying the doctrine, adopting a structured dual – test approach, and strengthens protections in consumer and digital contracts. Clearer legal standard would ensure consistency contractual practices.
