janhit college of law legal history 113 legal history by mr. zeshaan sir.pdfjanhit college of law 3...

JANHIT COLLEGE OF LAW

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Legal history A very short answer type questions. Q.1. How and when "The East India Company" was formed? Ans. Formation of the East India Company—The earliest British establishment for India was created by a Charter of 'Queen Elisabeth' issued on 31.12.1600. By this Charter the East India Company was incorporated in England. Its full name was "The Governor and Company of Merchants of London Trading into the East Indies." In the beginning it was created for fifteen years but the Company could be wound up even earlier. However, on 31.5. 1609 by a new Charter James I gave a perpetual life to the Company subject to the Crown's power to revoke it on 3 years' notice on proof of injury to the nation. The total members of the Company constituted a General Court. The General Court elected a Governor and twenty four directors for managing the Company's business. Governor and directors together were called as 'Court of Directors". The Court of Directors was elected annually, but its members were eligible for re-election. However, they could be removed from their office by the General Court even before the expiry of their term. Q. 2. What were the powers and functions of East India Company originally? Ans. Powers and Functions of East India Company—The Company was originally created to carry on and enjoy an exclusive trading right in the Countries lying beyond the Cape of Good Hope eastward viz., Asia, Africa etc. No British citizen could carry trade activities in this area without a licence from the Company. At the same time some more powers were given to the


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Company which were in the nature of Legislative powers. The Company in its General Court could pass laws, orders and ordinances for its good government, for its servants and for the furtherance and continuance of its trade and traffic. It could also punish the persons disobeying its laws. However, no punishment could be given which was unreasonable or contrary to the laws, statutes or customs of England. Q.3 What were the main features of the Charter of 1726? Ans. Main Features of Charter of 1726—The main features of the Charter of 1726 are as under— 1. The Charter for the first time established the Crown's Court in India. 2. The Charter brought about a uniform system in all the three Presidencies of Bombay, Madras and Calcutta and the different types of systems exiting till then were abolished. 3. The judicial system established. Q.4 What do you mean by the Court of request? Ans. Court of Request—Under the Charter of 1753 a Court of Request was created to hear small civil cases upto the value of 5 pagodas. The Court used to Sit once in a week. The judges of the Court were called Commissioners who were appointed by the Governor and Council from amongst the servants of the Company. The number of the Commissioners was between 8 to 24. Three of these Commissioners used to sit in the Court at a lime by rotation. The Court used to give very quick judgments in the cases coming, before it. It also had the jurisdiction to decide the, matters of native people. Q.5 What do you mean by Choultry Court?


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Ans. Coultry Court—The Choultry Court existed in Madras to decide the cases upto the value of 20 pagodas. This Court continued to decide cases upto 1774, when some temporary arrangements were made by the Company's Directors and the Choultry Court was temporarily abolished, but it began to work again in 1775 and continued till 1800 when it was finally abolished. After it a Court under a servant of the Company was created to decide the disputes between the natives upto the value of 5 pagodas.

Q.6 What do you mean by Mofussil Faujdari Adalat? Ans. Mofussil Faujdari Adalat-—It was a court of criminal jurisdiction established in each district. The court was presided over by Kazi, helped by Mutti and Maulvies. The collector had a general supervision over the court. I he court had the full power to decide and punish all criminal cases. However, in causes of forfeiture of property or of death sentence the proceedings of court had to be submitted to the Sadar Nizamat Adalat for final orders. Q.7 What do you mean by Mofussil Diwani Adalat? Mofussil Diwani Adalat—It was a court of civil jurisdiction established in each district. The Collector was the judge of this court. In the suits regarding inheritance, marriage, caste and other religious usages and institutions, 'the laws of the Koran with regard to Mohammedans, and those of the Shaster with respect to the Hindus," were to be applied. The Collector, in matters of Hindus and Muslims was helped by Pundits and the Kazis respectively who expounded the law. Q. 8. Why British Parliament passed the Regulating Act, 1773?


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Ans. Object of Passing the Regulating Act, 1773—British Parliament enacted the Regulating Act, 1773 in order to achieve the following purposes— (a) to impose greater control and supervision of Parliament over the affairs of the East India Company, (b) to democratise the structure of the East India Company itself, (c) to streamline the administration of India by East India Company, (d) to establish a Supreme Court at Calcutta, (e) to give greater Q.9 What is Cornwallis Code? Ans. Cornwallis Code—On May 1,1791, a code which came to be known as Cornwallis Code, containing 48 enactments, was framed. This laid down the general principles for administration of criminal justice. It was this year, i.e., in 1793, that the Regulations framed by the Government were codified according to the prescribed form. Q.10 What reforms were introduced by Sir John Shore? Ans. Reforms Introduced by Sir John Shore—Sir John Shore succeeded Cornwall's as Governor-General, although he appreciated the reforms introduced by Cornwallis yet soon he found some defects in them so he made the following changes in the existing judicial system—1. Changes of 1794—The first change was made as under through Regulation VIII of 1796— Power of Registrar Increased—A final power of decision was given to the Registrar in suits not exceeding Rs. 25 in value. Beyond that limit an appeal lay to the Provincial Courts of Appeal. This provision was made to relieve the Judges of Diwani Adalats from the obligation of revising the decrees of the


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Registrars and countersigning them before they were considered to be valid. Limited Judicial Powers to Collectors—A further relief was given to the Judges by conferring the Collectors with some of the powers they had lost earlier. The judges of Diwani Adalats could refer to the Collectors, for their report on any accounts, of rents or revenue, necessary for deciding the cases before the Adalat. 2. Changes of 1795—In order to further improve the situation some more changes ware introduced by regulations of 1795 which are as under—(i) The Zamindars were given certain powers over the tenants and cultivators to enforce payments. This lessened the burden of Adalats to some extent, (ii) At the same time appeal against the decision of Registrar were to be preferred to the District Diwani Adalats and not the Provincial Courts of Appeal and the decision of District Diwani Adalat was made final, (iii) Under the earlierRegulations there would be two appeals against the decision of Munshifs; first and second appeal to the District Diwani Adalat. Regulations of 1795 introduced only one appeal to the District Diwani Adalat and the second appeal was abolished, (iv) To discourage frivolous and vexatious litigation Court-fee was re-introduced. 3. Changes of 1797—(a) Court-Fee Increased—The Court- fee was considerably increased and it was further required that all the proceedings should be written on stamped paper specially provided for. To expedite the cause of justice, jurisdiction of the Provincial Court of Appeal was extended to their taking to the real property of the value of Rs. 5,000. Beyond that amount their decision was appealable to Sadar Diwani Adalat. (b) Limited Judicial Powers to Assistance of Magistrate—With a view to expedite the trial of criminals, the assistants to the Magistrates were granted limited judicial powers. Q. 11. What reforms were introduced by Wellesly?


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Ans. Reforms Introduced by Wellesly—Wellesly succeeded Sir John Shore as the Governor -General. The reforms introduced by him are as under— I. Reforms in the Constitution of Sadar Adalats—Wellesly thought that the Governor Gerieral-in-Council constituting the Sadar Adalts had several disadvantages. Therefore, a Court of three members was constituted. The Chief Judge of the Court was to be a junior member of the Council having some experience of judicial work. The other two were to be covenanted civil servants of the Company who had some experience of judicial work in the Provincial Court. It was, therefore, provided in 1801, that the Sadar Diwani Adalat, the Provincial Court or the Zila or the City Court were to exercise an appellate jurisdiction over the Court below them, on the basis of the value of the subject-matter to be determined; 2. Reforms to Reduce Delay and to Promote Quick Disposals—Notwithstanding, several attempts, discussed above, made to eliminate delay and congestion of cases in the Courts, the position had not improved. Huge number of cases were pending in most of the Courts, exercising civil jurisdiction, (a) Head Native Commissioners also ioiown as Sadar Ameens were appointed in Zilias and Cities to enable early decisions, (b) In addition to the above-mentioned post, Assistant Judges in Zilias and Cities were appointed, (c) The pecuniary jurisdiction of the Courts of Registrars was raised to Rs. 500. (d) The decisions of the Zilla and City Courts in all appeals from the Native Commissioners were made final. There could be no further appeals. Q.12 What reforms were introduced by Lord Minto? Ans. Reforms Introduced by Lord Minto—In 1807, Lord Minto became the Governor-General. He was a quiet, humane and experienced man. He introduced following reforms in the judicial system of the country—!. Reforms in Civil Judicature—(i) Change in the Constitution of the Sadar Diwani Adalat.—In 1801 the Sadar Diwani Adalat was handed over to


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three Judges, thus ending the judicial activity of the Governor-General in Council. In 1807 by Regulation XV the number was increased to four. In 1811 provision was made under Regulation XII to augment the number of puisne Judges as need arose. Thus, in future the Sadar Diwani Adaiat was to consist of a Chief Judge and of as many puisne Judges as were deemed necessary from time to time. Again the Regulation XV of 1807 laid down that the Chief Judge of the Sadar Diwani Adalat was to be a member of the Council of the Governor-General. Thus, Minto reverted to the system of Lord Wellesley. (ii) Provincial Courts of Appeal to Exercise Original Civil Jurisdiction in Certain Cases—Hitherto, in all cases appeal from the decisions of Diwani Adalats lay to the Provincial courts of Appeal and a further appeal was provided to Sadar Diwani Adalat in of five thousand rupees or above. This delayed the disposal of such cases. In order to secure speedy decisions and to dispose off the arrears, Regulation XIII of 1808 laid down that the Provincial Courts of Appeal were to exercise original civil jurisdiction in all cases above five thousand rupees. Thus, the Courts of Diwani Adalat were exempted from taking cognizance of all cases over five thousand rupees and such cases were to be directly instituted in the Provincial Courts of Appeal. 2. Reforms in Criminal Judicature-) The defects of the prevailing System—Cornwallis's Scheme of CrirninaJ Judicature, though ensured a more regular and satisfactory trial, suffered from many defects. The exclusion of Indians from the administration of criminal justice was one of the major defects. The second great defect of the Cornwallis's scheme was conferring the magisterial powers on the Civil Judges of the Districts. This arrangement did not prove to be useful. The


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combination of two offices in one person gave rise to many evils. To remove the defects in the prevailing system Lord Hastings introduced many reforms in the administration of criminal justice, while Lord Minto did a little in that direction. (ii) Powers of the Magistrates Enlarged—To meet the situation, Lord Minto, by Regulation IX of 1807 enlarged the powers of the Magistrates. The Regulation authorised the Magistrates who could not try the accused persons previously, to do the same. They were empowered to award sentences up to six months' imprisonment with thirty rattans or a fine of two hundred rupees. In case the fine was not paid, an extra sentence of imprisonment for six months could be given by the Magistrates. 3. Collector's Powers to Try Rent Cases— In 1812, Regulation V provided certain rules under which the land owners could seize the property of their tenants in order to recover the unpaid rents. However, a summary remedy was given to the aggrieved ryot against his landlord in cases in which he was put to trouble. The cognizance of such cases was vested in the Collector to whom they were referred. Q. 13. What reforms introduced by Lord Hastings? Ans. Reforms Introduced by Lord Hastings—Lord Hastings succeeded Lord Minto in 1813 as the Governor General. He made the following reforms— 1, Reforms in Civil Courts—Reforms made in Civil Courts are as under-—(i) To minimise delay in disposal of civil cases the pecuniary jurisdiction of Munshifs was increased. An appeal would lie to the Zila and City Courts from the decision of the Munshifs. This appellate decision was final, (ii) Similarly, the pecuniary jurisdiction of the Sadar Ameens was increased. In this case, also, an appeal 10 the Zila and City Court was final,


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(iii) Thirdly, the jurisdiction of the Courts of Registrar was also raised. As a result the Registrars could decide original suits upto a value of Rs. 500, if referred to them by Zila and City Judges, (iv) The office of Assistant Judge was abolished. The Zila and City Court were formally empowered to decide Civil suits of value not exceeding Rs. 5,000. (v) The strength of Provincial Court was increased. Thus, Lord Hastings, in His reform of 1814, increased the jurisdiction of the Lower Courts and the number of judges in the Higher Courts and thereby minimised the causes of delay in the Civil Courts and thus helped speedy disposal. 2. Reforms in Criminal Courts—He made following reforms in Criminal Courts—(i) The Magistrates were empowered to refer to Native Law Officers and Sadar Ameens cases of minor offences for trial. In such cases, very minor punishment could be awarded, (ii) As desired by the Court of Directors of the Company, the Collectors were given Magisterial powers though there were some objections against such arrangement, (iii) To remedy congestion in the Courts; the jurisdiction of Assistant Magistrates was enlarged. Similarly, the jurisdiction of the Magistrates and Joint Magistrates was enlarged. Q. 14. What were the effects of the passing of the Regulating Act on judicial system in Bengal? Ans. Effects of the Regulating Act on Judicial System in Bengal—These are as under—1. A Governor-General and a Council of four members was set up at Calcutta. All civil and military affairs of the Calcutta Presidency were vested in this authority. Warren Hastings was appointed the Governor- General. 2. The Presidencies of Madras and Bombay were put under the lupcriutendenoc of the Calcutta Presidency or the Governor General and the


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Council in matters of war and peace, 3. The decisions of the Council were to be abided by the Governor-General who had only one vote and one casting vote in case of a tie. Thus, the Council had a superior authority over the Governor-General. 4. The Governor-Genera! and the Council was vested with the power of ordering management, and government of all territories, acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa, 5. Creation of Supreme Court—S, 13 of the Regulating Act provided for the creation of the Supreme Court of judicature at Calcutta. Q. 15. What do you mean by First Round Table Conference? Ans. First Round Table Conference—When the Simon commission Report was condemned by the Indian people, the British Government called a First round Table Conference in London. The Conference met in London in Nov. 1930. The Government appointed safe men belonging to the other parties, communities and interest to present India, because the Congress Leaders were in jails. Representatives from the Indian States were also invited to participate in the deliberations which included the personalities like Sir Mirza Ismail and the Maharaja of Bikaner. There were lengthily discussions on the question of the future form of the Government of India. Ultimately three basic principles were settled and accepted by the British Government. The form of the new Government of India was to be an All India Federation in which the British Indian Provinces and the Indian states were to join. Subject to such reservations and sale-guards as might be considered necessary for the transitional period, the Federal Legislature Provinces were to be given authonomy in their own affairs. Q.16 What are the provisions of the Government of India Act, 1915? Ans. Provisions of Government of India Act, 1915—It contained the following provisions—(a) The Act deprived the High Courts of its original jurisdiction in any matter concerning revenue. The effect of this provision


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was that in its appellate side it could exercise its jurisdiction over matter concerning revenue but in its original side it could not. (b) Another important change was that the Act exempted the Governor General, the Governors, the Lieutenant Governor General, Chief Commissioners and the members of the Executive Council of the above and also the Minister from the original jurisdiction of the High Court for anything counr-elled, ordered or done by-any of them in their official capacity, (c) The Act also provided that a written order of the Governor- General in Council could protect any person for the act he has done according to the order in any civil or criminal proceedings in any High Court on its original side. However, this exemption was not extended to any European British subjects, (d) Under this Act, the High Courts were to apply in the exercise of their civil jurisdiction the personal laws or customs if both the parties were subject to the same personal laws or customs, otherwise, the law of the defendant. Q.17 What was the basis of the jurisdiction of the Privy Council to hear appeals from the Courts in India? Ans. Privy Council and Its Brief History—The British administration of justice is based on the fundamental principle that the King is the fountain of justice. He is a fountain of justice in the sense that justice is conducted through him. He is not the spring from which the justice originates but he is the fountain through whom and through several channels of the Courts justice is conducted. Generally, justice is conducted through the Courts but yet there is a residuary prerogative power with the King. The authority of the Privy Council is based on this prerogative of the King, From the time of the Normans, the King-in-council has entertained jurisdiction to set aside injustice and to establish justice. The King-?in-Council was supposed to advise the Crown in this matter it did in other affairs of the State. In course


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of time, the House of Lords emerged as the final Court of appeal from the Courts in England But yet the Jurisdiction of the King-in-Council continued over the possessions of the King outside Great Britain. To begin with this was a discretionary jurisdiction which the King in Council could exercise whenever it thought it fit. The petition to the King in Council was entertained only as matter of grace but with the development of the oversea colonies and the empire of India, the appeals to the king-in- Council became a privilege of the subject. Q. 18 What do you mean by "The Simla Conference"? Ans. The Simla Conference—To create a proper atmosphere for the discussion of the Wavell plan, all the political leaders in prison were released. The Conference was to be held at Simla on June 29, 1945, to which political leaders representing various shades of opinion were invited to attend. On 1st August, 1945, Lord Wavell convened the Conference of the Provincial Governors to take stock of the political situation in the country. Soon after, general elections to the Central and the Provincial Legislatures were announced. In the meanwhile, in the United Kingdom, the Labour party had become victorious in the general elections. Consequently, there was further vassurance from Lord Wavell that the British Government was determined to do its utmost to promote the early realisation of self-Govemment in India. After much discussion; the Congress Party decided to contest the elections. The Congress secured almost all general and a few Muslim seats. Mr. Attlee, the Labour Prime Minister, issued a statement, after the study of election results in India. In that statement he clearly admitted India's right to self-determination. Consequently, a Mission of the Cabinet comprising of high-ranking Cabinet Miniters was sent to India. Q. 19. Write short note on "The Mountbatten Plan."?


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Ans. The Mountbatten Plan—The Mountbatten Plan was published on June 3, 1947. After emphasising the matter of agreement amongst the Indian Parties and the intention of the British Government of not attempting to frame any ultimate Constitution of India, the plan laid down the following procedure—1. The Provincial Legislative Assemblies of Bengal and Punjab were to meet in two parts, one representing the Muslim majority districts, and the other, the rest of the provinces; 2. The members of the two parts were empowered to vote on the question whether or not the provinces were to be partitioned. If a simple majority of either part decided in favour of partition, partition would take place; 3. The Legislative Assembly of Sind was to take its own decision at a special meeting; 4. In the case of the North Western Frontier province a referendum was to be held; 5. The Muslim majority district of Sylhet vns to decide by a referendum whether it would join East Bengal or remain in Assam. That the policy provided for the creation of a Boundary Commission to settle the details of the boundary in case partition was decided upon. The plan was accepted by the Muslim League on June 9,1947, and by the AH India Congress Committee on June 15,1947. It was decided that Bengal and Punjab were to be partitioned. West Bengal and East Bengal were to join as a new Constituent Assembly: Sind and North Western Frontier Province as well as Sylhet decided to join Pakistan. Q.20 Write short note on "Gandhi-Irwin Pact (Delhi Pact)"? Ans. Gandhi-Irwin Pact (Delhi Pact}—On February 14,1931, Mahatma, Gandhi wrote to Lord Irwin seeking an interview in order to discuss the political situation. The Viceroy readily agreed and negotiation began forthwith on 17th February 1931. They met six times at Viceregal House until at last on the morning of 5th March 1931, th.. agreement was reached. According to theagreement—(a) The Government agreed to—(i) release


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political prisoners but not those convicted of violent acts or the soldiers who retused to fire in Peshawar—(ii) withdraw its special ordinances; (iil) remit certain fines imposed on recalcitrant villages: (iv) allow certain villages to manufacture salt for their own use. (b) Picketing was to be allowed but only within the limits permitted by the ordinary law, and discrimination against British goods was to cease, (c) In return for these concessions, the Congress agreed to stop civil disobedience and participate in the next Round Table Conference.

Legal History • Discuss the merits and demerits of judicial system established under the

Charter of 1726. Or Describe in short the provisions of Charter of 1 726. What were the main aims of issuing this charter? How far it could succeed in achieving its aims? Or Charter of 1 726 makes a turning point in the legal history of India? Discuss the importance of Charter of 1726 in the light of the above observation. Or The year of 1726 marked the beginning of a new era in the evolution of judicial institution in India. Discuss.

• Write a note on the Composition, Jurisdicition and working of Mayor’s courts under the Charter of 1726. Whether these are an improvement to the Mayor’s Court of 1687. Or Write a note on the Composition, Jurisdiction and working of the Mayor’s Courts under the Charter of 1687 and 1726. Or


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“The charter of 1726 was inferior to that of the Charter of 1687. Do you agree with this statement? Or Compare and contrast between the Mayhor’s court of 1726 with the Mayor’s court at Madras established in 1687.

• How and when “The East India Company” was formed? What were its powers and functions originally?

• Discuss the composition jurisdiction and working of the supreme Court established in 1774 under the Regulating Act. 1773. How far the objectives behind its establishment were achieved?

• Explain the main Provisions of the East India Company Act. Or Pitt’s India Act. 1784.

• Write a note on the Warren Hastings Judicial Plan of 1772 and 1774 and indicate its influence on the system of administration of justice of India.

• Write a critical note on the Judicial Reforms of Lord Cornwallis. Or

Discuss the reforms introduced by Lord Cornwallis through his judicial plans of 1790 and 1793. Or Discuss the reforms introduced by Lord Cornwallis for the enforcement of Criminal Law in India. Or Explain the Adalat system under Lord Corwallis.

What were the two rival sets of judicial institutions before the passing of the Indian High Court Act of 1861? State briefly the changes affected by the High Court Act. 1861. Why was the Federal Court established in India? Explain its Constitution, Jurisdiction and significance in the Indian Legal History.


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How Supreme Court of India incorporated the jurisdiction of the Privy Council and the Federal Court? Illustrate. Or Trace briefly the history of appeals to the Privy Council in civil and Criminal matters. Or What do you understand by the prerogative writs? Describe the history of their starting and issuing in India. Trace the development and codification of Hindu and Mohammedan laws during British period in India. (a) Discuss the recomimendations made by the First Law commission in India and assess its work. Or Describe the contribution of First Law Commission with specific mention of Lex Loci Report and its influence on the development of Law in India. Explain the provisions of Indian Council Act, 1861. Also discuss its merits and demerits. Under what circumstance the Indian Council Act. Of 1861 was passed? What changes were introduced in Central or Provincial Legislature by this Act? What are the main features of the Minto-Morley reforms? Did these reforms satisfy the Indian aspirations? Explain in brief the circumstances in which the Indian Council Act, 1909 was passed? What are its main provisions? State the provisions of the Government of Indian Act, 19419. Or Discuss the Constitutional administration in India under Montague-Chelmsfor reform. Or What are its main provisions?


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(a) What are the main provisions of Indian Independence Act, 1947? Explain its effect also. (b) Trace briefly the history of law reporting in India.


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History of Courts & Legislature (India) Q.1 Give in short the history of British Settlement of Bombay and development of its administration of justice before 1726.? Ans. History of British Settlement of Bombay—In 1534, the Island of Bombay was acquired by the Portuguese King Aljonsus from the King of Gujrat Sultan Bahadur. In 1661, he transferred this Island to British King Charles II as dowry on the eve of the marriage of his sister Princess Catgheline with Charles H. As the King Charles II found it inconvenient to exercise control over this small territory from England, therefore, he transferred it to East India Company for a petty annual rent of $ 10 by the Charter of 1668. In the same year King Charles II issued a Charter which empowered the East India Company to make laws and ordinances for the good Government of the island and its inhabitants. Charter of 1668 also empowered the Company to impose pains, penalties and punishments by was of fines, imprisonment or even death. However,'such Laws were to be consonant with reason and were not to be repugnant to the laws of England. A deputy Governor and Council were appointed to administer Bombay subject control of the Governor. Development of Administration of Justice in Bombay Before -The Administration of Justice in Bombay during the period from 1668 to may be studied in-the following three stages— (i) First Stage from 1668 to 1683—-Gerald Aungier, the Governor of and Bombay, took keen interest in establishing a judicial system in Bombay During this period two judicial systems were established. The first Judicial system in Bombay was-established in 1670 which created the wing types of courts—


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(a) Court of Custom Officer—In 1670 the Island of Bombay was divided into two parts, (i) Mazagaon and (ii) Girgaon. Each of these parts had a court. Each Court consisted of 5 judges, one of*them being the English ii n dl fleer who was the presiding judge. These Courts consisted of Indian Judges also. This Court had both civil and criminal jurisdiction. In civil (he Court could decide minor disputes upto the value of 200 xeraphins. The Court exercised criminal jurisdiction over minor thefts of property, 5 Xeraphins in value. It appears that the law administered was generally the. Portuguese law as the judges were not conversant with the English Law. (ii) The Court of Deputy Governor- in-Council—The Court of Deputy Governor in Council was a Court of Appeal and also a superior Court. It heard appeals from the lower Courts and also tried cases which were beyond the jurisdiction of the lower Court. Thus, it was both an appellate Court and the Court of original jurisdition. The trial in all cases was by jury. If in the dispute both the English and the Portuguese were involved, such matters were to be tried by a jury consisting of English and Portuguese in equal numbers. In limited cases, an appeal would lie to the Governor-in-Council. It appears that, there could not be any lawyers acting as judge in any of these Courts as the East India Company showed its disinclination to send any lawyer to India. It was thought that a lawyer could only stir trouble and strife in that settlement. The punishments awarded by the Courts were similar to those prevalent in the country, rather crude and cruel. It may be noted that in this early attempt to establish a judicial system, a clear-cut distinction could not be made between the executive and the judiciary. Thus, the judicial system of 1670 was very elementary and primitive.


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The Judicial Plan of 1672—Aungier introduced second judicial system in Bombay in 1672. Under this system, a court having jurisdiction in all civil, criminal, probate and testamentary matters was established. On August 1, 1672, a governmental proclamation was made. By this proclamation the existing Purtuguese law in the Island of Bombay was abolished and it was replaced by English Law. Henceforth the English Law was to be the law of the Island in all matters. Under this proclamation a new Judicial system was also established under which following three types of courts were created- 1. Court of Judicature—A court with George Wilcox as its judge was established to hear all civil and criminal cases. The court also has the jurisdiction in matter of probate and testaments. For civil matters the court sat once a week. All the cases were decided with the help of jury. A court fee of 5% was also imposed in civil cases for deciding the criminal cases, the court used to sit once in a month. For the purpose of criminal administration of justice, Bommbay was divided into four sections. For each section there was appointed one Justice of Peace who worked as a committing magistrate. These Justices of Peace sat in the court as assessors at the time of the trial. Court of Conscience—This court was also presided over by Wilcox, but it was called as court of Conscience in the sense that the justice was very quick and summary. It entertained only petty cases. Civil cases upto 20 Xeraphenes were taken by this court. There was no provision for any court-fee. Nor the court took the help of jury. It may be said that the judge decided the matter to the best of his judgment. Court of Appeals—Deputy Governor and Council worked as Court of Appeal. They heard appeals against the judgments of the court of Judicature in all matters.


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The judicial system which was so established under the plan of 1672 worked well: It was very quick, inexpensive and efficient. But the main defect was that the judges could not enjoy that much freedom as is required for good administration of justice. The judges were not paid properly, they were always under the subjection of the executive and they could be harassed by the officers of the Company. Revolt of Captain Keigwin—The above system worked till 1683 when the Keigwin's rebellion put it to an end by capturing the island. The Island remained under the rebellions for about a year and it was again recaptured by the Company in 1684. After the recapture the Company established new judicial system. (ii) Second Stage from 1684 to 1690—under the new judicial system a f Admiralty was established in Bombay on the lines of the court of iv established in Madras under the Charter of Nov. 1683. The court fcasfcalry had jurisdiction in admiralty and maritime cases. But due to the absence of any other court at that time, in the Presidency, even civil and criminal matters went to the court. However, after some time dispute arose between Governor and Council and the Judge Advocate of the Court of Admiralty and the result was that the Civil and Criminal jurisdiction was taken away from the hands of. this court in 1685. In order to decide the civil and criminal matters, a court was established en the line of the court which existed under the plan of 1672. But no -demarcation was made as to the jurisdiction of this court and of the Court of Admiralty, therefore, disputes arose on the matters of jurisdiction. The case which were taken to this court were sometimes objected to by the court of Admiralty on the basis that they belonged to its jurisdiction. The bitterness the Judge-Advocate and the Governor increased to the extent that after the retirement of the first Judge-Advocate, no other lawyer member was ever


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appointed to the Court of Admiralty. In the absence of the lawyer member the court could not function on the lines on which it has established. Attack of Admiral Siddi—In 1690 Siddi, Admiral of the Mughal Emperor, attacked1 the Island of Bombay and captured it. It remained under hir' hands till 1718. Nothing is known about the judicial system which existed ot this Island during that period. In 1718 a new judicial system was establishe when the Administration of the Island again came into the hands of Compa" (iii) Third Stage from 1718 to 1726—Court of Judicature-—After nearly 30 years Court of judicature was established in Bombay on 25th March, 1718, which ended the old judicial system. This Court consisted of an English chief justice, 5 English judges, am 4 Indian judges. The Indian Judges were to represent the principal communities in Bombay—the Hindus, the Mohammedans, Christian. Portuguese and Parsis. The Indian judges did not enjoy equal status with the English Judges. They played more or less a subsidiary role similar to that assessors. Their main function was to acquaint the English judges with the local matters and customs and the caste systems of the local people. Jurisdiction of the Court of Judicature—Court of Judicature jurisdiction to decide civil, criminal and testamentary matters. It administer justice according to law, 'equity and good conscience and the rules and ordinance of the Company. It was also a place where several transaction could annual could be preferred from the decision of this Court to the Governor and Council. The trial was not by jury. The Court sat once a week and decided various types of cases. Criminal Jurisdiction- This Court had exercised jurisdiction over all criminal matters excepting those which were to result in capital punishment. The Court of Governor and Council alone could award capital punishment. Generally, a fair hearing was given to the parties but there were also cases where the Court acted on mere suspicion. The need of criminal justice preventive and deterrent. Branding, whipping, imprisonment during pleas were common. Q.2 Discuss the merits and demerits of judicial system established under the Charter of 1726. Or

to


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Describe in short the provision of Charter of 1726 what were the main aims of issuing this charter? How far it could succeed in achieving its aims? Ans. Main Reasons or Aims of Issuing the Charter of 1726—The main reasons which necessitated the issuing of Charter of 1726 are as follows— 1. The judicial administration and the working of the courts, in the three

Presidency towns of India was unsatisfactory. 2. With the growth in Company's trade and commercial activities in

India, the population of British Settlements had increased considerably, and Lrefore, more cases were coming to the courts for adjudication.

3. The Company desired that the power of courts should be derived from a competent authority so that their decisions would have a binding force and uniformity in judicial administration could be achieved.

4. Encouraged by the successful working of the Corporation at Madras, the Company wanted to establish similar Corporations at Bombay and Calcutta also. 5. Many Englishmen who settled in India died leaving behind them considerable movable and immovable property. This created problems before the Company relating to distribution and disposal of their assets. Although, the Mayor's Court of Madras established in 1687 was empowered to decide testamentary cases but its decisions were not recognised by the Court in England because it was a Court of the Company and not of British Crown. Therefore, the Company was involved in unnecessary litigation in England at the instance of the relatives of the deceased who died intestate in India. To avoid this, there was a need of a court in each Presidency which could take cognizance of testamentary and intestate succession cases deriving their authority from the British Crown. Thus, in order to solve the above mentioned problems and to establish an effective administration of justice in the Company's settlements in the three presidencies, the Judicial Charter was granted by the British King George I on September 24, 1726 at the instance of East India Company. Provisions of the Charter of 1726—The main provisions of the Charter of 1726 were as follows— 1. Establishment of Corporation at Bombay and Calcutta—The Charter of 1726 provided for the establishment of a Corporation at Bombay and Calcutta like the one


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which already existed in Madras. Thus, each of the Presidency towns was to have a Corporation consisting of a Mayor and nine Aldermen. The Mayor and seven of the Aldermen were to be natural born British subjects while the two Aldermen could be of any nationality. The first Mayor and Aldermen were to be appointed by the Charter itself; thereafter, the Mayor was to be elected annually by the Aldermen. The Aldermen were to hold office for life or till their residence in the Presidency town. They could, however, be removed by the Governor-in-Council on a reasonable cause. An appeal against such a removal could be made to the King-in-Council in England. The Mayor and all the Aldermen had to take an oath of allegiance to the office before the Governor and Council. 2. Civil Administration and Establishment of Mayor's Court in Presidency Towns—The Mayor and nine Aldermen of each Corporation formed a Court of Record which was called the 'Mayor's Court'. It was empowered to decide all the civil cases within the Presidency town and the factories subordinate thereto. The Mayor together with two other English Aldermen formed the quorum. The Court also exercised testamentary jurisdiction. It could grant probates of will and Letters of Administration in case of intestacy. The Court was to hold its sitting not more than three times a week. An appeal from the decision of the Mayor's Court lay to the Governor and Council. But in cases involving the value of-subject-matter above 1,000 pagodas, a further appeal lay to the King-in-Council. Being a Court of Record, the Mayor's Court could punish persons for its contempt. The process of the Court was to be executed by the Sheriffs, the junior members of the court who were initially nominated but subsequently chosen annually by the Governor and Council. There was no specific mention in the Charter of 1726 as to the law which was to be applicable in the Mayor's Court but since the earlier Charter of 1661 provided that justice was to be administered in accordance with the English law, it was presumed that the same law was to be followed by the Mayor's Court in deciding the cases. 3. Criminal Administration and Establishment of Quarter Sessions—The Governor and five senior members of the Council were appointed as Justice of Peace in each Presidency for the administration of criminal justice. They could arrest persons accused of crimes and punish them It M petty offences. They also constituted a Court


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of Oyer Terminer and Gaol Delivery and were also required to hold Quarter Sessions for trial of all offences excepting high treason for at least four times a year The Charter of 1726 introduced the trial of criminal offences with the help of'Grand' and 'Petty'juries. Thus, technical forms and procedures of criminal judicature of England were introduced through this Charter in India. 4. Jury Trial in Criminal Cases—The Charter of 1726 provided that criminal cases in Presidencies be decided with the help of Grand Jury and Petty Jury. The Grand Jury which consisted of 23 persons, was entrusted with the task of presenting persons suspected of having committed a crime. Besides, before the commencement of trial, all the evidence of the prosecution, accusation or indictment was placed before the Grand Jury, who was to return a verdict whether there was a case for trial or not. In case the gand Jury returned a verdict of 'no prima facie case', the accused was acquitted without trial. 5. Conferment of Legislative Powers on Governor and Council —The Charter of 1726 empowered the Governor and Council of each presidency-town to make bye-laws, rules and ordinances for the regulation of the Corporations and inhabitants of the Presidencies, They would also prescribe punishment for the breach of such laws and rules. The bye-laws rules and ordinances so framed and the punishments prescribed for breach thereof, were to be reasonable and not contrary to the laws of England and they could not be effective unless approved and confirmed by the Company's Court of Directors in England. Merits of Charter of 1726—Taking into consideration the above mentioned provisions of reforms, we can say that the following were the merits of the Charter of 1726— (i) Establishment of Crown's Court—-This Charter has, for the first time established the courts of Crown. The courts established so far were the courts of company. (ii) Uniformity in Judicial System—This Charter has, for the first time, established Mayor's Court in all the three presidencies i.e., Calcutta, Bombay and Madras. (iii) Provisions of Appeal to Privy Council for the First Time—For the first time a provision was made to appeal to Privy Council from the decisions of Mayor's Court. (iv) Application of English Law in Indian Soil—This Charter has for the first time introduced English law into Indian soil. Where there was no express provision of law,


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the judges used to decide the dispute on the basis of "equity, justice and good conscience." (v) Establishment of Legislative Councils—The Charter of 1726 for the first time, established local legislative councils in which the Governor with the aid of his council used to make bye-laws, rules and ordinances for the regulation of the corporations and inhabitants of the presidencies. Before 1726, the law making powers were vested in the company which could be exercised only by the "Court of Director" of the company in England. On account of the above mentioned merits, the Charter of 1726 constitutes a landmark i.e., a turning point in the legal history of India and proved to be an important event on account of the great significance in the sphere of law and justice, the charter is usually characterised as the 'judicial charter'. Demerits of Charter of 726—Inspite of the above noted merits of the Charter of 1726, there were two traditional defects of this charter— (i) Appointment of .Non-lawmen Judges—Before 1726, the traders were to be appointed on the office of judges who were ignorant of law. As judges their main aim was to bring about the settlement between the contesting parties. Even after the establishment of Crown's Court, in 1726. justice continued to be administered by non-professional judges. Thus, the object of the Charter of 1726 could not be fulfilled. (ii) No Separation of Judicial and Executive Powers is Made — Although many attempts were made to separate judicial and executive powers from one another yet the policy of the company was not firm in this respect. The Charter of 1726 also did not admit this division and an intimate relationship between executive and judiciary was maintained. Importance of Charter of 1726 — The Charter of 1726 had made a long departure from the earlier charters and had made some fundamental changes in the judicial administration. The charter for the fust time established the Crown's Court in India. Hitherto whatever courts existed they had their origin from the company's but the courts established by this Charter were the Royal Courts having full recognition in British legal system. The Charter brought about a uniform judicial system in all the three presidencies and different types of systems existing till then were abolished. For


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the first time the jurisdiction of the Privy Council was extended to this country. Here lies the beginning of the introduction of English iaw into India through judiciary. For the first time a legislature for each presidency with the power of making necessary laws was established by this charter. The Charter of 1726 is also very important in the sense that this charter introduced into presidency towns the law of England — both Common and Statutory as it then stood. Thus, on the basis of the facts stated above, we can say that the Charter of 1 726 makes a turning point in the legal history of India.


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Q 3. Write a note on the Composition, Jurisdiction and Working of Mayor's Courts under the Charter of 1726. Whether these are an improvement to the Mayor's Courts of 1687. Or a note on the Composition, Jurisdiction and Working of the Mayor's Courts under the Charter of 1687 and 1726, Or "The Charter of 1726 was inferior to that of the Charter of 1687." Do yon agree with this statement? Or Compare and contrast between the Mayor's courts of 1726 with that of Mayor's court at Madras established in 1687? Ans. Mavor's Court under the Charter of 1687 — A Corporation was set up by the Company at Madras on 29 Sep., 1688, under the Charter of 1687. It was created with the purpose of associating natives with the Englishmen Ir : - :tr to fulfill this purpose, the Company wanted to undertake certain public fare activities for which funds were needed. The Corporation cotters taxes and raised funds from the inhabitants of Madras. Composition—The Madras Corporation consisted of an English Mayor, twelve Aldermen and sixty or more Burgesses. Out of the twelve Aldermen, three were to be the covenanted English servants of the Company while the rest could be of any nationality. The Mayor was to hold office for one year and he was elected by the Aldermen from amongst themselves. The aldermen held office for life or till the residence in Madras, The vacancy of an Alderman was to be filled up by election from amongst the Burgesses. The Burgesses were to be elected by the Mayor and Aldermen while few of them were nominated by the Company from the heads of the various castes. Civil and Criminal jurisdiction—The Mayor and Aldermen constituted a civil court, while the Mayor and three senior Aldermen were Justices of Peace having criminal jurisdiction. The Mayor and two Aldermen formed the quorum. The Court held its sitting only once in a fortnight and decided criminal cases with the help of jury. The Court could award the sentence of imprisonment or fine. Appeals from the decisions of the Mayor's Court lay to the Admiralty Court in ease the value of the civil case exceeded three pagodas, and in criminal cases, where the offender was sentenced to death or loss of limb.


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Court of Record—The Mayor's court constituted a Court of Records since a Recorder was also attached to the Court. As all the members of the Mayor's Court were lay persons without expertise In law. it dispensed justice "in a summary manner according to equity, justice and good conscience" and lav enacted by the Company. Obviously, this was bound to result into uncertainty and lack of uniformity in laws. For the purpose of providing the services of a person having legal knowledge, the Company appointed Sir John Biggs, the Judge-Advocate of the Admiralty Court, as the Recorder of Mayor's Court in 1688. This appointment of Sir John Biggs as a Recorder of the Mayor's court created an anomaly because as a Judge-Advocate of the Admiralty Court, he also heard appeals from the Mayor's Court, with which he was associated as a Judge. However, this anomaly did not last long since Sir John Biggs died in 1689, and thereafter, the Company did not appoint any Recorder in the Mayor's Court. Mayor's Court under the Charter of 1726—PL See Q..2 Point 2 P. 6. Working of the Mayor's Court of 1726. The Charter of 1726, adopted the principle of independence of judiciary to a considerable extent which was a fortunate development in the legal history of India. But the constant assertion of judicial independence by the judges of the Mayor's court proved irksome to the Governor and Council which resulted into constant conflict and hostility between the two. As rightly observed by Kaye, this made the Corporations, and consequently the Courts, largely autonomous but the Council at times sought to interfere with the functioning of the Mayor?s Court and tried to dictate its terms which the Courts did not like. The strained relations between the Mayor's Court and the Governor and Council also led to the serious differences between the Government and the Corporation which are reflected in the following cases— - , The Bombay Case of 1730—A Hindu' woman of shimpi caste converted herself to Christianity and became a Roman Catholic. On account of this, her son aged twelve years left her and went to live with his Hindu relatives at Bombay, The woman filed a suit against the Hindu relative in the Mayor's Court charging him for illegal detention of her son and some jewels. The Court ordered the relative to hand over the boy to his mother. Thereupon, the heads of the caste complained to the Governor's Council Cowan who brought the matter before the Council, The Governor and Council held


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that the Mayor's Court had no authority to decide cases involving disputes relating to caste or religion of natives and warned the Mayor's Court not to interfere in such cases. The Case of Arab Merchant—In 1930 a dispute arose between the Court and the Council. An Arab merchant brought a suit in the Mayor's Court for recovery of the valuable pearls which were alleged to have been extorted from him by the men who saved him from a burning boat from the coast of Gujarat. The defendants had already been tried earlier for piracy and acquitted. The Council made suggestion to the Mayor's Court against the validity of merchant's claim. But the Mayor's Court ignored the suggestion and decreed the suit. On appeal, this decision was reversed by the Governor and. Council by casting vote of the Governor. The Oath Case of Bombay—In Bombay, a dispute arose in 1726 over the issue of form of oath to be prescribed for Hindu witnesses. The Mayor and Aldermen of Bombay were usually the members of the Grand Jury at a Quarter sessions. A conflict arose between the Bombay Council and the Mayor's Court as to the form of oath for Hindu witnesses. The Grand Jury held up two successive sessions by refusing to find and 'true bills', unless the Hindu interpreter and witnesses were sworn upon the 'Cow' instead of the holy 'Geeta". This touched the sentiments of the Hindu natives and they felt aggrieved. The Oath Case of Madras—In Madras also the relation between the Governor and Council and Mayor's Court were strained as is evident from a dispute that arose over the form of oath in 1736. In this case two Hindu merchants were imprisoned by the Mayor's Court for refusing to take the Pagoda-oath. The Hindus were opposed to the pagoda oath on the ground that it was contrary to their religion and asserted that they were prepared to take 'Geeta-oath'. This action of Mayor's Court annoyed the Hindus and they complained to4he Governor who ordered release of the imprisoned Hindus on parole. The Court was directed not to meddle unnecessarily with the religious rites and ceremonies of the natives and keep itself within limits prescribed by the Charter of 1726. Conclusion—The major causes of constant clashes, between the Council and the Mayor's Courts were lack of adequate judicial training and discipline among the judges of the Courts, attitude of the Governor and Council to treat Mayor's Court subordinate to it, and above all, both suffered from superiority complex and considered themselves


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independent to each other. The uncertainties and ambiguities of the Charter were also responsible for the above noted conflicts. Comparision of the Mayor's Court Established Under Charter of 1687 and 1726—Although the Mayor's Court of 1726 were established on the parallel lines to the Mayor's Court of 1687 yet the two differed in the following respects— 1. The Charter of 1687 being a Company's Charter, the Mayor's Court of Madras established under it was a Company's Court whereas the new Mayor's Court under the Royal Charter of 1726 was a Crown's Court. 2. The earlier Charter of 1687 conferred both, civil and criminal jurisdiction on the Mayor's Court but the new Charter of 1726 empowered the Courts to try and hear only the civil cases. Thus, the Charter of 1687 had a wider scope as compared with the Charter of 1726. 3. Under the Charter of 1687 appeals from the Mayor's Court lay to the Admiralty Court while the Charter of 1726 provided that appeals from Mayor's Court lay to the Governor and Council and a second appeal to the Court of King-in-Council of England. There was, however, no provision for second appeals in the earlier Charter of 1687. 4. The Mayor's Courts established under the Charter of 1726 possessed testamentary jurisdiction which the Charter of 1687 had not provided for. 5. The-Charter of 1687 provided fora 'Recorder' in the Mayor's Court who was to be a professional lawyer to advise the court in legal matters. But the Recorder of the Mayor's Courts established under the Charter of 1726 was not necessarily to be a legal expert and judges appointed in the Court were mostly lay persons without any legal training or experience. In this sense, the Charter of 1687 was more in tune with the imperatives of justice as compared with the Charter of 1726. 6. The Madras Corporation established under the Charter of 1687 consisted of twelve Aldermen out of which at least three were to be Englishmen. These Aldermen acted as judges of the Mayor Court, But the new Corporations set up under the Charter of 1726 consisted of nine Aldermen, out of which seven were to be Englishmen. Thus the new Mayor's courts were far more English dominated than the earlier one.


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7. No specific procedure and technical rules of law were provided for administration of justice in the old courts but the Mayor's Court of 1726 was bound by the laws and procedure of English Courts of the Crown. 8. Under the Charter of 1687, the Executive Government had nothing to do with the administration of justice but the Charter of 1726 invested the Governor and Council with the power to appeals and decide criminal cases. In what respect the Charter of 1726 was Inferior to the Charter of 1687 ?—It may be noted that criminal justice in Madras was administered by the Mayor's Court and Admiralty Court established under the Charter of 1687 whereas the Charter of 1726 vested criminal judicature in the executive and this was certainly a retrograde step. Having once divested the executive of its judicial powers, it could not be regarded as a progressive step by any test or standard, to re-invest it with judicial powers. A cardinal principle of good government is to keep judicial and executive powers separate in order to secure liberty and property of the people. Form this point of view the .Charter of 1726 was inferior to that of 1687. Besides, similar was the position with respect to the Indians, participation. The Madras Corporation of 1687 had a sizable Indians representation whereas the corporation of 1726 was to have only two non-English Aldermen and, in practice, none was ever appointed, The mayor's Court of 1726 was thoroughly an English Court with no Indian's participation and it compared unfavorably with the old Madras Mayor's Court of 1687 in this respect also. Q.4. The Charter of 1753 came into existence to overcome the defects of the Charter of 1726, Or Discuss the provisions of the Charter of 1753 and give its defects. Or Discuss the defects of the Charter of 1753 and compare it with the Charter of 1726. Ans. The Provisions of Charter of 1753—The Charter of 1753 was a modified and reformed version of the Charter of 1726. The conflicts and clashes between Mayor's Court and the Governor and Council created much confusion and chaos in the Presidencies in India. The Company, therefore, requested the British King George U to issue a fresh Charter so as to introduce suitable amendments in the earlier Charter of


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1726, The Charter of 1753 was an attempt to improve upon the earlier Charter of 1726 which suffered from several lacunaes and defects. The main provisions of this charter were as follows— 1. Revival of Mayor's Courts with Modification—The British King George II granted a new Royal Charter fur the Presidencies of Madras, Bombay and Calcutta whereby the Corporation of Madras which ceased to function because of French occupation during the period Tor 1746 to 1749 was revived again and the jurisdiction of all the three Mayor's Courts of Presidencies were modified to overcome the shortcomings of its earlier working. 2. Mayor's Courts were Subordinated to the Governor and Council—With a view to end the strained relations between the Mayor's Court and Corporation on the one hand and the Governor and Council on the other, the Charter of 1753 brought the Corporation of each Presidency under the control of the Council by changing the mode of appointment of Mayor and Aldermen. Under the new Charter, the Governor and Council was empowered to select the Mayor out of a panel of two names elected by the Mayor and Aldermen. The Council also assumed full power to appoint Aldermen in the Corporation and dismiss them. Thus, the Mayor's Court was completely subordinated to the Executive Council. 3. Natives were to be Governed by Their Own Laws—The Charter of 1753 provided that the Mayor's Court were not to try civil cases between natives, such cases being left to be decided by the natives themselves. However, the Mayor's Court could decide only those cases of the natives in which both the parties consented to accept the jurisdiction and decision of the Court. Some authorities have asserted that though the Charter clearly provided that cases of natives were to be decided by their own laws, customs and usages, but this was never followed in practice in Bombay. 4. Change in Oath System—In order to end the controversy regarding the taking of oath, the charter expressly provided that the native Indians and Christians could be allowed lo hike with in such a manner as they deemed most binding on their conscience to speak out the truth. 5. Depositing of Court-fee by (lie Litigants—This charter provided that the litigants would deposit money of court fee with the Government and not with the Courts. This was intended lo ease the burden of courts.


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6. Establishment of the Court (if Requests—The Charter provided for the establishment of a new Court, culled the Court of Requests in each Presidency town to decide civil cases uptb five pagodas. The civil cases exceeding this value were to he decided hy the Mayor's Court. The object of establishing Courts of Requests was to provide cheap and quick justice. It consisted of Commissioner varying from eight lo twenty four in number and three of them were to sit in rotation once a week. The first Commissioners were to be appointed by the Governor and Council but thereafter half of them were to be appointed by the Governor mid Council but thereafter half of them were to retire every year and the vacancies so caused, were to be filled in by the remaining Commissioners, through Ihe system of ballots. Thus, the Court of Requests was an inferior court subservient to the Council. Its jurisdiction was extended to all inhabitants, including the natives. Judicial Arrangement under the Charter of 1753—The following courts were established under the Clnirlcr of 1753 for the administration of justice in the three Presidencies— 1. The Court of Requests—This court was to decide summarily the petty civil cases upto five pagodas. Now these cases could not be tried by the Mayor's Court. 2. The Mayor's Court—This Court had jurisdiction to hear civil cases involving a sum exceeding five pagodas. It had jurisdiction over the cases of natives provided both the parties lo the suit voluntarily submitted to the jurisdiction of the court. 3. The Court of Governor-in-Council—This court had exclusive jurisdiction over criminal cases, as the Governor-in-Council acted as Justices of Peace and held Quarter sessions to decide criminal cases. It was also empowered to hear appeals from the Mayor's Court. 4. The Court of King-in- Couticil—The King-in-Council in England was empowered to hear appeals from the Court of Governor-in-Council in all-civil cases involving a sum of 1,000 pugodas or more. Working of Judicial System King-in- Council under the-Charter of 1753—The judicial system introduced by the Charter of 1753 created difficulties in settlement of civil cases of the natives residing in the presidency of Madras and involving a sum exceeding 5 pagodas. The court of Requests could decide cases only upto the value of five pagodas.


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These cases could not be tried by the Mayor's Court unless both the parties voluntarily submitted to the jurisdiction of the court and accepted its decision. The problem continued in the Presidency of Madras until the introduction of the Recorder's Court in 1798. The Presidency of Calcutta did not have this problem because of the existence of the Zamindar's Court which had jurisdiction to decide the cases of the natives. So far the Presidency of Bombay was concerned, it appears that the exemption granted to natives from the jurisdiction of Mayor's Court by the Charter of 1726, was in fact never" effectively followed in practice and the Mayor's Court freely decided the cases of natives ignoring the exemption granted to them by the earlier Charter. Defects of the Charter of !753—The Charter of 1753 was mainly devised to do away with the jurisdictional conflicts between the Mayor's Court and the Governor and Council. For this purpose the exact limits of the jurisdiction of the Mayor's court were outlined in the Charter and this Court now ceased to have jurisdiction over the cases involving natives except where both the parties voluntarily submitted to its jurisdiction and judgment. It was also expressly provided that the Mayor's Court could hear suits against the Mayor, Aldermen or the Company. Despite these positive achievements, the judicial system introduced by the Charter of 1753 suffered from the following defects— 1. The Mayor's Court-of each Presidency consisted of company's servants who were appointed by the Governor and Council. Thus, the court lost all its independence and could no longer remain impartial in cases where the company was one of the parties to the suit. 2. The servants of the company were allowed to carry on their private trade. Consequently, there were often disputes between them and the natives. The Mayor's court being a court of the company's junior servants, usually took the partisan view and favoured their fellowmen. Beside, the Governor and Council also exerted undue pressure on the judges of the Mayor's court. This frustrated the cause of justice. 3. The Governor and Council had jurisdiction over civil as well as criminal cases. They were also the executive Heads of their Presidency. Consequently, they exercised certain legislative powers as well. Thus, all the three functions were centralised in a single authority which was a derogate step so far indpenendence of judiciary was concerned.


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4. The judges of the Mayor's Courts were laymen and not well versed in law. They were supposed to follow the English law but had no knowledge of it. In the absence of law-reporting in India, the complicated cases had to be referred to England for opinion. This caused difficulties and delay in the disposal of cases. 5. The exclusion of Indians in sharing the administration of justice was the most disgusting feature of the history of early courts. Significantly, the Indian Christians were allowed to participate as Jurors in the court of Sessions under the Charters of 1726 and 1753. 6. The territorial jurisdiction of all the courts established under the Charter of 1753 was confined to the respective Presidency. Therefore, there was no forum to take cognizance of cases arising beyond those limits whereas the activities of the English Company and its servants had extended beyond these territories. Inspite of the above mentioned defects in the judicial scheme introduced by the Charter of 1753, it must be accepted that it made a good beginning for the establishment of a uniform judicial system in the company's settlements on the basis of English law and procedure and thus laid the foundation for an improvised judiciary in times to come. In 1770 Bolt made a bold attempt to make the Mayor's courts independent of the control of the Governor and Council who had the power of obstructing and interfering with the course of justice in presidencies. He suggested that appellate jurisdiction of the Governor and Council's Court should also be abolished and instead, a Court of Appeals should be instituted to hear appeals from the Mayor's Court. This Court of Appeals should also be completely indpenendent of the Governor and Council's influence. However, these suggestions of Bolt could not be implemented. In 1774 the Mayor's Court of Calcutta was replaced by the Supreme Court of Judicature. The Mayor's Courts at Bombay and Madras were replaced by the Recorder's Court in 1798 by the Charter issued by King George 111 on Feb. 1, 1798 for this purpose. Comparision of the Charter of 1753 with the Charter of 1726—Taking into consideration the various provisions noted above it can be said that in effect the Mayor and Aldermen became the nominee of the Government. The Charter of 1753 reduced the powers and independence of Mayor's Court was no doubt, retrograde step and Charter of 1753 was inferior to that of 1726 in the respect. Criticising the system, Bolt


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said that the "Mayor's Court had the power of electing their own members to fill up des," that court was the bulwark of all security with regard to property in the settlement and might be considered in a great degree as independent. "But the Charter of 1753 transferred the right of nominating Aldermen to the Governor and Council who thus got the 'unconstitutional' power of "making and unmaking the judges." The Govt. had now the power to appoint and dismiss the Aldermen i.e., judges of the Mayor's Court, and therefore, the judiciary both civil and criminal, became very closely connected with the executive. Judiciary infact became a mere branch of executive whereas the separation of executive from judiciary is the cardinal principle for imparting an unbiased justice. • s? . Q.5 Describe the history of British Settlement of Madras and explain how its judicial institutions developed in three stages before 1726? Ans. British Settlement of Madras—Madras Settlement established out of a grant made by the local Raja in 1639 who empowered the Company to erect a fortified factory on a strip of land, to mint money and to govern the village of Madraspatnam, on condition that half of the customs and revenues of the port should be paid to the Raja. The new trading station was named Fort St. George and an Agent and Council took over its charge in 1641 under the control of Surat Presidency. It acquired the status of Presidency in 1666. The Fort Area, inhabited by the English and Europeans, was later designated as 'White Town' and the village area of Madraspatnam, inhabited by the natives, as 'Black Town'. The whole establishment ultimately developed into the modern city of Madras. Administration of Justice- The administration of justice in Madras before 1726 developed into following three stages, i.e.— 1. First Stage From 1639 to 1665—During this period the separate provisions were made for the administration of justice in Black Town and White Town as under— (i) Choultry Court Administered Justice in Black Town— Originally, Madraspatnam had its own system of village administration which was not interfered with by the English for some time to come. There was a village headman known as Adigar, i.e., Adhikari, who was responsible for the maintenance of law and order. He administered justice to the natives at the Choultry Court according to long-established usages. It was


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a Court of petty jurisdiction deciding small matters of civil nature and breaches of peace. In 1654, for the first time two English servants of the Company replaced the Adigar and became judges at the Choultry to administer justice during alternate weeks with the help of the Adigar. But in 1663, the English judges gave way to the natives, though again and finally in 1665, an English servant of the Company was appointed in their place to administer equal justice to al! persons in Madraspatnam without partiality, oppression or arbitary will. In 1668twG English servants of the Compiny took over the administration of justice at the Choultry siting twice a week. Appeals could be taken to the Agent-in-Council, (ii) Agent-in-Council Administered Justice in White Town—The Agent-in-Council administered civil and criminal justice to Englishmen. They could not, however, decide the cases of capital offences. At times they took counsel from England to dispose of the cases. The mode in which justice was administered at this stage is nowhere described, The Charter of 1661 authorized the Company to appoint Governors and other officers for its Government in India. It might govern its employees in a legal and reasonable manner and punish them for misdemeanour and Tine them for breach of orders. The Governors-in-Council of each place were empowered to judge all persons belonging to them and the Company or who would live under them in all causes, civil or criminal, according to the laws of England and execute judgment accordingly. This general provision, emanating directly from the Crown, is said to have put judicial power in the sole hands of the executive and restricted the law to be administered to that of England. The grant of the Charter of 1661 was followed by raising the status of the Agency of Madras to that of Presidency in 1666. 2. Second Stage from 1666 to 1686—In 1678 the whole judicial system was reorganized and put on a sound footing as under— (i) Choultry Court—In this period the number of English Judges was increased from two to three. At least two of them were to administer justice twice a week. They might be assisted by two or more officers of the Company. The Court had to decide petty criminal cases and civil cases upto the valuation of 60 pagodas, and cases of higher value by consent of the parties. Aggrieved parties were allowed to prefer appeals to the Court of Judicature, consisting of the Governor and members of his Council, where a


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jury was employed to give verdicts. All sentences were to be duly registered. Alienations or sales of slaves, houses and other property to be recorded. (ii) Court of Judicature—Since administration of justice was not efficient and regular in civil and criminal cases. Therefore, the Governor-in-Council declared themselves to be a Court of Judicature for the trial of civil and criminal cases, except petty ones, with the help of a jury of twelve men according to English law twice a week. The judges of the Choultry and the Constable or officers under them were to execute nil orders, writs and summons issued by the Court of Judicature for returning of juries, executions after judgments, apprehension of criminals and the like. A Marshall to take charge of the prisoners, a Clerk of the Court,, to act as the Clerk of the Peace also, and one other officer of the Court, were appointed. Public notices were given as to the time and place of murder trials. Jurors and witnesses were sworn in the prescribed form. Punishment of forfeiture of "goods and chattels" to the Crown could be awarded. 3. Third Stage 1686 to 1726—-During this period the following courts were established for the administration of justice—- (i) Court of Admiralty—Under the Charters of 1683 and 1686, a Court of Admiralty was established in Madras in 1686 superseding the Court of Judicature which had temporarily ceased to exist in 1684. Three senior civil servants of the Company were the personnel of the Admiralty Court—to act as its Judge and the other two as his assistants. In 1687 the Court was provided with the services of an Attorney-General mid a Registrar. The Court was not confined to deciding admiralty cases proper but it also acted as a General Court of Judicature and the Supreme Court of the settlement. This was certainly the position from July 1687 when Sir John Hijus a person learned in the civil law, was sworn in as Judge-Advocate ol the Court on an yearly salary. He presided at the Quarter Sessions and s.u .u .111 occasional Court-Martial as its President trying pirates, though the (inventor usually presided at Court-Martial. Sir John became Recorder ol the Mayor's Court constituted in 1688 to assist it in its judicial work. The Admiralty Court heard appeals from the Mayor's Court. Sir John birrs expired in 1689. Thereafter the Admiralty Court ceased to operate. (ii) Court of Governor-in-Council—In 1690 the governor-in-Council temporarily established a Court of Judicature consisting of the Governor as Judge-Advocate and two members of the Council as Judges. Two merchants were associated with them. An


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Armenian merchant wus to enquire into cases of Armenians and other foreigners, being well-versed in heir languages, laws and customs. Likewise a Hindu merchant was to enquire into the cases of natives, being expert in native languages, laws iind customs. An Attorney-General was also attached to the Court. It subsisted till 1692. when a new Judge-Advocate, John Dolben from England, took his seat at the Admiralty, being assisted by two merchants. (iii) Mayor's Court—The Mayor and Aldermen were to be a Court of Record with power to decide all civil and .criminal cases. It was to deal with offences by fine, imprisonment or corporal punishment. A right of appeal to the Court of Admiralty was guaranteed in civil cases where the value of the award exceeded 3 Pagodas and in criminal cases if the offender was sentenced to lose life or limb. Some uncertainty, however, subsisted as to the power of the Mayor's Court to. inflict capital punishment. In 1712 the Governor-in-Council conceded that the Mayor's Court could, under the Charter, sentence a criminal to death, and the Court did so in certain cases of murder, but in If 18, the Governor-in-Council expressed the view that the Mayor's Court could not award capital punishment in cases of Englishmen, though it could do so in those of the native-criminals. The Mayor and two Aldermen formed the quorum of the Mayor's Court, sitting once a fortnight. An English covenant servant of the Company, skilful in the laws, was to be nominated by the Mayor and Aldermen as the Recorder of the Court, but the first Recorder was Sir John Biggs, nominated by the Charter, to assist it in its judicial work. An Englishman, well skilled in the native languages, was to work as the Clerk of the Peace. The Mayor and three senior aldermen were to be the Justices of the Peace. Jury System—The jury system appears to have been followed in the Admiralty and Mayor's Courts in their criminal proceedings. (iv) Choultry Court—The Choultry Court was continued with a diminished jurisdiction. Two of the Aldermen who were Justices of the Peace were to sit twice a week at Choultry to deal with cases of petty offences and small matters of civil nature upto a valuation of 2 Pagodas. Thus, the Choultry became a Court of petty jurisdiction. The civil jurisdiction of the Choultry Court was taken away by the Court of Request in 1753, but it continued with its criminal jurisdiction till 1800.


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Conclusion—Thus, it can be said in brief that at the end of the year 1704 there existed three Courts—Choultry Court, Mayor's Court and the Court of the Governor-in-Council. This system of administering justice went up to the year 1727, when in that year a new revolution in the field of judicial institutions came by the establishment of the Mayor's Court at Madras. This Mayor's court differed from the existing Mayor's courts of 1687 which was merely the Company's Court, while the Court of 1727 was King's Court established under Royal Charter. Q. 5. (b)ExpIain the system of Administration of Justice at Surat Settlement before 1726. Ans. System of Administration of Justice at Surat Before 1726—The East India Company selected Surat as a suitable place for the purpose of its trading centre as it was an important commercial centre and enjoyed the status of an international port under the reign of Moghul Emperor Jahangir. The English factories in various settlements were within the territorial jurisdiction of the Mohgul Emperor, therefore, the permission of the latter was necessary for the English Company to carry on its trade and business. The King of England, James f, sent Sir Thomas Roe to India in 1615 to secure certain concessions from the Moghul Emperor. He reached Moghul Darbarat Agra in 1615 by issuing a finnan, who allowed the English man to carry on their trade freely and establish a factory at Surat. The main concessions as grant were as under— (i) The Englishmen were allowed to live in accordance with their own laws and religion without any local interference. They were allowed this privilege under the treaty settlement of 1618 with the Moghul Emperor. (ii) The disputes amongst the Englishmen were to be settled by their own tribunals. (iii) The disputes between the Englishmen and the natives were to be settled by the local native authorities. (iv) All cases of complaints and controversies relating to Englishmen were to be looked into by the Kazi of the place who was to safeguard their interests and ensure justice for them. The Kari was also directed to treat Englishmen with respect and courtesy.


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Administrative Set-up of Surat Factory—In pursuance of the privileges granted by Moghul Emperor the Company established a factory at Surat in 1618 with a 'Governor' or a 'President* as its head. It was a principal trading station of company having authority over other subordinate factories. In this factory, the Company had its warehouses, offices and residential quarters for its officers and servants. The affairs of the Company were regulated by majority vote in the Council. The President had only right of one vote and he did not enjoy any veto power. Law and Justice in Surat— (a) English System of Administration of Justice—No regular courts or tribunals existed for deciding disputes arising between the Englishmen infer se. The President and Council of the factory was empowered by the British Crown to administer justice in criminal cases. Later, the Royal Grant of 1623 issued by James I authorised the Company to grant commission to any of its President and Council to try and punish the English subjects, their heirs and successors, who were under the employment of the Company. The President and Council could inflict death sentence only in case of the offence of mutiny or felony after seeking the verdict of a jury. They were also empowered to administer civil justice, but being non-legal persons, they decided cases according to their own notions of justice and fair-play though they were supposed to follow the English law. (b) Indian System of Administration of Justice — The English people were- governed by a. dual system of law namely — (i) Ira their own matters by the 'laws of England; (ii) In matters with Indians by the native law of this country by the native courts. But the working of" the native tribunals suffered from many serious defects. Bribery and corruption was rampant and the judicial officers were arbitrary in their decisions. Consequently, the Englishmen did not like to be tried by the native courts and exploited the situation to their advantage by taking law into their own hands. During the course of time, Surat lost its importance as a trading centre and the Company considered Bombay more suitable for its trading activities. Therefore, the headquarter of the President and Council was shifted to Bombay in May 1687 and Sural lost its importance as a British trading centre once for all.


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Trace in brief the history of British settlement and administration of justice at Calcutta by East India Company before 1726. Ans. British Settlement in Calcutta — The foundation of the settlement in Calcutta was laid down on 24th of August, 1690 by one Job Charnock who was a servant of the company. The first establishment was made by establishing a factory at 'Sutanari' on the bank of river Hugli. A fort was established and it was named as Fort William. Eight years after the establishment in 1698 the company secured the zamindari of three villages, namely .Calcutta, Sulanati andGovindpur from the Subedarof Bengal, one of the grand-sons of Aurangzeb. As zamindar the company obtained all the privileges which were available to the zamindars and thezamindars in those days enjoyed rights and privileges, beyond limits. If the ruler got the revenue in time, he did not care as to what the zamindars were doing within their zamindari. Although Mughal rulers had established a good hierarchy of courts and also a good administration of justice, yet after Aurangzeb, it begain to tremble and lost its importance and prestige. The courts became corrupt and did not sit regularly to impart justice to the people. There was no proper control .over them of the Nawab. Administration of Justice at Calcutta — The judicial system which was established by the Company in Calcutta was very elementary. No specific provision was made as to how the courts had to work and what canons of law and justice they had to observe. So this system may be called less as judicial system and more as an administration of convenience. The system In this form worked till the Charter of 1 726 established a new and uniform judicial system in all the three Presidencies. Q.6 How and when "The East India Company" was formed? What were its powers and functions originally? Ans. Formation of the East India Company — The earliest British establishment for India was created by a Charter of 'Queen Eligailbeth' issued on 3 1 . 1 2. 1 600. By this Charter the East India Company was incorporated in England. Its full name was "The Governor and Company of Merchants of London Trading into the East Indies." In the beginning it was created for fifteen years but the Company could be wound up even earlier. However, on." 3 1 .5. 1609 by a new Charter James I gave a perpetual life to


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life Company subject to the Crown's power to revoke it on 3 years' notice on proof of injury to the nation. The total members of the Company constituted a General Court. The general Court elected a Governor and twenty four directors for managing the Company's business. Governor and directors together were called as 'Court of Dikrectors:. The Court of Directors was elected annually, but its members were eligible for re-flection. However, they could be removed from their office by the General Court even before the expiry of their terra. Powers and functions of East India Company — The Company was originallycreated to carry on and enjoy an exclusive trading right in the Countrieslying beyond the Cape of Good Hope eastward viz., Asia. Africa etc. No British citizen could carry trade activities in this area without a licence horn the Company. At Ha- same time some more powers were given to the Company wlm h um m I ik- nature of Legislative powers. The Company in its general could pass laws, orders and ordinances for its good government, for its servants and for the furtherance and continuance of its trade and traffic. It could also punish the persons disobeying its laws. However, no punishment could be given which was unreasonable or contrary to the laws, statutes or customs of England. Q.7 Discuss the composition, jurisdiction and working of the Supreme Court established in 1774 under the Regulating Act, 1773. How far the objectives behind its establishment were achieved? Ans. Establishment of Supreme Court Under the Crown's Charter of 1774—In pursuance of the power given by the Regulating Act, 1773, the Crown issued a Charter on March 26,1774, establishing the Supreme Court of Judicature at Calcutta. The Charter settled the various details relating to the Court, and abolished the legal provisions of the Charter of 1753, which meant the supersession of the Mayor's Court and the Court of Oyer and Terminer and Gaol Delivery Composition of Supreme Court—According to S. 13 of the Regulating Act, 1773, the Supreme Conn was constituted to be a Court of Record. It consisted of a Chief Justice and three Puisne Judges to be appointed by the Crown lo act during the pleasure of the Crown The


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Charter appointed Sir Elijah Imply as the Chief Justice, and Robert Clambers, S.C. Le Maistre and John Hyde as the three Puisne Judges They were Barristers of not less than five years standing, All the Judges were declared to be Justices of the Peace and Coroners within Bengal, Bihar and Orissa. In authority and jurisdiction, they were to be in the position of Judges of the King's Bench in England. The Chief Justice was given a casting .vote. Writs, summons, rules, orders and other mandatory, process issued by the Court were to run in the Crown's name. Jurisdiction of Supreme Court—The various jurisdictions of the Supreme Court were as under- 1. Original Jurisdiction in Civil Cases—The Court was authorized to hear, examine, try and determine all civil causes, suits and actions against (i) The Company, (ii) The Mayor and Aldermen of Calcutta, (iii) The Crown's subjects who were residents within Bengal, Bihar and Qrissa or who should have resided there or who should have any debts, effects or estate, real or personal, within the same, (iv) Any person who was employed by, or was directly or indirectly in the service of the Company, or the Mayor and Alderman or any of the Crown's subjects, and (v) Any inhabitant of India residing in the said Provinces if he entered into an agreement in writing with any of the Crown's subjects that in case of dispute between them, the matter should be determined in the Supreme Court, provided the cause of action exceeded the sum of Rs. 500. 2. Jurisdiction as a Court of Equity—The Supreme Court was to be a Court of Equity in the English legal sense of the word, [t was given full power 10 administer justice in a summary manner as nearly as might be according, to the rules and proceedings of the High Court of Chancery in Great Britain. It could issue Subpoena and other process to compel the appearance and answer upon oath of the opposite party, as well as to compel obedience to the decree and order of the Court in such manner and form and lo such effect as the High Chancellor of Great Britain did. 3. Jurisdiction as a Criminal Court—The Supreme Court was to be a Court of Oyer and Terminer and Gaol Delivery in and for the town of Calcutta, the of l-'ort William and Subordinate factories. In this capacity its authority was like that of the Justices of Oyer and Terminer and Gaol Delivery in England. It has lo administer criminal justice in all cases of grave offences and misdemeanours in such manner and form or as


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nearly as The conditions and circumstances of the place and persons admitted of, as the Court of Qyer and Terminer and Gaol Delivery did in England. The Charter provided for the employment of Grand Jury and Petty Jury, summoned by tine Sheriff, composed of the subjects of Great Britain residing in Calcutta. Jurisdiction as an Ecclesiastical Court—The Supreme Court was given ecclesiastical jurisdiction over British subjects residing in Bengal, Bihar and Orissa, It was to administer and execute ecclesiastical law as used and exercised in the diocese of London so far as the local circumstances required. The Court might grant probates of wills and testaments of the deceased British subjects and letters of administration in regard to their effects if they died intestate or without appointing executors of their wills. Jurisdiction as an Admiralty Court—The Supreme Court was declared to be a Court of Admiralty for Bengal, Bihar and Orissa to hear and try all cases, civil and maritime, in the same manner as the High Court of Admiralty did in l-nglund. It was given power to try, with the help of a Petty Jury of British subjects residents in the town of Calcutta, and punish all treasons, murders, piracies and other crimes maritime, committed on the high-seas, in accordance with the laws and customs of the High Court of Admiralty in England. Jurisdiction as to Supervision Over Inferior Courts—The Court of Requests, as established in 1753, the Courts of the Quarter Sessions to be held by the Justices of the Peace, Sheriffs, and other Magistrates were put under the control and supervision of the Supreme Court in the same manner and form as the inferior courts and Magistrates in England were under the orderand control of the Court of King's Bench. Jurisdiction as to Appeals—A civil appeal might be taken to the King-in-Council. Ft was to be filed within a period of six months of the delivery of judgment and the matter in dispute was to be over 1,000 Pagodas in value. Criminal appeals might also be preferred to the King-in-Council, but in respect of them the Supreme Court was given full power and absolute discretion to allow or deny such appeals. 8. Power to Suspend Execution of Sentence—The Supreme Court was empowered to reprieve and suspend the execution of any capital sentences in hard cases which presented a proper occasion for mercy and wherein it might be proper to remit the general severity of the law. The records of the cases with the reasons for


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recommending the criminals to mercy were to be transmitted to the King-in-Council for consideration. Immunity Available to Councillors and Judges—The Governor General, the Councilors, the Chief Justice and ihc Judges of the Supreme Court were not liable to be arrested or imprisoned in any action, suit or proceeding except in cases of treason or felony. Merits of the Supreme Court or How Far the Objectives Behind Its Establishment were Achieved?—-The merits of this court are as under— 1. The Supreme Court judges were professional lawyers, sent from England appointed by crown and holding their post during its pleasure. Thus, judges had knowledge of English law and could deal with the cases effecting life and property of the people. 2. The tenure of the judges was independent from the wishes of company of Calcutta Govt. This-gave independence to judiciary. 3. For the first time judiciary was divorced from the executive. Thus, legality of administrative action of the company's servants could be judged by the legal norms. 4. Jurisdiction of civil and criminal courts of 1753 was confined to the limits of Calcutta and could not thus lake cogni/.ance of cases arising in Bengal, Bihar and Orissa. The Englishman residing in these territories being beyond their jurisdiction could commit crime with impunity. This major defect was removed by the formation of this court. 5. The Supreme Court was simultaneously a Court of Law as well as a Court of Equity and having different kinds of jurisdiction as admiralty and ecclesiastical. In this way it was a great improvement of judicial system prevailing even in England at that time. 6. The Supreme Court was to have powers to supervise and control over the company's courts and had powers to issue writs. Defects of the Supreme Court of How Supreme Court Proved to be a Reign of Terror in Practice ?—Inspite of the above mentioned merits, the Supreme Court, had many defects, i.e., 1. Vague Jurisdiction of Supreme Court—Provisions of Regulating Act in relation to Calcutta were specific, whereas relating to Bengal, Bihar and Orissa, they were quite vague and uncertain. The Act distinguished between Calcutta on the one hand and


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Bengal, Bihar and Orissa on the other hand. Similarly, specific powers for administration and legislation regarding Calcutta were vested in Governor-General-in-Council but no such specific powers were vested in relation to Diwani territory. Therefore, it was very doubtful as to wheather the powers of Supreme Court extended to Diwani territory or not. 2. Vague Provisions of Law to be Applied by Supreme Court— Certain terms like 'British Subjects', 'Subjects of His Majesty', 'Subject of Great Britain, of us and our heirs', which were used to define jurisdiction of Supreme Court were not defined clearly. 3. Conflict Between the Executive and Judiciary—Supreme Court was given power to examine the legality of the Diwani Acts of the 'company's servants' or 'His Majesty's subjects' or persons 'directly or indirectly in the service of the company' whereas council was of the view that activities relating to revenue collection do not come under courts jurisdiction. Unfortunately provisions of the Act did not make clear as to whether 'Management etc.'of revenue vested in council or not. Provisions relating to relations between Supreme Court and Governor-General and Council were uncertain. The Governor-General and Council were of the opinion that they were beyond the jurisdiction of the court, their act whether official or individual cannot be questioned in the court. On the other hand, court took cogn izance to their official and individual acts. This anomaly made relations of both of these two distasteful. 4. Conflict Between the Supreme Court and Company's Court— Because of establishment of Supreme Court two independent and parallel judicial system came into existence, Adalats in Diwani territory and Supreme Court at Calcutta. There was no mutual relationship between the two, therefore, conflict between the two systems became inevitable. Patna and Kamaluddin Cases are the examples of this conflict. 5. Harshness of the Procedure—Creation of Supreme Court gave rise to the difficulties for Indians residing in Bengal, Bihar and Orissa, the court was out of harmony with the mode of life, traditions and manners of Indians. This created dissatisfaction among these people. Supreme Court followed the technical English common civil procedure. A very objectionable feature of this procedure was arrest on 'manse process'. This again gave rise to host of difficulties for Indians residing in Bengal, Bihar and Orissa.


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Conclusion—On account of the above mentioned difficulties and deficiencies of the Regulating Act the Supreme Court failed to fulfil the hopes of their framers, therefore, it is remarked that instead of organising Government the Regulation Act of 1773 organised the centers of conflict and the Supreme Court proved to be reign of terror.

Q.8 Explain the facts and the judgement of the Cossijurah Case. Ans. Cossijurah Case—One Cossinaut Baboo had lenla large sum of money to the Zamindar or Raja of Cossijurah. He had tried in vain to obtain this money through the Board of Revenue at Calcutta. He. therefore, sued the Raja in the Supreme Court and filed an affidavit in August. 1779 which stated that the Raja was employed in the collection of revenue and was, therefore, amenable to the Court's jurisdiction. The Collector of Midnapore, in whose district the Raja resided, informed the Governor-General-ir-Council about this development and said that the Raja was hiding himself in order to avoid service of the writ to a great loss of the revenue.

The council, after having obtained the opinion of the Advocate-General, issued a notification to all landholders informing them that they were under no obligation to pay any attention to the process of the Court unless they were servants of the Company or had subjected themselves by their own consent to the jurisdiction of the Court. A special direction to the same effect was issued to the Raja of Cossijurah, who thereupon took no notice of the further process of the Court. His people drove away the Sheriff and his officers when they tried to arrest him under the writ of capias.

The Supreme Court, thereupon, issued another writ to sequestrate the property of the Raja to compel his appearance. The Sheriff with a small armed force of men marched to Cossijurah in order to execute the wit. seized the person of the Raja violently, outraged the sanctity of the family idol and broke into the Zaiiana. In the meanwhile, the English Commander of troops at Midnapore marched with a force of sepoys against the Sheriffs party and arresled them in execution of the orders of the Governor-General-in-Council. Tine process to arrest the Commander for contempt was also prevented by military force.

-At last Cossinaul Baboo brought an action for trespass against Warren Hastings and members of the Council individually. At first they entered appearances but when they found that they were sued for acts done by them in their official capacity, they


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withdrew and would not submit to any process of the Court against them. The Council made an announcement to all persons in Bengal out of Calcutta that they were not to take any notice of the process of the Court; if the Court attempted to enforce its process, the Council would prevent it by military force. . In this case the action of the Council has been criticized as quite illegal and most violent without any justification, but it is natural and intelligible. The councillors hated the Supreme Court. It represented an authority which the servants of the Company practically repudiated. It represented English law which again they hated both for its defects and merits. It was a matter of great grievance to It)em that the Zamindars should be interfered with if, in order to pay the revenue punctually, they squeezed their ryots in a way which she English lawyers regarded as oppressive or extortionate. Though not sure, they thought that the Court violated the Regulating Act by acting beyond the jurisdiction given to it. To be sure, the best course open for them was to have a ruling from the Court and to test its correctness by an appeal to the King-in-Council. But they adopted a simpler course; they had the military force in their hands as well as the public feeling and preferred to use that force. According to J.F. Stephen this was a wrong position according to certain historians. Q.9 (b) Explain the main Provision of The East India Company Act or Pitt's India Act, 1784? Ans. East India Company Act or Pitt's India Act, 1784—The Pitt's India Act, 1 784 was passed to place the company under the direct control of a body representing the British Govt. The main provisions of Pitt's India Act were as follows (i) Establishment of Board of Control—The Act established a Board of control which consisted of the Chancellor of the Exchequer and one of the Secretaries of State and four other members 'of the Privy Council. They were appointed by the King and held office during his pleasure. The quorum of the Board was fixed at three. The presiding officer had a casting vote. They had power to superintend, direct and control all acts and operations which in any way related to the civil or military Government or


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revenues of the British territorial possession in the East India. The Directors of the company were bound to obey all orders and directions of the Board. (ii) Establishment of a Secret Committee—A secret committee consisting of three Directors was formed. The Board of Control was also empowered to send secret directions to such secret committee to transmit them to India without disclosing their contents to other Directors. (iii) Reduction of the Strength of the Governor's-General -in-Council—The number of members of the Governor-General-in-Council was reduced to three. The Commander-in-Chief of the Company's forces in India was to be one of the members. The Government of the Presidencies of Madras and Bombay were to consist of a Governor and three councillors. The Commander-in-Chief of the Presidency was to be one of the councillors except in a case where the Commander-in-Chief of the Company's forces in India happened (o be in the Presidency, and in such a case he was to be a member in place of the local Commander-in-Chief. The Governor-General had a casting vote. (iv) Acceptance of Gifts etc. were Prohibited—Acceptance of presents by any person in the employment of the Company or the Crown was made punishable. The servants of the Company were required to declare on oath the account of property, they had brought from India. All the British subjects were made subject to the jurisdiction of the courts in India. (v) Establishment of a Special Court—A special court consisting of three judges, four peers and six members of the House of Commons was constituted to try in England any offence committed in India. This, act continued to be in force upto 1858 but in 1786 some of its provisions were amended. Conclusion—The above steps were taken for neutralising the opposition from the Company. Pitt claimed that the bill came forward fortified and recommended by the consent of the Company. This Act aimed that the rule by the private person of the State should not be without control. l. Write a note on the Warren Hastings Judicial Plan of 1772 and1774 and indicate its influence on the system of adminstration of justice of India. Or


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Write a note on the reforms "made by Warren Hastings in the administration of law and justice in Bengal. What is his special contribution for the preservation of Indian Law? Ans. Warren Hastings remained Governor of Bengal from 1772 to 1774, In 1774 he was promoted to the rank of Governor-General. He remained on this post till 1785. He. was a competent and an efficient administrator. The Administration of justice at the time Warren Hastings took over as Governor of Bengal was in a bad shape. It was almost verging on a total collapse. The dual system of government proved very defective and unsatisfactory. The courts had become the instruments of power rather than of justice. Warren Hastings who assumed office of Governor of Fort William on April 13, 1772, made strenuous efforts to remove the evils in the existing judicial administration and revenue collection. For this purpose, he appointed a committeeconsisting of the Governor and four members of the Council calledthe 'Committee of Circuit'. The Committee prepared a Judicial Plan on August 15, 1772 to regulate the administration of justice and revenue collection. This plan was popularly known as the 'Hastings Plan of 1772." Hasting's Judicial Plan of 1772—This Plan consisted of 37 regulations dealing with civil and criminal laws. He divided the Diwani area of Bengal, Bihar and Orissa into several districts, each having .in English officer called the 'Collector' as its head. Thus, district was the unit of administration for justice and revenue collection. The Collector was primarily responsible for collection of revenue. The main features of Judicial Plan of 1772 are as under— I. Reforms Made in Revenue Administration I In- whole revenue system was re-organised. The Revenue Boards at Murshidabad and Patna were abolished and a supreme authority called the Board of Revenue was set up in Calcutta which consisted of the Governor and all the members of the Council. The District Supervisors who were appointed in 1769 by Verelst were made Collector of their respective districts and were to look after the worke of revenue collection. He was assisted by a native officer called the Naib Diwanwho acted as a native revenue executive. All orders were to be issued by the Collector under the Company's seal and funds were to pass through him to the treasury at Calcutta.


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The Board of Revenue comprising Governor and his Councillors at Calcutta sat twice a week for issuing necessary orders and instructions to the Collectors of Districts and inspecting, auditing and passing the revenue accounts. 2. Reforms Made in the Administration of Civil Justice—The following three types of courts were established lor the purpose of making reforms in the existing judicial system— (i) Mofussil Diwani Adalat—In each district, a Mofussil Diwani Adalat was established which was presided over by the Collector as the Judge. The Court took cognizance of all civil cases including property, inheritance, succession, caste, marriage, contracts, accounts etc. The cases relating to caste, religion, marriage and inheritance of tghe native were to be decided according to their usages and customs of Hindu law for Hindus and Muslim law for Mohammedans was applied. The Collector being an Englishman, was ignorant about the personal laws of natives, hence he was assisted by native laws officers called Kazi and Pandits who expounded the law to him. The Court held its sittings twice a week in open court. The matters relating to succession to Zamindari and Taluqdari property could not be submitted to Mofussil Court as they were reserved for the Governor and Council. Appeals from these courts were to be heard by the Sadar Diwani Adalat at Calcutta where the subject-matter of the case exceeded rupees five hundred. (ii) Small Causes Adalats—There were Small Causes Adalats headed by the Head Farmer of the Pergunnah decided cases upto the value of rupees ten. (iii) Sadar Diwani Adalat—A Sadar Diwani Adalat was established at Calcutta which exercised appellate jurisdiction over Mofussil Diwani Adalats in all cases where the subject-matter of the suit exceeded Rs. 500/-. This Court comprised Governor as its President and at least two members of the Council aided by Diwan of Treasury and Chief Kanungos. 3. Reforms Made in the Aministration of Criminal Justice—For the purpose of reforming the criminal administration of justice two types of courts were established—' (i) Mofussil Nijamat Adalat-A court of Criminal Judicature called the Fauzdari Adalat was established in each district. It tried serious offences including murder, robbery, theft, fraud, perjury etc. This Court was assisted by a Kazi or Mufti and two Moulvies


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who expounded the Mohammedan law of crimes. The Mufti was supposed to be a person well versed in the Mohammedan Law of crimes and his function was to expound the law and give 'futwa' after hearing the parties in evidence. But the Collector exercised overall supervision on the working of the Fouzdari Adalat. He was enjoined to see that all necessary witnesses were summoned and examined and the decision was fair and impartial in accordance with the well settled principles of law and procedure. (ii) Sadar Nizamat Adalat—A superior court called the Sadar Nizamat Adalat was, established at Calcutta which exercised control over Fouzdari Adalats. It was presided by an Indian judge known as the Daroga-i-Ada!at who was to be assisted by the Chief Kazi, Chief Mufti and three Moulvies. These persons were appointed by the Nawab on the advice of the Governor. The Court .was to revise all the proceedings of the Fouzadari Adalats; and signify its approbation or disapprobation in capital cases with reasons, and to prepare the sentence for the warrant of the Nizam. The Governor and Council exercised general supervision over the proceedings of Sadar Nizamat Adalat so that even handed justice could be ensured without fear or favour. Thus, Fouzdari Adalats were not empowered to award death sentence, but they were required to transmit .the evidence in capital cases with their opinion to the Sadar Nizamat Court for final decision. Again, fines over one hundred rupees were to be confirmed by the Sadar Court, which alone could decree forfeiture or confiscation of property. The dacoits were to be executed in their own village and the entire village was fined. The family members of the dacoits were made State-slaves. Contribution of Warren Hastings in the Preservation of Indian Laws—The Judicial Plan of 1772 safeguarded the personal laws of Hindus and Muslims. The cases relating to inheritance, marriage, caste etc. were to be decided according to the laws of Quran with regard to Muslims, and laws of Shastras with respect to the Hindus. Both, Hindus and Muslims were treated alike. This provision shows the foresightedness of Hastings as an efficient administrator. He even favoured the compilation of a digest of Hindu Law for the guidance of Civil Courts. Thus, he tried to correct the defects of the preceding judicial and revenue system without interfering with the local traditions and customs of the natives.


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Although, the judges of the Adalats were Englishmen but they were assisted by the Native law officers who expounded personal laws of parties and enlightened them with the traditions, customs and usages of the natives. The participation of native law officers in the judicial system infused confidence and trust among the native inhabitants about the impartiality of English judges. Thus, the Judicial Plan of 1772 paved foundation for sound judicial system in subsequent years. Prof. M. P. Jain said that the foundation of Anglo Indian Justice was laid down by Warren Hastings, over which the later administrators specially Lord Cornwallis built up the uper-structure of judicial administration. Since the working of the judicial scheme under the Plan of 1772 resulted into a considerable loss of revenue earnings of the Company's Government. Consequently, in 1773 the Court of Directors directed the Governor and Council in Calcutta, to withdraw Collectors from Districts. Obviously, this needed a fresh Plan which Warren Hastings introduced in 1774 to be known as the "System of Provincial Council." Judicial Plan of 1774 —The Abolition of the institution of collector in 1773 on the advice of the Court of Directors of the Company in England up-set the judicial arrangement of 1772 and a new Plan became an urgent need of the time. Warren Hastings prepared a new Plan on November 23, 1773 which was implemented in January, 1774. The new judicial reforms of Hastings can be discussed under the following three heads— I. Establishment of Provincial Council for Civil Justice—Under the Judicial Plan of 1774 the entire Diwani area of Bengal, Bihar and Orissa was divided into six divisions with headquarters at Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna. Each division consisted of several districts. A 'Provincial Council' consisting of five covenanted servants of the company was established in each of these divisions except Calcutta where a 'Committee of Revenue' was set up. These Councils supervised the revenue collection in the Division and heard appeals from the Mofussil Diwani Adalats from the districts within its territorial jurisdiction. Recall of Collector and Appointment of Diwan—The post of Collector having been abolished in 1773 now each district was placed, in charge of an Indian officer called the 'Diwan' or the 'Amil'. His main function was to look after the work of revenue


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collection in his district. He also presided over the Mofussil Diwani Adaiat of the District which was previously presided by the Collector. Appeals from Mofussil Diwani Adalats were to be taken to the Provincial Council, which in this 'Capacity was known as the Provincial Court of Appeal, the decision of the Provincial Court of Appeal (Provincial Council) was final in all cases upto the value of Rs. 1,0007- but if the value of the subject-matter of the suit exceeded this amount, a further appeal lay to the -Sadar Diwani Adalat. The Provincial Council also had original jurisdiction to decide all cases arising at the headquarters of the division, in the first instance. Thus, the Provincial Council had both, the original as well as the appellate jurisdiction over civil cases. It was also empowered to hear complaints against the head farmers, Naib Diwans, Zamindars and other officers of the Government. 2. Establishment of Board of Revenue at Calcutta for Revenue Administration—The head of the district, i.e., the Diwan was to collect revenue under the supervision of the Provincial Council. The Provinccial Councils were to supervise revenue collection in their respective divisions. They were further subjected to overall control and supervision of the Board of Revenue at Calcutta. 3. Establishment of the Court of Naib Nazim or Diwan for Criminal Justice—Under the Judicial Plan of 1774, the supervision of the Collector on the working of the Mofussil Fouzdari Adalats and that of the Governor and Council over the Sadar Fouzdari Adalat, came to an end. Now Sadar Fouzdari Adalat was shifted from Calcutta to Murshidabad and placed under the supervision and control of the Nawab; A new office of Haib Nazim was created who controlled the working of the Sadar Nizamat Adalat on behalf of the Nawab. Mohammad Raza Khan was appointed as Naib-Nazim. 10. Write a critical note on the Judicial Reforms of Lord

Or Discuss the reforms introduced by Lord Cornwallis through his judicial plan of 1790 and 1793. Or

Discuss the reforms introduced by Lord Corn wall is for 'the enforcement of Criminal Law in India. Or Explain the Adalat system under Lord Cornwallis.


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Ans. Judicial Reforms of Cornwalis—Cornwallis came to -India in 1786 as Governor-General and stayed here fill 1793. He introduced the reforms in the judicial systems in three stages, i.e., in 1787., l790 and 1793. Judicial Plan of 1790—The judicial plan of 1790 is concerned with the .reform of Criminal Law. Administration of criminal justice was in chaotic. position by this time. Both the substantive law and the machinery for administration of criminal justice neededurge.nl reforms. Under the scheme of 1790 the following courts were established for the administration of Criminal. Justice— 1. Establishment of Sadar Nizajna1 Adalart—The Sadar Nizamat Adalat consisted of Governor-General and the Council. They were to be helped by the Muslim law officers in ascertaining Muslim Criminal Law. The sadar Nizamat Adalat was to meet once a Week, The Sadar Nizamat Adalat was shifted to Calcutta. The nominal control of the Nawab was removed. Establishment of the Circuit Courts—The Mofnssil Fozdari Adalats were abolished. In their place, four courts of circuits were establhised. Bengal, Bihar and Orissa were divided into four divisions, i.e., Patna, Calcutta, Murshidabad and Dacca. In each of these divisions, a court of circuit would administer criminal justice acting as a moving court. The court would visit each district twice a year, and try the prisoners in the jails. It was assisted by the Muslim Law Officers, Kazis and Muftis. The Muslim law officers were assured of security of tenure of their offices. They could only be removed by the Governor-General in Council for incapacity and misconduct. When the Court of circuit did not agree with the Futwa proposed by the Muslim Law Officers or when the punishment was death or perpetual imprisonment, the case was to be submitted to the Sadar Nizamat Adalat for its decision. ' Establishment of the Courts of District Magistrates—The Collector in each district was to act as the magistrate also. The Collectors, acting as magistrates were to arrest persons accused of crimes. On receipt of a complaint on oath, the magistrate was to issue a warrant for the arrest of the accused, He was lo hold an 'enquiry and if a prim a facie case was made, accused was to be committed for trial to the Court of Circuit. If the offences were petty, the magistrate hi HIS elf would award the punishment. Except in the case of serious offences like murder, robbery, theft and house-breaking, the accused


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could be released on bail. He was to make reports every month to the Sadar Nizamat Adalat giving the details of the persons arrested and the orders passed,

It may be noted that sometimes the European British Subjects presented a serious problem. If they committed crimes, the Fozdari Adalat had no jurisdiction over them. They could only be prosecuted before the Supreme Court at Calcutta; But under the scheme of 1790, the magistrates were also appointed as justice of the peace. In this capacity they c mid arrest the European British Subjects on a complaint on oath. If the magistrate was satisfied on an enquiry that there were, grounds for trying the accused, the accused would be sent to Calcutta in custody. Under this scheme, Europeans who were not British Subjects were subject to the jurisdiction of the Courts of the Company.

The system created in 1790 worked fully well to a considerable extent but one great detect of the system was that the delay in visit of the Court of circuit would put the prisoners into unnecessary hardship. The Court of circuit visited each jail twice in a year. Very often, innocent people were unnecessarily in prison and others suffered imprisonment for a period longer than the one justified.

Judicial Plan of 1793—The judicial plan of 1793 introduced by Cornwallis had far-reaching effects on administration of justice in Bengal, Bihar and Orissa. This Scheme earned a name for Cornwallis, as a great reformer in administration of justice.

The changes brought about by the scheme of 1793 are as follows— (a) Reforms Regarding the Relation of Executive and Judiciary—(i) Separation of the Executive and Judiciary—Cornwallis wanted that the arbitrary powers of the Collector were to be curbed and the judiciary must act as the protector of the rights and properties of individuals against interference and encroachment by the officers of the Government. To attain (his end, the scheme of 1793 abolished the Mai Adalats and the powers of" these Courts were transferred to the Mofussil Diwani Adalats. The Collector was. entrusted with the exclusive function of the collection of revenue while administration of justice was exclusively entrusted to the Diwani Adalats. (ii) Control of Judiciary Over Executive—The scheme of 1793 provided that the members of the executive would be subject to the jurisdiction of the courts if they


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were guilty of the infringment of regulation, personal advancement and oppressive acts. The scheme ensured obedience to the regulations by the executive and this sought to prevent tyranny and oppression. This was a poineer step in establishing the principle of supremacy of law over the executive power. (iii) Liability of the Government for the Wrongs of its Servants—The scheme enabled the aggrieved individuals to bring suits in the Diwani Adalats both against the Government and the executive officers in question. The aim of these measures was to ensure to the people the uninterrupted enjoyment of the inestimable benefit of good laws duly administered. As a result of this scheme throughout Bengal, Bihar and Orissa, rule of law was sought to be restored. What the Supreme Courts did in the Presidency Towns, the Mofussil Diwani Adalats were enabled to do outside the Presidency Towns. (b) Reforms in the Administration of Civil Justice—The reform in the administration of civil justice consisted of reforms both in the structure of the Courts and also in the procedure to be followed by them— (ii) Reforms in the Structure of the Courts—The following reforms were made in the structure of the courts— 1. Diwani Adalats—The Mofussil Diwani Adalats were reconstituted; each district was to have Diwani Adalat and the cities, of Patna, Murshidabad and Dacca were also to have Diwani Adalat. Each Diwani Adalat was presided over by a covenanted civil servant of the Company. This Court consisted of three English covenanted servants of the Company; at least two would constitute the quorum. The Courts of appeal had the following functions— (a) It was a Court of Appeal against all the decisions of the Mofussil Diwani Adalats. Under the earlier system there could be no appeal against the decision of the Mofussil Diwani Adalats. Under the earlier system there could be no appeal against the decision of the Mofussil Diwani Adalat if the subject-matter of the dispute was valued below Rs. 1,000. But this scheme provided for an appeal to the Court of appeal irrespective of the value of the subject-matter of the dispute. (b) The Court of appeal had jurisdiction to try civil suits which were referred to it for trial either by the Government or by the Sadar Diwani Adalat.


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(c) The Court of appeal could also receive original suits or complaints over which a Mofussil Diwani Adalat refused to exercise jurisdiction and remand them to the Adalats, for trial and decision. (d) The Court of appeal acted also as a Court of superintendence to some extent as it could receive charges of corruption against the judges of the Mofussil Diwani Adalats and report such cases as well as cases of neglect of duty. 2. Sadar Diwani Adalats—Under the Scheme of 1793, the Sadar Diwani Adalat which consisted of the Governor-General and Council continued to be the highest Civil Court subject to appeals tq the King-in-Council when the subject-matter of the dispute was of the value of £ 5,000 or more. But one important reform introduced by the scheme was that Sadar Diwani Adalat was also constituted as a Court of Supervision and Inspection over the Mofussil Diwani Adalats so that administration of justice could be toned up. With this end in view the Sadar Diwani Adalat was given the following powers— (a) It could receive and try charges of corruption against the judges of the lower Courts. It could also order the Provincial Court of Appeal to try such charges if they were against the judges of Mofussil Diwani Adalat. (b) It could receive any original suit or complaint which was refused to be received by a Mofussil Diwani Adalat and direct it to determine the case according to law. (c) It could also direct the Court of appeals in the provinces to receive and proceed with appeals which such Courts had refused or omitted to entertain. 3. The Courts of Munsifs—The Mofussil Diwani Adalats being mostly situated in district places, the persons who sought justice had to travel to the district headquarters frem remote parts. Very often the're was no justice in small cases as it was very inconvenient for the parties to travel such long distances to seek redress in small matters. Further, there was overcrowding of work in the District Courts as that was the only Civil Court in the district. (iii) Reforms in the Procedure—The following reforms were made in the rules of court procedure— (a) Reforms of Mufussil Diwani Adalats—Certain rules of procedure were enacted for the observance of Diwani Adalats. The Court could not make a rule, order, proceeding or decree except on Court days and in open Court. A judge was prohibited


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from carrying on correspondence with the party regarding matters pending before him. A party to a dispute could make a representation to the Adalat in writing either personally or through an authorised representation, A period of limitation was also prescribed for civil litigations. (b) Abolition of the Court-Fees—Before this scheme, litigation was very costly not only because the litigants had to travel a longdistance and pay heavy fees to the Vakils. But also because there was a heavy Court-fee to be paid by the litigants. Cornwallis desired to abolish die Court-fees so that justice may be available to all. (c) The Fresh-Steps—The fresh steps presented a peculiar problem when they were residing beyond Calcutta. The peculiar position was thai they could avail themselves, of the jurisdiction of the Adalats against line local inhabitants in the provinces while they themselves were subject to the jurisdiction of the Adalats in the Mofussil They could easily realise their claims against the local inhabitants by availing them selves of the jurisdic lion of Divvani Adalats. (d) Reforms in the Administration of Criminal Justice—In accordance with the policy of separation of the executive from the judiciary the magisterial powers of the Collectors were taken over and transferred to the judges of the Mofussil Uiwani Adalats. The newly constituted magistrate could try and punish offences. The maximum punishment they could give was imprisonment upto 15 days or line upto Rs. 100. The courts of appeal of administration of civil justice and the Courts of circuit under the Scheme of 1790 were amalgamated and Courts- of appeal raid circuit were established. Each Court of appeal and circuit consisted of 3 English judges. They were to act as Courts of Circuits dividing themselves into 2 divisions and also as the Courts of Appeals over the decisions of the Moi'ussil Diwani Adalats, (e) Reforms in Legislative Methods—The regulations promulgated since the time of Warren Hastings were in. a loose and amorphous form. They were scattered and could not be found in any particular source book. To remedy these defects, Cornwallis introduced certain procedure methods. The changes introduced are as follows—


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Each regulation was to contain a preamble so that the purpose of the regulation could be clearly understood and stated. This also helped interpretation of the regulations by the Courts. Every regulation was to be drawn in a particular form having title and expressing its subject-matter in a connected manner. The regulation was to be divided into numbered sections and clauses. Proper original notes were to be inserted. The regulations enacted in each year were to be numbered, printed and published and were also to be recorded in the judicial department. Arrangements were also made for the translation of the regulations into Persian and Bengali so that the public could easily know the provisions of the regulations. (f) Reform hi the Regulation of Lcgal Profession—Now the Vakils were subject to the following rules— (a.) The Sadat Adalat was empowered to grant sanads to the pleaders who could plead the causes ofthe parties in the suits. (to) Vatils guilty of misconduct or incapacity could be dismissed and disqualified. The clients could sue the Vakils in the Courts for malpractices and fraud. (c) The fees were to be collected by the Courts and such fees were to be paid to the Vakils. Thus, extortion of excessive fees was prevented. (dj Arrangements were also made for the appointment of Government' pleaders to prosecute the suits, which were to be carried on at the public expense.. Native Law Officers—The native law officers belonging to the several Courts were to be appointed by the Governor-General-in-Council. Care was (o be taken to see that they were persons of great integrity and well versed in law. They enjoyed a security of tenure. They could only be removed as a result of disciplinary proceedings against them and there could lie an appeal to the Sadar Diwani Adalat against such punishment. A Critical Appreciation of the Scheme of 1793—The salient features of the reforms introduced by Cornwallis can be critically examined as follows— 1. He separated to considerable extent judiciary from the executive.


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2. The administration including the Government was made subject to the jurisdiction of the Civil Courts and thus the foundation of rule of law was laid down in the country. The efficiency and the integrity of the judiciary was sought to be maintained by a graded system of supervision and appeals. The Regulations prescribed clear-cut procedure for the/observance of the various Courts. A system of graded appeals was provided on the civil side. 6. A precise and concise form was given to the regulations which made knowledge of law available to the professionals and the public. Conclusion- to sum up it can be said that with fairness, impartiality and efficiency as aims, Cornwallis provided an elaborate and a complicated machinery for administration of justice. Q.11 What were the two rival sets of judicial institutions before the passing of the Indian High Court Act of 1861? How do they differ from each other? State briefly the changes affected by the High Court Act, 1861. Ans. Judicial System in India Ensiling Before, 1861—Prior to the passing of the Indian High Courts Act, 1861., there were two rival sets of judicial institutions in India, namely (he Crown's Courts and the Company Courts. The Supreme Courts established in the Presidency towns of Calcutta, Madras and Bombay were the courts of the British Crown while the Adalats established in Ihe Mofiissil areas were Che courts of the East India Company. The courts had two different sets of organizations jurisdiction and powers. The functioning of courts in the Presidency towns was differed I from that of the Mofussils of which they were the capitals. The existence of two parallel sets of courts viz the Supreme Court and the Sadar Adalats in the Presidency towns created great confusion and uncertainty about their respective jurisdictions, Distinction between (he Crown's Court and Company's Court—The two sets of Courts differ in the following respects—


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1. The Supreme Court consisted of professional lawyers as Judges bill the Judges of the Company's Adalate were mostly Jay persons without any professional or legal experience. 2. The Judges appointed in the Supreme Court held office during Crown's pleasure whereas the Judges appointed in Company's Adalats held office during Company's pleasure. 3. There was no hierarchy of courts in Crown's Court but there was a regular hierarchy of civil arid criminal courts in the Company's judicial arrangement. 4. The laws applied by the two sets of court were different. The Supreme Court applied English law in deciding civil and criminal cases. The Company's Courts applied native laws for deciding the cases relating to inheritance, succession and contract etc. 5. The Supreme Court mostly followed English law of evidence as far as possible whereas the Company's Courts mostly followed the customary Jaw of evidence as derived from Hedaya and applied Anglo-Mohammedan Jaw in deciding criminal cases. Thus, it is clear that there existed two different and parallel judicial systems which differed fundamentally from each other; in character and nature. This system continued upto 1857 when Indian freedom struggle took place in 1858. In 1858 Govt. of India was taken over by Crown who in 1861 united two judicial systems into one by enacting Indian High Courts Act, 1861. Necessity for Passing the Indian High Court Act, J861—The uncertainty about the jurisdiction and the law applicable by these two sets of courts created conflict and confusion. Therefore, it was necessary to merge these courts into one single judicial system. In 1829, Sir Charles E. Grey, the Chief Justice of the Supreme Court at Calcutta emphasized the need for the fusion of these two rival courts functoning in the Presidency towns. The need for the amalgamation of these courts was further highlighted by Sir Metcalfe. The process of unification was, however, completed in three distinct phases viz,— (i) The first step towards amalgamation of Crown's Courts and the Company's Court into a single judicial system, a Central Legislative Council was established in India


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under the Charter Act of 1833. The laws and regulations passed by the Council were equally binding on ail the courts whether established by the Crown or the Company. (ii) In the second phase of unification of the Supreme Court and the Sadar Adalats, the Law Commission stressed on the need for a codified procedural law before such fusion. The Bill for the fusion of these two sets of courts was finally introduced by Sir Charles Wore! in 1853. Consequently, a codified civil procedure was enacted in 1859 and the Penal Code was enacted in 1860. (iii) In the third stage, the East Indian Company was dissolved by the Crown's Act of 1858 and the responsibility of the entire government of India, passed on to the British Crown. Provisions of Indian High Courts Act, 1861—Finally, the Indian High Courts Act was passed by the British Parliament on August 16, 1 861 by which the Supreme Court and the Sadar Adalats of the Presidency towns were merged together to be known as the High Court of Judicature at Calcutta, Madras and Bombay. 1. Constitution of High Court—Each High Court was to consist of a Chief Justice and not more than fifteen poise Judges, of whom not less than one-third were to be barristers of minimum five years' standing and one-third were to be members of the Company's Civil Service having not less than ten years standing including a minimum experience of three years as a Zila Judge. The remaining Judges could be either from the Bar or from the Civil Service i.e., persons who had practised as pleaders in the Sadar Adalat or the Supreme Court for at least ten years or persons who had held judicial office not inferior to that of Principal Sadar Ameen or a Judge of a Small Cause Court for not less than five years. Q.12 Why was the Federal Court established in India? Explain its Constitution, Jurisdiction and Significance in the Indian Legal History. Ans. Why was the Federal Court Established in India?— Government of India Act, 1935 established federal form of Government of India. Therefore, it necessitated the establishment of a Federal Court. Federal Court is regarded as an essential element in federal constitution because it is regarded as the interpreter and guardian of the Constitution as well as court for the determination of disputes arising among constituent units and the federation. On 1st October, 1937 the Federal Court was


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formally inaugurated at New Delhi. Thus, Government of India Act, 1935 provided for the establishment of a Federal Court for India at Delhi. The Court was to act as the interpreter and guardian of the Constitution and as, a tribunal for the determination of disputes between the Constituent units of the Federation. Thus, it was to act as an umpire in the constitutional disputes arising between the Federal Government and its component units regarding their spheres of jurisdiction. Constitution of the Federal Court of India—The Federal Court consisted of a Chief Justice and not more than six puisne judges. All the judges were to be appointed by His Majesty and to remain in office till they attained the age of 65. A judge of the Fecjeral Court could be removed from office even earlier on the ground of misbehaviour or infirmity of mind if the Judicial Committee of the Privy Council, on a reference made to them by His Majesty, reported his removal. To ensure the judicial independence of the Federal Court, the salaries and allowances of the judges were made non-votable by the Legislature and were to be fixed by His Majesty in Council. The emoluments and the conditions of service of the judges could not be varied to their disadvantage during their term of office. Qualifications for the Judges of the Federal Court—No person should be appointed as a Judge of the Federal Court unless he passed the following qualifications— (a) He had served as a Judge of High Court in British India or a Federated State for at least five years; or (b) He was a Barrister of England or Northern Ireland or a Member of the Faculty of Advocates of Scotland, of at least ten-year's standing; or (c) He had been a Pleader of a High Court in British India or a federated State or of two or more such Courts in succession for at least ten years. For appointment as a Chief Justice of Federal Court, it was necessary that he should be a Barrister or Pleader of at least fifteen year's standing. It must be noted that the qualification for Judgeship of the Federal Court were deliberately so kept in order to exclude members of Indian Civil Service from this august office. Jurisdiction of the Federal Court—The Federal Court of India had three types of jurisdiction, namely— I. Original Jurisdiction—The original jurisdiction of the Federal Court extended to all the disputes arising between the Federation and any of its units or between two or


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more component units of the Federation, if it involved any question of law or fact on which the existence of a legal right depended. If, however, any federated State was a party to a dispute, then the original jurisdiction of the Federal Court did not extend to it, unless— (i) The dispute related to the interpretation of the Act or order in Council or it related to the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession, or (ii) It related to administration of a federal law in the State; or (ii) It related to an arrangement made after the establishment of the Federation with the approval of His Majesty's representative for the exercise of the functions of the Crown in its relations with Indian States; being an agreement which expressly provided that the jurisdiction of the Federal Court would extend to such a dispute. 2. Appellate Jurisdiction—The appellate jurisdiction of the Federial Court extended to appeals from any judgment or decree or final order of the High Court in British India, if the Court certified that the case involved a substantial question of law as to interpretation of the Government of India Act, 1935 or any order in Council made thereunder. 1n such cases, no appeal lay directly to the Privy Council with or without special leave. The appellate jurisdiction of the Federal Court also extended to some civil cases where the claim or subject-matter in dispute was not less than Rs. 50,000 or such other sum not less than Rs. 15,000. Finally, an appeal on any other case could also be brought to the Federal Court by special leave. These provisions for appeal to the Federal Court in civil cases were inapplicable to the Federal States. The Federal Court had no appellate jurisdiction over criminal cases. 3. Advisory Jurisdiction—The Advisory jurisdiction of the Federal Court extended to such questions as were referred to it by the Governor-General acting in his discretion for its opinion. The questions for opinion invariably involved interpretation, of the Constitution. The Governor-General was, however, not bound by the advice tendered to him by the Federal Court. The Federal Court possessed extensive powers to exercise of its judicial functions. The court could summon and examine witnesses and


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order production of any document. It could punish for its own contempt and could make rules for regulating its own procedure and legal practice at bar. Appeals to the Privy Council—The establishment of Federal Court in India did not affect the final appellate jurisdiction of the Privy Council. In constitutional cases coming under the original jurisdiction of the Federal Court, an appeal still lay to the Judicial Committee of the Privy Council as a matter of right and without the leave of the Federal Court. In other cases, however, an appeal lay to the Privy Council by special leave. Importance of the Federal Court—The importance of Federal Court in the Constitutional History of India lies in the fact that it was the first . Federal institution established under the Govt. of India Act, 1935. As a matter of fact, it was a first constitutional court in the sense that its primary function was to interpret the Constitutional provisions. This Court inspired a high degree of confidence in the minds of public long as India maintained ties with the Privy Council, the Federal Court, was regarded by many as intermediate appellate Court, and therefore, was denied the position of prominence it merited. Nonetheless the Federal Court contributed significantly to India's Constitutional development and when it yielded to the Supreme Court of India on 26th Jan, 1950, it passed to its successor a tradition of the highest standard of indpendence, integrity and impartiality. Conclusion—From all. that what is said above it can rightly be concluded that although the Federal Court's period of life, of only twelve years, was very short yet it did some useful work as regards the evolution of federal constitutional jurisprudence in the country. Some of the principles of constitutional interpretation which this Court laid down in relation to the Government of India Act, 1935, were later adopted by the Supreme Court in relation to the interpretation of the present Constitution. But, above all, the Federal Court occupies a significant place in the Legal History of India as the predecessor of the present day Supreme Court of India. In fact, on January 26, 1950, the Federal Court itself was converted into the Supreme Court and all the Federal Court Judges on that day became the Judges of the Supreme Court. There is thus a historic continuity between the Federal Court and the Supreme Court of India.


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Q. 13. How Suprem Court of India incorporated the jurisdiction of the privy Council and the Federal Court? Illustrate. Or Explain in brief the establishment, constitution and jurisdiction of Supreme Court of India. Ans. Establishment of Supreme Court—According to Art. 124(1) of the Constitution, the Supreme Court of India as the highest court of the land was established on 26th Jan., 1950 in New Delhi. The position of the Supreme Court with reference to its powers, appellate jurisdiction and as a guardian of the Constitution is similar to the Federal Court of India established by the Act of 1935. It is observed in the Report of the Joint Parliamentary Committee of Indian Reforms, Vol. I, Part I that "a Federal Court is an essential element in a Federal Constitution. It is at once the interpreter and' guardian of he Constitution and the tribunal for the determination of dispute between the constituent units pf the Federation." The Supreme Court of India exercises original and exclusive jurisdiction to determine, the justifiable disputes between the Union and the State or States: or between the States inter se. The Supreme Court is, now, the final appellate tribunaj of India. While acting as a guardian of the Constitution, the Supreme Court can declare Executive acts unconstitutional. The Court has the power to declare invalid any enactment which transgresses fundamental rights or is contrary to some other constitutional provisions. Constitution of the Supreme Court—The Supreme Court consists of a Chief Justice and seven other Judges. The Parliament may by law, increase the number of Judges. Now the number of judges in the Supreme Court has gone upto 26 including the Chief Justice of India. Under this Power the President has now increased the number of judges to 26 including the Chief Justice. Every Judge of the Supreme Court is appointed by th" President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Court Judges as he may deem necessary. A Judge is to hold office upto sixty- five years of age. A Judge of the Supreme Court must have been for at least five years a Judge of a High Court, or an advocate of at least ten years' standing or, is in the opinion of the President, a distinguished jurist. A Judge of the Supreme Court must be a citizen of India. He can be removed from his


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office only on the ground of proved misbehaviour or incapacity and by an order of the President passed after an address by each House of Parliament. Jurisdiction of the Supreme Court—Supreme Court has the following types of jurisdiction— 1. Original Jurisdiction—According to Art. 131 of the Constitution, the Supreme Court has an exclusive jurisdiction in cases arising between (a) the Centre and the constituent States, i.e., the Union and one or more States or (b) the Union and any State or States on one side and one or more States on the other side, or (c) two or more States, provided the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. The Supreme Court shall have no original jurisdiction over cases involving ambassador and public ministers or treaties nor will entertain suits to which citizens are a party. Basu observes that, "it is not a Court of ordinary original jurisdiction in all matters and between all parties." Art. 32 of the Constitution confers original jurisdiction on the Supreme Court to enforce fundamental rights even though petitioners in such cases are individuals. Under Art. 32 a person can directly go to the Supreme Court for the enforcement of his fundamental rights. Thus, Supreme Court is the protector and guardian of the People's fundamental rights. 2. Appellate Civil Jurisdiction—According to Art. 132 of the Constitution—(a) An appeal lies to the Supreme Court from any judgment, decree or final order of a High Court whether in a civil (or criminal) or other proceeding if the High Court certifies that the case involves a substantial question as to the interpretation of the Constitution (b) If the High Court refuses to grant such a certificate the Supreme Court itself may grant special leave to appeal if it is satisfied that a substantial question of law as to the interpretation of the Constitution is involved, (c) Appeal lies to the Supreme Court from any judgment, decree, or final order of a High Court, in a civil proceeding, ff the High Court certifies that the value of the subject-matter involved in the dispute is not less than twenty thousand rupees; and where the judgment, decree or final order appealed from the decision of the Court immediately below, if the High Court further certifies that the appeal involves some substantial question of law. (d) In cases where the conditions in (c) above are not fulfilled, the appeal lies, if the High Court certifies, that the case is a fit one for appeal to the Supreme Court.


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3. Criminal Jurisdiction of the Supreme Court—An appeal in criminal cases lies to the Supreme Court from a High Court, if the latter— (i) Has in appeal, reversed an order of acquittal and sentenced the accused to death; (ii) Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused and sentenced him to death; or (iii) Certifies that the case is a fit one for appeal to the Supreme Court. 4. Provision of "Special Leave to Appeal"—Art. 136(i) confers a discretion on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order "in any cause or matter passed or made by any Court or tribunal in the territory of India." The Supreme Court thus enjoys much wider powers in relation to appeal than what the Privy Council used to enjoy. 5. Advisory Jurisdiction—Under Art. 143 the President is empowered to obtain the opinion of the Supreme Court on any question of law or fact which is of public importance. Under Art. 143 (2) if the President refers to the Supreme Court matters which are excluded from its jurisdiction under the proviso to Art. 131 the Court shall be bound to give its opinion thereon. 6. Federal Court's Jurisdiction—Art. 135 of Indian Constitution provides that the Supreme Court shallexercise the jurisdiction of the Federal Court (established under the Government of India Act, 1935) in respect of the cases not covered by Art. 133 and 134. 7. A Court of Record—According to Art. 129 the Supreme Court is also a Court of Record as such-has power to punish for its contempt. 8. Law Declared by the Supreme Court is Binding on Subordinate Courts—The law declared by the Supreme Court shall be binding on all the courts subordinate thereto. It was observed in Kishori Lai V. Devi Prasad, |A.I.R. 1950 Pat. 50(61)(F.B.)| that "It is the ratio decidendi of a Supreme Court judgment which is absolutely binding on all subordinate courts. Obiter dicta, though entitled to great respect, is not absolutely binding." The Supreme Court is not bound by its own decision and may reverse a previous decision specially on constitutional question, but the Court will surely be slow to do so unless such previous decision appears to be obviously erroneous.


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9. Power to Review the Previous Decisions—Under Art. 137 the Supreme Court has power to review its judgment or order on one or more of the following three grounds—(i) discovery of new and important matter of evidence, (ii) mistake or error apparent on the face of the record, and (iii) any other sufficient reason. 10. Power to Issue Writs—According to Art. 32 (1) of the Constitution, the Supreme Court is empowered to issue directions, orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of the fundamental rights. The power of issuing writs etc. is subject to regulation by Parliament. 11. Ancilliary Powers—Parliament may by law, confer such supplementary powers on the Supreme Court as may appear necessary or desirable to enable the court to exercise effectively the jurisdiction conferred upon it by the Constitution. S. 527 of the Code of Criminal Procedure , empowers the Supreme Court to transfer a criminal case or appeal from one High Court to another, "whenever it is made to appear to the Supreme Court that an order under this section is expedient in the ends of justice." But such supplementary powers should not be inconsistent with any of the provisions of the Constitution. How Supreme Court of India Incorporated the Jurisdiction of the Privy Council and Federal Court?—With the achievement of Independence, it would have been highly anomalous to maintain the system of appeals to the Privy Council, otherwise it would have appeared to diminish the full independence of India. It was. therefore, inevitable that an Independent India should abolish appeals to the Privy Council, and create. instead, a national court of its own as the ultimate appeallate court from the High Courts. This happened on January 26, 1950, when the Supreme Court of India came into existence under the new Constitution. But during the interim period from 1947 to 1950, following preliminary steps had to be taken with a view to eventual abolition of appeals to the Privy Council. (i) The first step in this direction was taken by the Central Legislature in 1948 when it enacted the Federal Court Act. I of 1948 to provide for the enlargement of the appellate jurisdiction of the Federal Court so as to embrace civil appeals from the High Courts and, correspondingly, to restrict and direct appeals to the Privy Council.


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The Act of 1948 did not completely abolish appeals to the Privy Council. It did not touch appeals in criminal cases. Appeals to the Privy Council in civil or constitutional cases were still possible by leave of the Federal Court or of the King-in-Council. This Act, therefore, did not completely sever India's ties with the Privy Council. (ii) Since the Constitution of India was due to come into force on January 26, 1950, hence it was felt that steps should be taken to abolish the Privy Council's jurisdiction well before the crucial date. Again it was felt that the Privy Council should not have jurisdiction even to deal with and dispose of appeals and petitions which might remain pending before it on that date. That is why Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act on the 24th September, 1949, to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending appeals so that there might be minimum trouble and inconvenience at the date of the commencement of the new Constitution, and the process of transition might be smoothened. The Act came into force on the 10th Octber, 1949. From that date as an interim measure, the Federal Court was to be invested with the same jurisdiction to entertain and dispose of appeals and petition from the judgments, decrees or orders of the High Courts as the King-in-Council had at the time. The Act abolished the jurisdiction of His Majesty-in-Council to entertain appeals and petitions from any judgment, decree or order of any court or tribunal in India, including appeals and petitions in criminal matters, whether the Privy Council exercised such jurisdiction by virtue of the royal prerogative or otherwise. All pending appeals, excepting those which the Privy Council could dispose of before the inauguration of the new Constitution, were to stand transferred to the Federal Court. The last appeal from India was disposed of by the Privy Council on December 15, 1949, and with this came to an end India's 200 year old connection with the Privy Council. In this way, on January 26, 1950, the Federal Court gave way to the Supreme Court under the new Constitution, and thus began an exciting new era in Indian Legal History. The Supreme Court was inaugurated on January 28, 1950 and is regarded as the highest court in the land. Thus, the existing Supreme Court assumed the jurisdiction both of the Privy Council as well as that of Federal Court.


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Q. 14 Trace briefly the history of appeals to the Privy Council in and Criminal matters . Or Trace the history of appeals to Privy Council from India and estimate its contribution to the growth of law in India. Ans. The jurisdiction of Privy Council to hear appeals was based on the inherent prerogative right of Sovereign, as to ensure due justice. The King of England was regarded as the fountain of administration of justice and to preserve the due course of procedure. Formerly, the right of appeal from the Dominion's Courts to the King-in-Council was as a matter of grace. But the subsequent statutes conferred it as a matter of right and could not be regarded as a matter of grace. But there were certain appeals for preferring for which the specific permission was necessary from the Privy Council. These appeals came to be known as "Appeals by Special Leave." Thus, there were two kinds of appeals which could be preferred to Privy Council from India — (i) Appeals as a matter of rights, (ii) Appeals by way of Special leave of Privy Council. Appeals from India — The following appeals were made from different Indian courts to Privy Council — (i) Appeals From the Mayor's Court — The Charter of 1726 introduced Mayor's Courts in all the three Presidency Towns of the Company's settlement. The Mayor's Court were Crown's Courts as they were established by the British King. Under a provision the- Charter of 1726, granted for the first time a right of appeal from the judgements of the Mayor's Court, first to the Governors-in-Council and then to the Privy Council, where the amount in dispute exceeded 1,000 pagodas or Rs. 4,000. (ii) Appeals From Supreme Court of Judicature at Calcutta — The Regulating Act of 1773 and the subsequent Charter of 1774, which established the Supreme Court at Calcutta give the right of appeal from its decisions to the King-in-Council. An appeal also could lie from the decisions of the Recorder's Court, where the value of the suit was over 1,000 pagodas in the King-in-Council. The Council was empowered to refuse-or admit the appeal and to reform, correct or vary such decision, according to the Royal pleasure. The person, who wanted to appeal was required to move the Supreme Court within six months of the pronouncing of the judgment. The Supreme


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Court was given full pronouncing of the judgement. The Supreme Court was given full discretion in the matter of acceptance or rejection of appeals. Provision was also made for moving an application for special leave to appeal in the Privy Council. (iii) Appeal From Madras Supreme Court—The Charter of 1801 which established the Supreme Court at Madras, provided for a right of appeal to the Privy Council. Ah Appeal could be taken only if the value of suit was more than 1,000 pagodas. (iv) Appeals From Bombay Supreme Court—A Supreme Court was established in Bombay in 1823 and provision was made for the taking of appeals to the Privy Council. The conditions of appeals were the same as in the case of Madras and Calcutta except the appeal was to be taken only if the amount of the suit was more than 3,000 Bombay rupees. (v) Appeals From Sadar Diwani Adalat in Bengal-—(a) The Act of Settlement of 1781 provided for the taking of appeals from the decisions of the Sadar Diwani Adalat at Calcutta to the King-in-Council in cases where the amount involved in the dispute exceeded £ 5,000. No rules, however, were prescribed to regulate such appeals by the Act. (b) By the Regulation of 1797, the Privy Council was empowered to hear appeals in civil suit from the decisions of the Sadar Diwani Adalat, where the amount of the suit exceeded Rs. 50,000 inclusive of the cost. The appeal was to lie within six months after the decisions of Sadar Diwani Adalat. (vi) Appeals From Sadar Diwani Adalat at Madras and Bombay in 1818—In 1818 the appeals from the decisions of the Sadar Diwani Adalat established at Madras in 1802, could lie to the Privy Council, on the same conditions as in the case of Bengal; No pecuniary limit was fixed. Appeals could lie even in those cases where the amount involved was less than Rs. 50,000. In 1818, appeals could lie to the Privy Council from the decisions of the Sadar Diwani Adalat at Bombay. The value of the suit must not be less than Rs. 5,000. But in the same year this pecuniary limit was removed. The Eiphinstone Code of 1872 made fresh provisions to make appeals to the Privy Council. These provisions continued upto 1862 when High Courts superseded the Supreme Courts, Sadar Diwani Adalat and Sadar Nizamat Adalat.


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Besides the above appeals, an aggrieved person had a right to appeal to the Privy Council from the different Acts, i.e.;— Right of Appeal under Civil Procedure Code, 1908—The following were the provisions provided in the Civil Procedure Code, 1908, to appeal to the Privy Council— S. 109 provided that an appeal would lie to His Majesty-in-Council from any decree or final order passed in appeal by a High Court or by any other court of final appellate jurisdiction from any decree or final order passed by a High Court in the exercise of original civil jurisdiction, and from any decree or order when the case was certified to be a fit one for appeal to His Majesty-in-Council. S. 110 provided that in all cases of appeal the value of the suit must be Rs. 10,000 or upwards, or the decree or final order must involve, directly or indirectly, some claim or question respecting to property of like value, and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial questions of law. S. 1ll provided that no appeal would lie to the King-in-Council from the decree or order of one Judge of a High Court, or one Judge of a Division Court, or of two or more Judges of such High Court, where such Judges were equally divided in opinion, etc. The provision of S. 112 and various rules or Order 48, C.P.C. provided for a right of appeal to the King-in-Council. 1. Right of Appeal in Criminal Cases—In criminal cases, an appeal could lie to the King-in-Council from the decision of the High Court where it was shown that injustice of a serious and substantial character has ooccurred and it was not a mere mistake on the part of the Court below. Nor did the Judicial Committee interfere merely because they themselves would have taken a different view of evidence admitted. Procedural errors so grave which warrant interference, e.g., wherein deprived the accused of a constitutional or statutory right to be tried by a jury, or by some particular tribunal, or it might have been carried to such an extent as to cause the outcome of the proceedings to be deemed as contrary to the fundamental principle of justice. Appeals would lie only from a judgment of the High Court in its original


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criminal jurisdiction, or on a point of law reserved for the High Court where the High Court declared it fit for the appeal. 2. Right of Appeal under Criminal Procedure Code, 1898—S. 411-A of the Criminal Procedure Code, 1898, contained the necessary provisions for the appeal to the Privy Council. The provisions which regulated appeals to the Privy Council from the High Court were "as a matter of right." They did not in any way bar, abrogate or curtail the full and unqualified exercise of His Majesty's pleasure in receiving or rejecing appeals to His Majesty-in-Council, both in Civil and Criminal cases. The King-in-Council could grant special leave to appeal in case not falling within the above provisions. It was King's prerogative which was left untouched by various Acts and Charters. 3. Right of Appeal under the Government of India Act, 1935—Appeals from the Federal Court to the Privy Council lay under the following circumstances— (a) Appeals from the Judgment of the Federal Court exercising its original jurisdiction. (b) Appeals in any other cases, by leave of the Federal Court to His Majesty-in-Council. Abolition of the Privy Council's Jurisdiction in 1949—On 24th September, 1949 the Abolition of Privy Council Jurisdiction Act, 1949, was passed to abolish the appellate jurisdiction of the Privy Council. The Privy Council decided the appeals which were pending before it. The Federal Court was, as an interim measure, invested with the same jurisdiction to entertain and dispose of appeals and petitions from the judgments, decrees or order of all High Courts in India as His Majesty-in-Council had at present. Contribution of the Privy Council—The Privy Council made unique contribution to the development of law in India. It consisted of Judges having legal learning and judicial experience. The Privy Council always insisted and maintained the highest standards of justice and judicial procedure, administered an efficient and impartial justice, and recognised the noble spirit of law. It formed a strong link between India and England so far as the Common Law was concerned. It gave to* this country the English principles of law which are the basis of many Indian enactments. In the words


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of Prof. M.P. Jain, "In the days when the confusion in the field of substantive law was great, and the legislative bodies settled them, moulded and shaped them. The Judicial Committee came to be looked upon by the Indians with great respect." It may be noted that its decisions were always masterly and they form even today the fountain source of law in India. Its decisions enriched the Indian Jurisprudence in many respects. Privy Council rendered notable judgments in the field of the statute 1 aw and personal laws. It contributed much to the evolution of the commercial 1 aw in India. Its interference in the criminal sphere was very benevolent. Though it interfered very rarely and only under special circumstance, yet whenever it did, it upheld the principle of natural justice and fostered the administration of impartial justice. Dr. Tek Chand admired the role of Privy Council in a very befitting and illustrious manner as—'The Privy Council unrevealed the mysteries of Hindu Law, it enunciated the principles of Mohammedan Law, and formulated with clarity the customs which were prevalent in this country. Their Lordships of the Privy Council have, from time to time, elucidated the various Indian laws with absolutely detached mind. They have laid down the principles on which the judicial administration of the country was based. No doubt there have been lapses and mistakes occasionally, but on the whole, the Privy Council has been a great unifying factor and on many occasions has reminded the Courts of the country of those fundamental principles of law on which the administration of justice in criminal matters is based. Privy Council deserves al! the praise and we have every right to feel grateful to this historic institution which has helped in establishing a sound legal system in India. Conclusion—We can conclude the contribution of Privy Council in the words of Dr. K. M. Munshi, "Privy Council has been a great unifying force and for us (Indians) it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our Constitution." Q. 15. Trace briefly the history of writ jurisdiction in India. Or What do you understand by the prerogative writs? Describe the history of their starting and issuing in India.


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And. The Meaning and Origin of the Prerogative Writs in England—According to Halsbury, "The common law regards the King as the source or fountain of justice and certain ancient remedial processes of an extra-ordinary nature which are known as prerogative writs, have from the earliest time issued from the Court of King's Bench in which the Sovereign was always in contemplation of law. The prerogative writs were issued only upon cause shown, as distinguished from the original or judicial writs which commence suits between party and party and which issue as a course. The Court of King's Bench retained all the jurisdiction of the Curia Regis in so far as it was not distributed among the courts and this jurisdiction, including the granting of the prerogative remedies is now under the Supreme Court of Judicature (Consolidation) Act, 1925................ is vested in the High Court of Justice." History of Prerogative Writs in British India—The provision for the issue of the prerogative writs was made for the first time by the Regulating Act of 1773 and has been henceforth continuing. The writ jurisdiction in India may be studied under two headings— 1. History of Writ Jurisdiction in India Before, 1950—The provision for the issue of the prerogative writs was made for the first time by the Regulating Act of 1773 and has been henceforth continuing. The writ jurisdiction in India may be studied under two headings— (i) Supreme Court of Judicature at Calcutta—The Supreme Court of Calcutta was vested with the power to issue prerogative writs. The clause 4 of the Charter of 1774 provided in this connection—" And it is our further will that the paid Chief Justice............... to have such jurisdiction and authority as our Justices of our Court of King's Bench have and may lawfully exercise within that part of Great Britain called England by the Common law thereof." Clause 21 of the same Charter further provided that "the Court of Requests and the Court of Quarter Sessions established at Fort William and the Justices, Sheriffs and Magistrates appointed for the said disctricts were made subject to the order and control of the Supreme Court in such short manner and form as the inferior Courts and Magistrate of and in England were by law, subject to the order and control of the Court of King's Bench and to that end the Supreme Court was empowered to issue writ of Mandamus,


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Certiorari, Pro-edendo or Error to be directed to such Court or Magistrates." This power was given to the Supreme Court so that it could effectively control the subordinate courts and authorities of the Company engaged in the administration of justice in Bengal, Bihar and Orissa. (ii) Under the High Court Act, 1861—S. 9 of the High Court Act provided that the High Courts shall have and exercise all jurisdictions and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts. By virtue of this the High Courts established at the towns of Calcutta, Bombay and Madras inherited the powers of the defunct Supreme Court to issue the writs ,of Mandamus, Certiorari, Habeas Corpus, etc. The Government of India Act, 1915 and the Government of India Act, 1935 also reproduced the same provision regarding the powers of the High Courts to issue various writs. However, the power to issue writs of Mandamus and Habeas Corpus was taken away by the legislature enactments. In place of such power the three Presidency High Courts were allowed to issue orders under S. 45 of the Specific Relief Act and S. 491 of the Criminal Procedure Code, respectively. As such the High Courts of three Presidency Towns continued to enjoy the powers to issue the Common Law writs of Certiorari, Prohibition and Quo Warranto and their powers in this respect were not abolished by legislative enactments. 2. History of Writ Jurisdiction in India After, 1950—Under a democratic set up, the declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is in the fitness of things that our Constitution makers made provisions for an effective remedy of writs under Articles 32 and 226 of the Constitution for the enforcement of these rights— (i) The Supreme Court—Clause 2 of Art. 32 of the Constitution of India empowers the Supreme Court to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto, certiorari, whichsover may be appropriate for the enforcement of any of the fundamental rights guaranteed by Part HI of the Constitution. Clause 1. of the same Article provided that the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights is guaranteed for no other purpose whatsoever it may be. The powers to issue the writs are a discretionary power of the Supreme Court.


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(ii) The High Court—Clause 1. of Art. 226, of the Constitution of India empowers every High Court in India to issue to any person or authority including in appropriate cases any Government, within the territories in relation to which it exercises jurisdiction, directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warrantor and certiorari or any of them for the enforcement of the fundamental rights, and for certain other purposes. The power the Supreme Court. The power of the High Court to issue / than that of the Supreme Court. As the High Court is en' orders or directions for certain other purposes also be fundamental rights. Under Art. 226 of the Constitution the High after ascertaining that the aggrieved party has a legal right infringed or only after a finding that the entitling him to any of the writs which has bee infringed. Q. 16 What is Codification ? Why was codification of laws essential in the 19th Century in India ? Explain. Ans. What is Codification ? — Codification means the conversion of all laws into a written and systematically arranged code. This is the only method by which (i) Law is made known both to the administrators of justice and the people, (ii) To remove the uncertainty of law, (iii) To check the introduction of the technical rules of English law, (iv) To avoid the evils of judicial legislation, and (v) To preserve the custom suited to the people of the country. Why was Codification of Laws Essential in the 19th Century?-The codification of laws became necessary in the 19th century due to the following reasons — 1. Provisions of Personal Laws were Silent on Certain Points — The Hindu and Mohammedan Law-givers did not deal with certain branches of law, and further, they were silent on certain questions of law. In such cases, the doctrine of Justice, equity and good conscience was applied, but this doctrine instead of reducing the evils of uncertainty of law, increased them by resorting to judicial legislation. 2. Independence of Tribunals From Each Other — The existence of different tribunals independent of each other further increased the uncertainly. In the opinion of Lord Macaulay, the decisions of different courts rendered "the law not only bulky, but uncertain and contradictory." Each of the Chief Courts,


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established by the Crown and the Company, '' is perfectly independent of the others. Every one of them is at liberty to put its own construction of the law; and it is not to be expected that they will always adopt the same construction. Under so inconvenient a System there will inevitably be, in the course of a few years, a large collection of decisions diametrically opposed to each other and all of equal authority." 3. Existence of Different Statute Laws—The existence of different statute laws was also a great cause of uncertainty. They were : (i) English statute law as it existed in 1726; (ii) English statute law as expressly extended to India after 1726, (iii) Regulations of the Governor-General-in-Council from 1793 to 1834, (iv) Regulations of the Governor in Council of Madras from 1802 to 1834, (v) Regulations of the Bombay Code from 1827 to 1834; and (vi) The Acts of the Indian. Legislature passed under the authority of the Charter Act of 1833. 4. No Uniform Criminal Law Existed—In the field of criminal law,, the systems of penal law in Bengal, Madras and Bombay Provinces, and in the: Presidency-towns, differed from each other.. None of the systems could furnish even the rudiments of a good Code. 5. Uncertainty of Law of Evidence—The law relating to evidence also was in a state of great uncertainty. Same was the position of the law of limitation. As regards civil procedure, prior to 1859, there were nine different systems simultaneously in force in Bengal. Macaulay was a staunch supporter of any project to apply the principles of Bentham to the heterogeneous laws of India. On July 10, 1833, Macaulay demonstrated the necessity and practicability of codification during the course of debate on Charter Bill of 1833 and said "that no country ever stood so much in need of a code of laws as India, and...............that there never was a country in which the want might so easily be supplied.........,. in India, now there are several systems of law widely differing from each other, built co-existing and co = equal .... we have now in our Eastern Empire, Hindu Law, Mohammedan Law, Parsee law, English law perpetually mingling with each other and disturbing each other, varying with the person, varying with the place.... It is time that the Magistrate should know what law he is to administer, that the subject should know under what law he is to live.... 1 believe there is no country in which that great benefit can more easily be conferred.'


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Consequently, the Charter Act, 1833 was passed by British Parliament. The said Act directed the Governor-General-in-Council to purpose of inquiring into the Jurisdiction, powers and, rules of the existing courts and police establishments in British India and all existing forms'of judicial procedure, and into the nature and operation of all laws, civil or criminal, written or customary prevailing and in force in any part of British India, to which any inhabitants of this country were then subject: S. 53 of the Chapter Act, 1833 has been described byRankin as, "the legislative mainspring of law reform in India so far as regards policy, though principles and ideas were still to seek." Lord Macaulay formulated the principle to be followed in codifying the laws thus : "We must know that respect must be paid to the Feelings generated by differences of religion, of nation and caste; Much, I am persuaded, may be done to assimilate the different systems of law without wounding those feelings. But whether we assimilate those systems or not; let us ascertain them, let us digest them. We propose no rash innovation, we wish to give no shock to the prejudices and any part of our subjects..... Our principle is simply this—Uniformity where you can have it—diversity where you must have it—but in al 1 cases certainty." Q. 17. Trace the development and codification of Hindu and 'Mohammedan laws during British period in India. Ans. Application of Personal Laws—Warren Hastings for the first time provided for in his plan of judicial reforms that 'Hindu law for Hindus' and 'Mohammedan law for Mohammedans', should be applied in certain head of litigation. That time English judges not being acquainted with the personal laws of Hindus and Muslims and languages, habits, and customs of natives, took the assistance of native law officers Pandits and Kazis, who were to expound the principles of law to judges applicable to particular circumstances. In course of time, a body of precedents was created, many principle of Hindu and Muslim law had established. In 1864, the assitance of law officers was done away. Thereafter the responsibility to find out the principles of Hindu and Mohammedan taws was placed to the judge himself. Privy Council also opined that now courts should not seek assitance of expert advisors.


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Saving of Personal Laws to Hindus and Muslim-. Under the Acts of 1781 and 1793—Under the Act of Settlement it was provided that in cases of contracts, succession and dealings between parties, Hindu law should be applied if both the parties are Hindus. If parties profess different religion, then the law of defendant must be applied. In the subsequent years text books of Hindu laws were prepared in Bnglish for the help of English judges. Sir William Johns who was a judge of Supreme Court and who was also a great linguist prepared Codes of Hindu laws with the help of other judges and scholars. In 1794, he published his famous Institutes of Hindu Laws or Ordinances of Manu. In 1792, Sir Johns translated Mohammedan law of succession to the property and law of inheritance. Sir Francis Macnaughten published his considerations upon Hindu law in 1824. A more valuable work was his considerations upon Hindu jaw in 1824. A more valuable work was published by Sir Thomas Trange, the Chief Justice of Madras Supreme Court in 1825. Sir William Hay Macnaughten published principle and precedents of Hindu law in 1829. Maine published treatise on Hindu law and usage in 1878. Neil Baillie's treatise of the law of inheritance was described as excellent work. The Cornwallis Code of 1793 also provided that in suits regarding succession, inheritance, marriage and caste and all religious usages Hindu laws should be applied if parties are Hindus. Personal Laws and the Court—While the text books of Hindu and Mohammedan law were being prepared, the real work for ascertainment of personal law was done by the court, specially by Privy Council. With, what delicate subject with an unfeigned desire to decide questions of Hindu law in harmony with the religious feelings of the Hindus. The Privy Council was :»ware of the fact that the Hindu law contains in itself the principles of its own exposition.......Nothing from foreign source should be introduced into it, nor should courts interpret: the text by the application to the language of strained analogies. The source of Hindu law, i.e., Srutis, Smrities orDhramshastras are not pure work of law but are combined work on religion, morality, ethics and law. Therefore, court faced difficulty in expounding law through these sources. Apart from this, the customs of Hindus were also taken into consideration. Thus, Privy Council played an important role in the development of personal laws-of Hindus and Mohammedans.


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Hindus Law and Ancient Literature—-The Sruti, Smritis, Dharmshastras and customs are treated an important source of Hindu law. The Srutis contain the words of God and they include the four Vedas. "These Contain a little of law. The smiritis are the collections handed by the Rishis of antiquity of the precepts of God. These Smritis are principle source of law. Three Smritis are important, the Code of Manu the Code of Yajnavalkya and the Code of Narda. These Smritis donot agree with each other in all respects. Various commentators have tried to resolve this disagreement. Two Schools of Hindu Laws—There are two schools in Hindu Law, Mitakshara of Vijnaneswara and Dayabhaga of Jimtitvahana. The Dayabhaga School prevails in Bengal and Mitakshara in rest of the country. Both the commentators are supreme in their fields. Jifnutvahana wrote his Dayabhaga in 13th century. Mitakshara is a commentary on Yajnavalkya Smriti. Judicial Process and Mohammedan Law—Judicial process in the sphere of Mohammedan law was not less important. Court not only ascertained the law but also introduced new principles, though to a much lesser extent than in Hindu law; notions of English equity and law. Time to time Muslim jurists have criticised the judicial pronouncements also. Fyzee observed that in Abul Fata V. Russomoy, by holding that family waqfs were void, their Lordships misunderstood an important point of Mohammedan law of waqf, misapplied a rule of English law to the Muslim institution of waqf and overruled a long line of Muslim jurists both modern like Mr. J. Ameer AH and ancient too numerous to mention. Application of Personal Laws on Sects and Subjects—When the law of Koran to the Muslims and the law of the Shastras to the Hindus were applied, it was erroneously believed that Indian people are divided into two great classes. Actually, Hindus and Mohammedans are divided into various sects, and sub-sects. The Mohammedans have two sects, Shias and Sunnis. Hindus are divided in various groups like Sikhs, Jains, Bhudhists, and so on. Then naturally question arose as to whether Mohammedan law is applicable to Sunnis and Shias or whether, Hindu law is applicable to Jains and Sikhs. But, the attitude of Muslim jurists to custom was some what different from that of Hindu jurists. The sources of Muslim law are Koran, Hadis, Ijma, Urf and Kyas. Urf or customs assume somewhat subordinate place in the scheme of Muslim law.


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In order to effect the changes the following Acts were passed by Indian legislature from time to time—1. The Caste Diabilities Removal Act, 1850; 2. The Hindu Widows Remarriage Act, 1856. 3. The Native Converts Marriage Dissolution Act, 1886. 4, The Hindu Wills Act, 1870. 5. The Transfer of Property Act, 1882. 6. The Indian Majority Act of 1875. 7. The Guardian, and Wards Act of 1890. 8. The Hindu Inheritance (Amendment) Act, 1929. 9. The Hindu Inheritance (Removal of Disabilities) Act, 1928. 10. The Hindu Gains of Learning Act, 1930. 11. The Special Marriage Act of 1872. 12. The Hindu Womens' Right to Property Act of 1937.13. The Arya Marriage Validation Act of 1937.14. Hindu Married Women's Right to Separate Residence and Maintenance Act, 1947. 15. The Hindu Marriage Validity Act, 1949 and Hindu MarriageAct, 1953.16. The Hindu Sueceission Act of 1956. Q. 18 Discuss the federal features of the system of Government India by Govt. of India Act, 1935. Or State the provisions of Government of India Act, 1935. Or What were the chief defects of the Government of India Act, 1935? Ans. The Government of India Act, 1935, established a federal form of Government for India. Prior to this Act, the constitutional structure of the Government was unitary wherein the Provincial Governments, derived their powers by devolution from the Central Government. They discharged their functions subject to the authority of their respective Legislatures under the superintendence, direction and control of the Governor-General-in-Council and ultimately of the Secretary of State for India. The only sphere in which the Provincial Governments enjoyed some measure of autonomy was the administrattion of'transferred subjects. 'The Indian States were autonomous within tHieir own territories and their relations with the Governor-GGeneral-in-Council were governed by the rule of paramountcy. Fedesral Features of Government of India Act, 1935—The Government of India Act, 1935, established a federal system of Government. It was a 'very elaborate and lengthy Act comprising 321 Ss. and ten Schedules— The main features of the Act relating to federal system of Govt. are as under—


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1. Establishment of an All India Federation—The Government of Indian Act, 1935 provided for the establishment of an Indian Federation composed of the Governor's Provinces and the Chief Commissioner's Provinces in British India and such of the Indian States, as may voluntarily accede to it. The tribal and excluded areas were also to be subject to the jurisdiction of the Federal Government of India, but they were not given a representattion on its various organs. The Governor's provinces and the Chief Commissioner's Provinces were to join the Federation compulsorily while the princely States could enter the federation voluntarily if their ruler signed an instrument of Accession. Thus, any State could keep out of federation, if it so desired. Thus, the Act provided for an All India Federation. The Indian States were under the complete control of Government of India whereas the Provinces had some sort of democratic Government. The entry of the Provinces". into the federation was to be automatic while the Indian States were required to execute an instrument of accession to join the Federation. The functions of Crown with regard to the Indian States were to be performed in India by his representative who in fact was the Viceroy himself. 2. Division of Powers under the Indian Federation—The division of powers between the Federal Government and the Federating Units is a characteristic feature of all the federations. In relation to the Provinces there was a these types division of functions and the subjects were divided into Federal, Provincial and Concurrent Lists. The Federal List contained in all 59 items which were exclusively the federal subjects. The more important of these subjects were Defence, Foreign Relations including relations with Indian States, Extradition, Railways, Posts and Telegraphs, Foreign Trade, Shipping, Navigation, Explosives, Arms and Ammunition, Federal Services, etc. The matters which were of all-India interest and needed uniform policy were included in this List. The Federal sources of revenue mentioned in this List included customs, salt, opium, income-tax, succession duties, stamp and excise duties on certain items, corporation taxes, etc. The subjects enumerated in the Provincial List were within the exclusive jurisdiction of the Provincial Legislatures. The List contained matter of Provincial or local interest, such as education, land revenue, Local-self Government, public health, police, prison, forests, irrigation, industries, etc. Finally, the Concurrent List consisted of 54 items on which both Federal Legislature and the Provincial Legislatures were competent to make laws.


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3. Establishment of Dyarchy System in the Centre—The Government of India Act, 1935 introduced diarchy at the Centre and a responsible government at the provinces. Certain Federal subjects were reserved in the hands of the Governor-General to be administered by him with the assistance of three Councillors to be appointed by him. In the administration of the other Federal subjects the Governor-General tiai to be aided and advised by a Council of Ministers whose number was not to exceed ten. Inspite of the composite character of the Ministry it was to be collective. The ministry was to be responsible to the Federal-legislature. 4. The Structure of the Governments-—Although many of the provisions of the Act never came into practical operation, yet the proposed form of Governments at the centre and in the provinces was as below— (i) Federal Government—The Executive -It was to consist of the-Governor-General and a Council of Ministers. The Governor-General had to act on the advice of the Council of Ministers except 'in matters which were reserved i.e., the external affairs, defence, ecclesiastical affairs, administration of tribal areas and the matters which were in his special responsibility. He could also legislate temporarily by Ordinance or permanently by an Act with respect to the reserved subjects or the subjects in his special responsibility. On the advice of his ministers he could issue an Ordinance on any subject. In the event of constitutional breakdown the Governor-General could assume all or any of the powers vested in the federal authorities. The Governor-General had to act in two different capacities for the Governor's Provinces and the Indian States. With respect to the former he was the Governor-General while for the latter he was the Crown's representative. The Crown's paramountcy over the Indian States was to be exercised not through the Federal Government but directly through the Crown's Representative. The Legislature—The federal legislature was to consist of—(a) The King, represented by the Governor-General (b) the Council of State and (c) the Legislative Assembly. The Council of State was to consist of 260 members, of whom 104 were to be the representatives of the States, 128 were to be directly elected by territorial communal constituencies, 22 seats were assigned to small minorities, women and depressed classes and 6 were to be nominated by- the States. The Legislative Assembly was to consist of 375 members of whom 125 were to be the representatives of the Indian


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States nominated by the Rulers of the States and the remaining were to be sent after indirect election by the Provincial Assemblies. The election was on communal basis and the method was proportional representation with single transferable vote. The two houses were to have equal powers except in financial matters where the Legislative Assembly could exercise more powers. The Council of State was to be permanent house with one third of its members retiring at the end of every second year. The normal duration of the Legislative Assembly was to be 5 year, unless dissolved earlier. "A most striking feature of the Central Legislature was its relationship with the Governor-General. In fact, the powers of the Governor-General in relation to the Legislature were so overwhelming that the latter had hardly any power which could be claimed as its own............... the Legislature contemplated under the Constitution Act of 1935 was more a legislature by courtesy than by its powers." It has been seen above that the Governor-General could himself exercise legislative powers to a large extent and could also prohibit the legislature from exercising its legitimate powers by the exercise of his veto power. The Federal Court—A Federal Court was set up at Delhi by the Act. "In fact, of all the institutions set up under the Act, it was the Federal Court which proved to be the most successful in operation.'' Note—For further detail PI. See Q. 16. 5. The Provincial Government—The composition of the Government in the eleven Governor's provinces was to be as below— (i) The Executive—The executive consisted of the Governor and his Council of Ministers. The Governor was given powers on the pattern of Governor-General i,e., some subjects were reserved for the Governor and no advice was sought from the Minister in the exercise of these powers. Some of the subjects were left on the special responsibility of the Governor where he was not bound by the Ministerial advice and lastly there were some subjects on which he acted on the advice of his Ministers. Like the Governor-General he could make an Ordinance or an Act on the subjects of his special responsibility and on the advice of his ministers he could legislate through ordinance on any subject. He could also exercise various legislative and financial powers at his discretion. In the case of constitutional breakdown in the Province, he


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could by proclamation assume all powers vested in or exercisable by any Provincial body or authority, except the High Court. "The Governor's powers as a whole presented a formidable list seldom found in the case of an executive head functioning under a responsible system of Government." (ii) The Legislature—The composition of Legislature varied from province to province. Out of the eleven provinces there were bicameral legislatures in six and unicameral in five provinces. The legislature was called as Legislative Assembly. Where there were two Houses, the Upper House was called as Legislative Council and the Lower as Legislative Assembly. The members of the Assembly were directly elected by the people on the communal basis or through various bodies and associations. Members of the Council were elected by the general constituencies, Assemblies and some of them were nominated by the Governor. The duration of the Assembly was normally 5 year. The Council was a permanent body. One third of its members being renewed at the end of ever}' third year. The right of vote was restricted on the basis of economic and educational qualifications and only about 14% of the total population enjoyed this right. 6. Abolition of the India' Council of Secretary of State—The Government of India Act, 1935 provided for the abolition of the India Council of the Secretary of State and advisors were to be appoined in its place for his consultation and aid, wherever the Secretary of State deemed it necessary. 7. The Home Government Lifted the Control over Indian Sphere-The Home Government lessened its control over Indian sphere due to the introduction 'of Provincial autonomy in the provinces and responsible Government at Centre. The Governors and the Governor-General were made strictly responsible to the Secretary of State, in the exercise of their discretionery .powers. 8. Substractions from the Principle of responsible Govt—The Government of India Act, 1935, provided vilal .subductions from the principles of responsible Government as well as of Self-Government. Firstly, Indian Legislatures were denied of many legislative powers and secondly, the Governors and the Governor-General were empowered to over-ride their ministers and legislatures in certain circumstances.


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9. Establishment of a Rigid Constitution—The Act of 1935 provided for a rigid Constitution, only British Government was competent to amend it. 10. Establishment of Provincial Autonomy—In pursuance of the policy declaration of August, 1917, the Government of India Act, 1935 granted provincial autonomy. The control of outside powers was relaxed to a considerable extent. . Chief Defects of the Government of India Act, 1935—The chief defects of the Government of India Act, 1935 were as under—(i) The power to amend the Constitution was not given in Indian hands. Ultimately Indians had no control over the Government of their country, (ii) People disliked the introduction of dyarchy at the Centre as they already had seen its evil in the Provinces, (iii) It depended upon the choice of Indian States to join the Federation or not. (iv) The Indian States were given the privileged position in the Federation so they were serving the British interests everywhere, (v) Indirect election to Federal Assembly were against the canons of Democracy. (vi) The ultimate control of the Secretary of State over the All-India Services was detested by the Indian people, (vii) Defence was consuming the lion's share of the budget but being a Reserved subject was not controlled by Indians, (viii) States Legislatures were filled by communal representation which was against the root of Indian nationalism, (ix) The safeguards, reservations and special powers placed to the Indian Ministers under the constant visit and control of the executive which Indians never liked, (x) The discretionary powers of Governor reduced the Provincial autonomy to a farce. (xi) The powers of Provincial Legislature were very much restricted. Upper Chambers were made reactionary bodies. It was for the above reasons that the Government of India Act, 1935, found favour from no quarter. Lord Atlec remarked : "The keynote of the Bill is mistrust." Indian National Congress condemned it for its conservatism. Indian National Congress held that, it did not envisage any transfer of power into Indian hands. A critic observed the Act as "disgusting, poisoning and offensive. Conclusion—From all that what is said above it can rightly be concluded in the words of Pylee "The federal system which the Act of 1935 aimed to establish was perhaps the most complex ever known in the history of federalism."


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Q. 19. (a) What are the main provisions of Indian Independence Act, . Explain its effect. Ans. 1. The Indian Independence Act, 1947—With a view to give effect to the plan of Lord Mountbatten, the then Governor-General of India, the British Parliament passed Indian Independence Act, 1947 on July, 18. The Act came into force on 15th August, 1947. The main provisions of the Indian Independence Act, 1947, are as follows— 1. Creation of Two Dominions of India and Pakistan—The Act provided for the partition of India and establishment of two independent Dominions—India and Pakistan from August 15, 1947. The word "independent" signified the absence of any external restraint. The 15, August was said to be the "appointed day". 2. Determination of the Territories of Two New Dominions— Cl.(2) of the Act defined the territories of the two new Dominions and made it possible to bring about necessary adjustments in the existing boundaries. Clauses (3) and (4) provided for the partition of Bengal, Punjab and Assam keeping in view the aspirations of the people of these territories and fixing of the boundaries of these divided Provinces by the Boundary Commission. The Dominion of Pakistan consisted of two non-contiguous partitions, West Pakistan and East Pakistan which were severed from old India. It is important to note that the Act for the first time brought about the division of India into two independent States on communal basis which was hitherto unknown to the history of India. 3. Legislative Supremacy of the Two Dominions—The Governor-General of each Dominion was empowered to promulgate Ordinances to meet emergencies as provided under the Government of India Act, 1935. Such ordinances were to remain in force only for six months until superseded by an Act of the Dominion Legislature. But the authority of provincial Government U/S. 93 of the Government of India Act, 1935 was done away with. The provisions requiring the Governor-General or any Governor to act in his discretion or exercise his individual judgment would ceased to have effect from August, 15, 1947. 4. Constituent Assemblies of Each Dominions Granted the Status of Dominion Legislatures—The Act provided that until a new Constitution was framed for each of the Dominions, the Constituent Assemblies were to act as Dominion Legislatures and


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were to exercise all powers which were formerly exercised by the Central Legislature. This power was to be exercised by the Constituent Assemblies in addition to their power of framing of a new Constitution for their respective Dominions. This was indeed a unique feature which the Constituent Assemblies of India and Pakistan were conferred under the Indian Independence Act, 1947 as compared to other Dominions of the world. 5. Freedom from British Rule—The most epoch-making effect of the Act was that India no longer remained a dependency of British Empire. Like other dominions, it now got the status of an independent nation. Thus, the British period in India came to an end after nearly three and a half centuries of trading, two centuries of political power and 130 years of general supremacy. After the coming into force of the Act, the British Government had no control over the affairs of the Dominions of India and Pakistan or part thereof. 6. Continuance of the Government of India Act, 1935 until the Framing of a New Constitution by the Two Dominions—The Indian Independence Act, 1947 specifically laid down that the new Dominions shall continue to be governed by the provisions of the Government of India Act, 1935 in so far as they are consistent with Dominion Status. It empowered the Governor-General of each of the two Dominions to make necessary omissions, additions or modifications in the Government of India Act, 1935 and the Orders-in-Council, Rules and other Instruments made thereunder till March, 31,1948. After that day, it was open to the Constituent Assemblies to modify or adopt the same Act. 7. Termination of the Crown's Paramountcy—With the transfer of power to the Dominions of India and Pakistan in accordance with the Indian Independence Act, 1947 the paramountcy and suzerainty of the British Crown over the Indians and over the Indian States came to an end. Consequently, all treaties and agreements between His Majesty and the rulers of the Indian States and all functions exercisable by His Majesty with regard to Indian States and their rulers, and all powers, grants, rights, authority or jurisdiction of His Majesty over Indian States lapsed from August 15, 1947. The Instrument of Accession relating to Dominion of India, laid down that the acceding States have agreed to give to the Legislature and Authorities of the


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Dominion of India, jurisdiction over matters, namely, defence, external affairs and Communications. 8. Agreement with Tribes of N.W.F.P.—The Act provided that agreements with the tribes of the North-West Frontier Province of India were to be negotiated by the successor Dominions. 9. Office of the Secretary of State for India Abolished—The constitutional position of British Government in relation to India having been altered from August 15, 1947, their responsibility as regards the Government of the territories included in British India ceased and the sovereignty of British Crown over Indian States came to an end. Consequently, the office of the Secretary of State for India and his advisers was abolished by the Indian Independence Act, 1947. 10. Continuance of the Civil Service of the Crown under the Government of the New Dominions—S. 10 of the Act contained that the persons who were appointed by the Secretary of State in Council to the Indian Civil Service were to continue on and after August 15, 1947 under the Government of either of the new Dominions or any Province or part thereof and their conditions of service in respect of remuneration, leave, pension, tenure and rights relating to disciplinary matters, etc., could not be altered to their detriment. 11. The Governor-General for Each Dominion and His Powers—The Act provided that each of the two Dominions of India and Pakistan ,w.as to have a Governor-General appointed by the King for the purpose of the Government of the Dominion. The Act also provided that same person could be appointed Governor-General for both the Dominions. Accordingly, Lord Mountbatten was appointed as the first Governor-General for the Dominions of India and Pakistan, both. The main function of the Governor-General was to bring into operation, the machinery of Indian Independence Act, 1947. He had the task of carrying on for the time being on behalf of the new Dominions or on behalf of any Province, certain vital services such as Railways and other communications, Reserve Bank, the Monetary and Fiscal System, Defence and the like, which were hitherto being operated in the interests of whole of India. The right of the King to veto or to reserve law for his plesure came to an end with the passing of the Government of India Act, 1947 and the Governor-General was given the right of assent in the name of


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His Majesty to any law to the Dominion Legislature made in its ordinary legislative capacity. 12. Lapse of the Instrument of Instruction—S. 18 of the Act provided that the existing Instruments of Instructions to the Governors and Governor-General shall lapse with the coming into effect of this Act. The reason being that the Governors and Governor-General were now required to act as the Constitutional heads in future, and therefore, Instruments of instructions were no longer necessary for them. Effects of the Indian Independence Act, 1947— 1. The Indian Independence Act, 1947 marked the end of ninety years old British rule in India. The British Crown severed its paramountcy at one stroke. The Indian States regained their status which they enjoyed prior to the British sovereignty. 2. S. 6 (2) of the Act vested in the Legislature of either Dominion, the power to repeal or amend-any Act of British Parliament existing or future one. Even the Indian Indpendence Act, 1947 itself could be repealed or amended under this clause of the Act. 3. By this Act, the British Parliament renounced its sovereignty once for all and no further imperial legislation was necessary for validating the future Constitution of India or Pakistan, as the case may be. 4. The Dominions of India and Pakistan were not to derive their authorities from British Crown. The officers of these Dominions were to take oath of allegiance not to the British Crown but to the Constitution of their respective Dominions. Q. 20 What were the objectives of Indian Councils Act, 1892 ? State the provisions and defects of this Act briefly. Or What are the circumstances which led to the passing of the Indian Councils Act, 1892 ? Ans. Object of the Indian Councils Act, 1892— -Although the Indian Revolution of 1 857 was curbed and some reforms were introduced : yet, the political situation in the country became highly surcharged with the spirit of nationalism. The chief factors which gave rise to the Nationalist Movement in the Eighties of the 19th century can be summed up as follows —


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1. The liberal political ideas of the West had inspired the educated elite in the country, and therefore, their craving for political independence was strengthened; 2. There was a general movement of religious revival which enhanced the faith of the Indian people in the glory of ancient India. The result was that Indians began to consider themselves as people not inferior to the British; 3. The economic discontent had assumed vast proportions as a result of the destruction of indigenous handicraft industries in the country; 4. The Indian press and vernacular literature had played an effective role in rousing the national conscience of the Indian people; 5. The development of means of communication had strengthened the patriotic bonds of the people; 6. The unimaginative administration of certain Governor-General like Lord Lytton increased the feeling of racial bitterness. Besides, the arrogance and the insolence of the rulers resulted in complete dissatisfaction towards the Government. In the meanwhile, the Indian National Congress established in 1885 organised the national political opinion in the country. It gave a clear demand for greater share in the Government and administration in its very first session, which also expressed grave dissatisfaction at the system of Government as existed then. The Viceroy Lord Dufferin felt the pulse of the country and appointed a Committee of his Council to draw up a plan for the enlargement of the Councils. Though the Secretary of State did not agree with all the recommendations of the Viceroy; yet, a bill was introduced in Parliament which was passed two years later. This Act is known as "Indian Councils Act of 1892". Provisions of Indian Councils Act, 1892—In brief, the provisions of the Indian Councils Act, 1892, are as follows— 1. This Act made the provision, regarding the number of'Additional Members'. By this provision, the number of such members shall not be less than 12 and more than 16. 2. Nominated members were to be appointed after the approval of the Secretary of State. 3. The members were authorised to ask the questions of public interest. 4. Discussion on financial matters was allowed.


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5. Additional members in the Provincial Councils of Madras, Bombay, and Bengal were increased which were atleast 8 and at the most 20. Defects of the Indian Councils, Act, 1892—The defects of the Indian Councils Act, 1892 are as under— 1. The system of elections was a round about one. 2. The members could not ask supplementary questions. 3. The rules of election were unfair. 4.The number of non-official members was very small. 5. The Punjab was not given any representation either in the Viceroy's Council or in the local council. I 6. The public representation was negligible. 7. No efforts were made to enlarge the boundaries of the educated class to provide them with any training in responsible government. 8. The Indian people always asking for more, to whom it would be, therefore, a piece of prudent policy to begin with offering as little as possible. 9. The, number of elected members was very small. 10. The rights and privileges granted to the members of the legislative councils were strictly circumscribed. 11. There was practically no change for the non-official members to amend the Bills introduced by the Government. Debate in the legislatures were a more formal ceremony. 12. By the Act of 1892, no member shall have the power to submit it or propose any resolution, or divide the council in respect of any such financial discussion, or in answer to any question asked under the authority of this Act or the rules made under this Act. 13. The Act still left Indians without any real voice in the administration of their country.

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