D> THE TAMIL NADU } & Dr. AMBEDKAR LAW UNIVERSITY CHENNAI STUDY MATERIAL “LEGAL & CONSTITUTIONAL HISTORY” WORK SUBMITTED TO THE DIRECTOR, SOEL SCHOOL OF EXCELLENCE IN LAWINDEX S.No. TOPICS een awe wn 10. UNIT-I Administration of justice in Madras before 1726 Administration of justice in Bombay before 1726 Administration of justice in Calcutta before 1726 Mayor’s court and the Charter of 1726 Warren Hasting’s plan of 1772,1774 and 1780 Supreme court at Calcutta-its composition, powers and functions The Settlement Act of 1781 Judicial measures of Cornwallis 1787, 1790 and 1793 UNIT-IL Dual system of administration of justice and amalgamation of two system of courts The High court’s Act, 1861 Federal court High court Act under the constitution Development of rule of law Separation of powers Independence of judiciary Privy council as a court of appeal and jurisdiction Abolition and its jurisdiction of the privy council History of law reporting Page.No. 16 23 2s 40 48 51 57 60 64 68 2 77 82 85 | 93Ser aneeD ? + PB & i UNIT-III Legislative authority of east India company under the Charter of 1600, 1661 and 1726 Regulating Act,1773 The Pitts India Act of 1784 The Charter of 1793 The Charter of 1813 The Charter of 1833 The Charter of 1853 The Government of India Act, 1858 The Indian Councils Acts of 1861 The Indian Council Acts of 1892 UNIT-IV Minto-Morley Reforms of 1909 The Mont-Ford reforms of 1919 Dyarchy The Government of India Act, 1935 Provincial Autonomy UNIT-V Development of legal profession before 1726 Development of legal education The Advocates Act, 1961 The All India Bar Committee of 1923 98 102 105 108 110 1 113, 1S 119 122 124 128 135 138 146 148 154 1595. The Bar Council of 1926 160 6. The All India Bar Committee 161 7. Provision for enrolment of Advocates under the legal Practitioners Act 164PREFACE The course material for the subject “legal and Constitutional history” is a simple version of the various topics contained in the syllabus. This traces the development of the legal system and judiciary from 1600 till independence in 1947, Adequate care has been taken to ensure that the students at the degree level will get an intimate knowledge about the changing structure of the governance and legal system, the charters and Acts passed from time to time and legislative changes as well, an understanding of which is of vital importance to a law student. This material is an extract of sufficient information’s collected from various texts on legal and constitutional history. I hope that definitely, this material will be a supportive one along with textbooks and other references. I will be failing in my duty if I don’t express my profound and sincere gratitude to Prof.P.Vanangamudi, our Hon’ble Vice Chancellor, and Prof,Dr.$.Narayana Perumal, Director U.G.Course, SOEL, for giving me this opportunity of preparing the course material. I acknowledge sincere thanks and gratitude Tmt.S.Gayathri and Mrs.V.Poojasree, faculties, for their valuable and sincere efforts for their complete assistance in the outcome of this material. Prof. Dr. N. Ebenezer Joseph, HOD i/e Dept of Intellectual Property Rights, THE TAMILNADU Dr. AMBEDKAR LAW UNIVERSITY, CHENNAIUNIT -1 CHAPTER-I ADMINISTRATION OF JUSTICE IN PRESIDENCY TOWNS OF MADRAS, BOMBAY, CALCUTTA FROM 1600 TO 1726 AND THE DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS |. ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWN AND DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS UNDER THE EAST INDIA COMPANY(1600-1773) INTRODUCTION: L The legal history of British India opens with the establishment of the East India Company. ._It was incorporated in England by the Crown’s Charter of 1600 or Charter Act of 1600 and the company was exclusively given trading rights in Asia(including India), Africa and America. . All the members of the company constituted themselves as General court and it was to elect the Court of Directors every year. |. The court of Directors consisted of a Governor and 24 Directors who was to manage the entire business of the company. . The Court of Directors could be removed from their office even before the expiry of their term of office by the General court. OBJECT OF THE COMPANY: Initially the company had intention to carry on trade and commerce in Asia, Africa and America and it was conferred with only those powers which were necessary to regulate its business and maintain discipline amongst its servants and not for governing any territory. . But when the company entered India and found that the Indian kings were disunited and unaware of modern politics, the company gradually acquired territory of India. . Portuguese occupation of Indian territories also inspired the company to acquire territory in India and this acquisition was also beneficial from the commercial point of view also, because the company could capture market for its goods. |. In short, at the time of incorporation the object of the company was only commercial but later it tured in to political.x x w s . The Charter of 1600 conferred powers only to regulate its business and maintain discipline amongst its servant, but when its object turned in to political, it needed the powers necessary for the maintenance of the territory and the British crown cooperated with it and conferred on it more powers for this purpose. . In early days the administration of justice in the settlements of East India Company was not of a high order and there was no separation of powers between executive and judiciary. . The judges were not law experts and the company gave lesser importance to judicial independence, fair justice and rule of law. ADMINISTRATION OF JUSTICE AND DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS IN MADRAS BEFORE 1726: . In 1639, Francis Day acquired a piece of land from a Hindu Ruler for the East India Company and constructed a fortified factory. . Besides the Raja granted a village to the company known as ‘Madraspatnam’ and empowered the company to govern and dispose of the government of the village. . The people residing inside the factory were Englishmen and other Europeans and therefore the area of the factory came to be known as ‘White Town’ and the people residing in the village Madrasapatnam were mostly Indians and therefore it came to be known as ‘Black town’. |. The whole settlement consisting of white town and black tow came to be known as ‘Madras’. The judicial administration and development of courts and judicial institutions in Madras before 1726 may be studied in following stages: FIRST STAGE: 1639-1665 WHITE TOWN: 1. 2. Before 1665, Madras was not a presidency town and it was subordinate to Surat. The administrative head was called as ‘Agent’ and he was to administer the settlement with the help of a council. The agent and the members of his council were to administer civil and criminal justice to the inhabitants of white town. . The serious criminal cases were often referred to them to the company’s authorities in England for advice.DEFECTS: i The judicial power of the agent and council was vague and indefinite. The serious criminal cases were referred by them to the company’s authorities in England for advice which involved much delay. 2. The agent and the members of his council , who were to administer justice, were merchants and not lawyers. They were supposed to decide cases according to English laws, but actually they did not even have elementary knowledge of the English laws. Consequently, they used to decide cases according to their wisdom and common sense. 3. There was no separation between the executive and judiciary. The agent and council constituted both the executive and judicial authority for the white town. BLACK TOWN: 1. The old judicial system was allowed to function and there was a village headman known as Adigar(Adhikari) who was responsible for the maintenance of law and order. 2. The Choultry court with Adigar as the judge was to decide civil and criminal cases of the natives according to long established usages and thus it was a court of petty cases and not to hear the cases of grave offences committed by the natives. 3. The appeals from the Choultry court was to be heard by the Agent-in-council. 4. An Indian native, Kannappa was appointed as Adigar but he misused his power and consequently he was dismissed from the office and the English servants of the company were appointed to sit at Choultry court. DEFECTS: 1. There was no fixed procedure for the trial of serious criminal cases and the procedure varied from case to case. 2. The judge of the Choultry court was a layman and not a lawyer. 3. The Choultry court could decide only small civil and criminal cases. It was empowered to decide the serious criminal cases like murder etc. 4. There was no separation between the executive and the judiciary. The agent and council constituted both the executive and judicial authority and they were to hear appeals from the Choultry court.v CHARTER OF 1661: . In 1661, a charter was granted by the British Crown which conferred broad powers on the East India Company. . It authorized the Governor and council of each factory to hear the cases of all persons whether Indians or Englishmen or Europeans, while under the charter of 1600 only the cases of the company’s servants could be heard. . The Charter of 1661 authorized the Governor and council to hear and decide all types of civil and criminal cases including the cases of capital offences and could award even death sentence, while under the Charter of 1600 capital offences could not be awarded and death sentence could not be awarded. . It is to be noted that the above said powers conferred on the company could only be exercised by the Governor and council appointed by the company and where there was no Governor, the Chief factor and council were empowered to send offenders for punishment either to a place where there was a Governor and council or to England. DEFECTS: e . The charter of 1661 could not separate the judiciary from the executive. The Governor and council constituted both the executive as well as judiciary. The Governor and the members of his council who were to administer justice were merchants and not lawyers and therefore even under this charter the administration of justice remained in the hands of laymen. . Under this charter even the cases of Indians were to be decided according to the English laws and consequently the Indian laws, customs and usages could not be protected. The Governor and his council of members were not law experts and so they were deciding cases according to their common sense and sense of justice.SECOND STAGE: 1665-1683 1. In 1665, One Mrs.Ascentia Dawes was charged with the commission of murder of her slave girl and the Agent —in-council referred the case to the company’s authority in England for advice. 2. The company raised the status of agency of Madras to that of the presidency and status of Agent to that of Governor, because the powers conferred on the company by the Charter of 1661 could only be exercised by the Governor and council and not by the agent-in-council. 3. Under the Charter of 1661, the Governor and council were authorized to hear all types of civil and criminal cases including capital offences like murder. 4, After the status has been raised from Agent to Governor, the case of Mrs.Dawes was tried by the Governor with the help of jury as per the company’s direction and an unexpected verdict of not guilty was given and consequently Mrs.Dawes was acquitted. 5. In 1678, the whole judicial administration was reorganized and the judiciary in both White Town and Black Town was improved to some extent. WHITE TOWN: 1. The court of Governor and council was declared as High court of Judicature and it was empowered to hear all civil and criminal cases of the inhabitants of White town with the help of a jury. 2. Besides it was to hear serious criminal cases of Indian inhabitants in Black town and also appeals from Choultry court with the help of a jury. 3. The court was to meet twice a week and decide cases according to English laws, BLACK TOWN: 1. The Choultry court was also reorganized and the number of judges were increased to three. 2. Alll the judges were Englishmen and atleast two of them were to sit in the court for two days in each week. 3. This court was empowered to hear petty criminal cases and civil cases up to 50 pagodas (pagoda was gold coin and one pagoda was equal to 3 rupees) and the cases of a higher value with the consent of the parties and appeals were referred to High court of Judicature.MERITS: 1. During this period, arrangements were made for regular meetings of the courts. The High court of Judicature and the Choultry court both were to meet twice a week and this reduced the delay in the disposal of the cases. XN . The jurisdiction of the High court of Judicature and Choultry court was well defined. » . There was a great need of a regular superior court. The High court of Judicature consisting of the Governor and council was established to meet the need. DEMERITS: . The judges of the High court of Judicature and Choultry court were not lawyers but laymen. They did not even have elementary knowledge of English law and consequently they used to decide cases according to their wisdom and common sense. 2. The Governor and council like their predecessors, the Agent and council used to refer the serious criminal cases to the company’s authorities in England for advice which involved considerable delay. In a case dated January 31, 1678 an Englishman who was charged with the commission of murder was confined to the prison for 31 months without trial as the case had been referred to the company’s authorities in England for advice. . Inspite of having power to hear all types of civil and criminal cases including capital offences, the reason for such reference is only because of lack of legal knowledge and not lack of judicial power. The Governor and council were well aware of their lacking knowledge and so they was not dare enough to decide serious criminal cases. 4. The separation between the executive and judiciary was not maintained. The Governor and council constituted both the executive as well as High court of Judicature. 5. The Choultry court was empowered to take cognizance of small matters only. Thus it was conferred on any significant judicial power. THIRD STAGE: 1683-1726 COUTS OF ADMIRALTY: . During this period two important courts were established, i.e, Court of Admiralty under the Charter of 1683 and 1686 issued by the British crown and Mayor's court under Charter of 1687 issued by East India Company and not by British crown. nv . The need for establishing the Admiralty court was under the Charter of 1600 only the East India company was conferred power to carry on with trading activities in Asia, uw3 9. Africa and America and not the other British subjects and they wanted to do trading in India they are supposed to get a license from the East India company. But the rights of the company was being infringed by other British traders and on account of it a court having jurisdiction to punish such traders was felt. . The crime of piracy on the high seas was on increase. To deal with it the need of a court having jurisdiction to hear and decide the cases of piracy was felt. . In short the above said crimes attracted the company to establish courts having jurisdiction to hear and decide all maritime and mercantile cases. . Under the Charter of 1683, the court of Admiralty was to consist of a learned person in civil laws as a judge and two merchants to assist the judge was appointed. . It was empowered to hear and decide all types of maritime and mercantile cases and also cases of forfeiture of ships, trespass, injuries and wrongs. I was to decide cases according to law of equity and good conscience and also laws and customs of merchants, but however it was bound to follow the British crown’s direction in relation to its procedure. The provisions of the Charter of 1683 were repeated by the British crown in another Charter granted in April 1686 with some new modifications. It empowered the company to raise naval forces and appoint naval officers. 10.Under the Charters of 1683 and 1686 the court of Admiralty was established at Madras on 10" July 1686 and John Grey was appointed as judge of this court and two Englishmen were appointed as his assistants. 11.0n 22" July 1687, Sir John Biggs, who was a professional lawyer was appointed as Judge Advocate(Chief Justice) of the court. 12.Thereafter the jurisdiction of the Governor and council relinquished the judicial function and the jurisdiction of Admiralty court was extended to hear civil and criminal cases also. 13.In certain cases the appeals from Mayor’s court was also heard by the Admiralty court. MERITS: 1L. The separation of the judiciary and executive was maintained. The Governor and council had executive power only and the judicial power was exercised by the court of Admiralty.2. The administration of justice came to the hands of a professional lawyer and thus the Admiralty court was able administer justice according to English law, whereas before the establish of this court the judges were only laymen and they were deciding cases according to their common sense. But the above good features in Madras did not continue for a long time because Sir John Biggs died in 1689. His death checked the progress of Admiralty court and it ceased to operate. There was no court having jurisdiction to hear appeals from Mayor's court. In this critical situation again the Governor and council temporarily established a court of Judicature having Governor as Judge and he was assisted by two Englishmen in regard to native language. This condition prevailed till 1692 when a new Judge Advocate, John Dolben was sent by company from England. John Dolben was well versed in law and used to decide cases impartially and he was even dare enough to give judgment against the company. The company was not satisfied and ultimately he was dismissed in the year 1694 on charge of taking bribes. Later he was again offered an appointment but he refused to accept. In the place of Dolben Sir William Frazer was appointed as Judge Advocate of the Admiralty court and from 1696, the company directed the members of the council to serve in succession as the Judge Advocate. This court was functioning regularly till 1704, but thereafter it ceased to sit on a regular basis and gradually disappeared and its jurisdiction was transferred to the Governor and council. Ultimately the separation of executive and judiciary came to an end. The company was neither in favour of appointing professional lawyers as judges of the courts in India nor in maintaining judicial independence, because it was afraid that the lawyers would be too independent and would decide cases strictly according to the principles of law which would not allow the company to use the judiciary tool to achieve its political object i.e to acquire Indian territories. Thus the company gave lesser importance to judicial independence, fair justice and rule of law. MAYOR'SICOURTAD 1. In 1688, a Corporation and Mayor’s court was established under the Charter of 1687 issued by the company and not by the British crown. 2. The reason for establishment of this court was when the Madras Government levied house tax, it was strongly opposed by the Hindus of the Black town. They involved in resorting strike methods such as abandoning their duties, shutting up of shops etc. 3. The company thought of setting up of such corporation of the natives mixed with some Englishmen because in the view of the company such corporation could make taxation of that kind more acceptable to the native population and the appointment of caste leaders as Aldermen and burgesses, they would ready to tax themselves and inhabitants generally for various municipal purposes. 134, Such a Corporation was established in 1688 consisting of one Mayor, 12 Aldermen and 60 or more Burgesses. 5. The Mayor and 3 senior Aldermen were always British servants of the company and the remaining 9 Aldermen could be of any nationality. a . 30 of the 60 Burgesses were to be the heads of several castes. Mayor, Aldermen and 29 Burgesses were nominated by the company. Mayor and 3 Aldermen belongs to the Governor and council. 7. allah for 1 year and Aldermen could continue till their lifetime or residence 1 s. However the out going Mayor could be re-elected by the electorate. 8. Vacancy amofigiSQQAIMGHHEHWas to be filled by the Mayor from amongst the Burgesses. 9. The MayGSHIEBS TSG ved Oy eA renal Burgelees AAUARDA Idermen could be removed by Mayor, Aldermen and Burgesses. 10.The Governor and council was given power to renf@yelaniyyMayorgaldermen and Burgesses to appoint ar/f@HEliH PACER VACaRCy. 11.Along with this Corporation the Charter of 1687 establiGhedMayonsicourtalso. The Mayor’s court was a part of Corporation. 12 Th NSE Te CoE CoM eson hirano: M's court and Mayor and Aldermen were to be justices. But the judges were not law experts and therefore a provision was added to Charter of 1687 for the appointment of expert in law and a recorder to assist the judges of the Mayor’s court in deciding cases. 13. SiVORAEBIBESTUNEWUAgEWAGVocate of the Admiralty court was appointed as the 1" Recorder of the Mayor’s court. 14. The Mayor’s court was empowered to hear and decide civil and criminal cases. It was also authorized to punish offences by comporalypunishmentsyimprisonmentandfine, 15.It should decide cases according to justice and good conscience and laws enacted by the company. 16.Civil cases more than 3 pagodas and criminal cases where offender deserves death sentence or lose of limb, the appeals should be referred to Admiralty court. 17.But after 1704, since Admiralty court could not sit regularly, the appeals were referred Governor and council.18.After 1712, it was made clear that the court could award death sentence in case of natives but it could not award death sentence in cases of Englishmen. DEFECTS: 1. There was no separation betwe i re the members of Governor's council who was the executive BOvernment of Madras. ‘The Governor and council could remove any Mayor, Aldermen or Burgesses and appoint anyone in the place of vacancy. 2. The judges of Mayor no knowledge of English laws and they used to decide cases according to their common sense. No uniform and consistency in their decisions. Although an expert was appointed as recorder to assist the judges, the condition could not be improved. Less importance was given by the judge to the advice and opinion of recorder. 3. The judges of the Mayor’s court were not bonestyandyimpartialyand they could be easily tempted. CHOULTRY COURT: During this period, the jue: could hear the cases of petty offences and civil cases up to 2 “aliens” were to sit twice a week at the Choultry to exercise its jurisdiction. In 1753 its civil jurisdiction was taken by the Court of Request, but it continued to exercise its criminal jurisdiction till 18" century. By 18 iCHAPTER-IT JUDICIAL ADMINISTRATION AND DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS IN BOMBAY BEFORE 1726 INTRODUCTION: . The Island of Bombay was acquired by the Portuguese from the King of Gujarat in 1 $3etamctsings66tethisilslandewas transferred by Portuguese king to British crown as a dowry on account of his sister's marriage. . In 1668 this Island was transferred by itish crown to the East India company for an annual rent of ter of 3. The charter empowered the company to make laws and ordinance: ood governance of the Island of Bombay and al fing death sentence), penaligseteandiese Jawsjandepunishmentsshotld not be contrary tthe laws of England. R 4. The power to enact these laws was vested in the c eir court of cot tablish courts to judge all suits. 5. Under the Charter of 1668 the company enacted the layysiforyBombay, and the laws so framed were brought to Bombay in The administration of justice and development of courts and judicial institutions in Bombay before 1726 could be seen in 3 stages: FIRST STAGE: 1670-1683 1. At an early stage, Bombay was under the control of Surat Presidency and the Gov 2. DeplitgyGovernorsanaSSNREH WER ppointed to administer Bombay under the control of Governor of Surat. 3. Mr.Gerald Aungier, the Governor of Surat and Ex officio Governor of Bombay was much interested in introducing sound judicial system in Bombay and due to his efforts, the judicial plans of made to improve the judicial system of Bombay. 16JUDICIAL PLAN OF 1670: . According to this plan the whole Island of Bombay was divided in to two divisions, one division consisted of Boy yn and Gi “hile the other division consisted of Mahi 2. A separate court was established for each division and each court had $ jue judges were to constitute a quorum. 3. The c ivisi was authorized to preside over the respective court. 4, SomeilndianwereialsO Appointed as judges and they were not paid any emoluments. . The court was empowered to hear cases of small thefts and civil action up to S00D xeraphins and appeals from this court was referred to court of Deputy Governor and council and thus the court of Deputy Governor and council constituted a superior court. w ry . Besides the cases beyond the jurisdiction of divi xeraphins and all serious criminal cases like felony, murder, mutiny ete was to be decided by Deputy Governor and council. 7. An appeal from the court of depu Qa aan eEMEG thc Governor and countill/atiStirat{onilylin|eases Of absolute HECeSSity DEFECTS: 1. The administration of justice was in hands of traders who did not even have even elementary knowl€@gerORIEAGISHMAWEaA@ consequently they used to decide cases according to their sense of justice. 2. There were no separatiGhlOh powers BeWeCnGRESHVEIMRA judiciary and both the powers were vested in the same hands. Mr.Aungier was aware of these defects and so he requested the company to send a law expert from England. But the company directed him to select an expert from the servants of the company in India. Mr.Aungier selected Mr. i ) he prepared the judicial plan of 1672 for improving the existing judicial system of Bombay. JUDICIAL PLAN OF 1672: 1. By a government proclamation on A\ ly abolished ar.4 replaced by En; ole judicial system was totally reorganized. 72. A new court known as Coffftl@PidiGattinelwas!lestablishedland IGEOrgelWilcOxDwas appointed as its Judge 3. This cour wes 2. A Hindu women of the Shimpti case changed her religion and became Roman Catholic and on account of it her son of 12 years of age left her and decided to stay with his Hindu relative. 3. The woman filed a suit against the Hindu relative before the Mayor’s court on the ground that he was unlawfully detained some jewel and ibe bay, and the court ordered to handover the boy to his mother. 4. The heads of the caste complained to the Governor who brought the matter before the council, for which it considered that the court had no authority under the Charter of 1726 to determine the cases of the natives’ caste relating to their religion and the court was warned not to interfere in such cases. 5. The court opposed the view of the Governor and council on the ground that dispute before the court was not really religious and it had jurisdiction to decide it under the Charter. ED 266. The Governor and council struck to their previous opinion and took a serious view of the action of the court. The Governor on account of the bold view expressed by the Mayor’s court was annoyed and removed the Mayor from the post of Secretary of the council aap . The conflict was reported to the court of Directors of the company in England and it denounced the attitude of the Governor and council and issued general orders to prevent repetition of such tyranny. x ~ . In the same year, a conflict between the Governor in council and the Mayor’s court arose in another case. Gila» 9, An Arab merchant was coming to India who was found "bourne boakand he was rescued by some persons. 10.The merchant filed a suit in the Mayor’s court to recover the value of pears alleged to have been extorted from him by the rescuers. 11.The Governor and council suggested to the Mayor’s court that the claim of the Arab jerchant is not valid and the court considered the Act of the Governor in council inst its independence, ignored the advice of the council and upheld the claim of the Arab merchant and on appeal, the decision was reversed by the Governor-in-council by the casting vote of the Governor. MADRAS: 1. In Madras also the relation between the Governor in council and Mayor’s court was not cordial $ the dispute arose from the oath. 2. The Hindu Witnesses were directed to take “Pagoda stead of “Geeta oath”, Many Hindu witnesses opposed it and refused to take pagoda oath and the Mayor court imprisoned those who refused. ¢ Hindus invaacd the Fort and complained to the Governor who ordered them to leases on parole and the court was directed to pay due regard to the religious rites and ceremonies of the natives and to keep within the due bounds prescribed by the Charter of 1726 for which the Governor and council opposed it. 4. Again a conflict was found where the Mayor’s court expressed its view that an out- going Mayor 5. Naish an outgoing Mayor was re-elected but the Governor refused to allow him to take oath of office on the ground that an outgoing Mayor could not be re-elected as per Charter of 1726 and ultimately another Mayor was elected. 27CALCUTTA: 1. In Calcutta also the condition was not better and similar conflict arose between the Mayor's court and Zamindari courts and also between the Mayor's court and Governor in council. 2. They committed blunder by annoying Indians by violating their religious sentiments. 3. In almost all the conflicts the Governor and council took the side of the Indian: their sympathy of the Indians would be of almost importance in suppressing the Mayor's court who dared to challenge the executive for judicial independence. CRIMES AND PUNISHMENTS: Mayor’s Court had no criminal jurisdiction. The Governor and 5 Senior Members of the Council were appointed as Justice of Peace in each Presidency for the administration of criminal justice. They also constituted a Court of OYER, TERMINER AND GAOL delivery and were required to hold quarter sessions. So altogether they possessed complete criminal jurisdiction. JURY TRIAL IN CRIMINAL CASES: ‘The Charter provided that criminal cases in Presidencies be decided with the help of Grand Jury and Petty Jury. The Grand Jury consisting of 23 persons and they were entrusted with the task of presenting persons suspected of having committed a crime. So they are called as Jury of Presentment”. After an offender was apprehended and brought before a justice of peace for preliminary enquiry, the latter examined both the parties and recorded evidence and sent it to the Court of Governor in Council for trial. Before the commencement of trial, all the evidences of prosecution, accusation or indictment was placed before Grand Jury. In case the Grand Jury returned a verdict of “no prima facie case” the accused was acquitted without trial. However if majority of the Jury was satisfied with a propriety of the case, then the prisoner was tried by Petty Jury. If Petty Jury after hearing both sides returned a verdict of ‘guilty’, the accused was sentenced by the Court of Quarter Sessions (Governor and Council), As per the Charter, Company sent to each Presidency list of Statutes, Law books and instructions. This was intended to maintain uniformity in the functioning of Law Courts in all the Presidencies and follow English Law. 28LEGISLATIVE POWERS UNDER THE CHARTER: Until 1726 the law making powers were exercised by the Court of Directors of the Company in England. As they hardly had any knowledge about the local conditions in India, the Laws framed by them were ineffective. Therefore Charter of 1726 empowered the Governor and Council of each Presidency to make byelaws, rules and ordinances for the regulation of the Corporations and inhabitants of the Presidencies and they would also prescribe punishment for the breach of such Laws and Rules. But these rules and ordinances and punishments could not be effective unless approved by the Company’s Court of Directors in England. WORKING OF MAYOR’S COURT OF 1726: From 1726 to 1753 frequent the Government and the Mayor’s Court arises. Governor and Council did not have any voice in the appointment of Mayor as he was elected by The Corporation and Mayor’s Courts were completely independent of the executive Government. The Charter of 1726 adopted the principle of independence of judiciary to a considerable extent which was a positive development in the legal history of India. Some cases referred were: . Arab Merchant’s Case (1746) 2. Hindu Woman’s Case (1730) 3. Pagoda Oath Case (1736) 4 5 . Mayor Naish’s Re-election Case . Mayor and Secretary betting case Re-electing as Mayor Case: In 1734, a conflict arose over the Mayor’s re-election. Naish was re-elected as Mayor but the Governor refused to allow him to take the Oath of Office on the ground that an outgoing Mayor could not be re-elected under the Charter of 1726. Ultimately another Mayor was to be elected, ED r and Secretary Betting Case: Terrain the Secretary to the Madras Government and Mayor Naish met at a dinner party and entered into a bet which Naish lost and refused to pay. Terrain sued him in the Mayor's Court which ruled that Mayor was immune from prosecution. The Government later complained that its secretary had been treated with indignity by the Court. 29CAUSES FOR THE CONFLICTS BETWEEN MAYOR’S COURT ANI GOVERNOR IN COUNCIL: THE DEFECTS IN THE CHARTER OF 1726: 1, The Charter did not lay down in clear terms the Law which the Mayor's Court was to apply. Thus the Court applied the principles of British Law. The Charter did not make any provision for the appointment of qualified legal persons as judges. 2. The Governor and C no respect for the judiciary. So always interfere ayor’s Court. When the Mayor's Courts took that as the violation of judicial independence and avoided them, they were annoyed with them and made every attempt to lower down the judiciary in the public eyes and to punish its judges. . SUPERIORITY COMPLEX OF JUDGES OF MAYOR’S COURTS: They A thought themselves as superior and independent of executive as appointed under the royal authority. This Court was staffed by people having no legal knowledge. So they lacked the discipline of legal training, and at times acted in a manner that would be derogatory to a Court. we 4. Personal hatred, jealousy, prejudices among the Company’s servants manifested itself in the conflicts between the executive and the court. 5. As Indians were unfamiliar regarding British Laws and suffered a lot with the working of the Mayor’s Court, the executive always sided with the Indians. They asked the Courts not to interfere with Indian customs and religions and if any differences among them arises, it was to be settled as per their own customs. 30DISTINCTION BETWEEN THE COMPANY’S CHARTER OF 1687 AND THE CROWN’S CHARTER OF 1726: THE COMPANY’S CHARTER OF 1687 THE CROWN’S CHARTER OF | 1726 The Mayor’s Court established in Madras only. Established in Madras, Bombay and Calcutta. This Court was Company’s Court. This Court was King’s Court i.e. Royal Court. This Court decided all civil and criminal cases. Appeals were to be allowed in the Admiralty Court. This Court decided only civil cases. Govemor in Council were the appellate authority. No. specific rules of laws and procedures. English Law was followed. A Law learned person was appointed in the Court. So it was called Recorder’s Court. There was no such officer in this Court. Some Indians sat as Judges together with English Aldermen in the Court. Out of 9 Aldermen, 7 were British subjects and 2 were required to be subjects of Indian princely states friendly with Britain. The administration of justice was entrusted only to the Mayor’s Court and the Admiralty Court in Madras. Executive had no power in this respect. The Charter mixed executive and judiciary. It granted original criminal jurisdiction and appellate civil jurisdiction to the Governor and Council who were already entrusted with executive powers of Presidencies. 31===> CHAPTER WARREN HASTINGS PLAN OF 1772 AND REFORMS UNDER THE PLAN OF 1774 AND REORGANIZATION IN 1780 GRANT OF DIWANI TO THE EAST INDIA COMPANY: 1. The East India company defeated the Nawab of Bengal in the Battle of Plassey in 1757 and it also defeated the combined forces of Mir Kasim (Nawab of Bengal), Shuja-ud-daula (Nawab of Oudh) and Emperor Shah Alam in Battle of Buxar. These two battles established the company’s might. 1765, Lord Clive was sent from England to act as Governor of Bengal and he fos in to a treaty with the Puppet Mughul Emperor Shah Alam who granted the Diwani "aa Bios tags the company for an exchange of 26 lakhs to be paid by the company to innually. GD 3. During the Mughul period the Nawab and Diwan was the two high dignitaries. The Nawab was responsible for administration of criminal justice and maintenance of military and law and order, while the Diwan was responsible for maintenance of administration of civil justice and collection 4. But the company was much interested in military and consequently the under an agreement the Nawab handed over his right to maintain army to the company in exchange of Rs.53 lakhs rupees to the Nawab annually for his maintenance and also for the maintenance of the military administration. 5, Thus the year 1765 is said to be the turning point of the Anglo Indian History. 6. The company executed its Diwani functions not through its servant but through the Natives under the supervision of company’s officials. ohammed Reza Khan was appointed as the company’s Diwan at Murshidabad and ija Shitab Roy was appointed at Patna. Two Englishmen was also appointed at both the places to supervise the working of these two native officers. 8. But soon the dual system of government was not much useful, because the Indian officials had no effective power in enforcing their decision and also they could not dare to take any action against the English servants of the company. 9. The Company’s English servants misused their powers and exploited the people of Bengal Bihar and Orissa and everywhere only corruption and bribery was prevailing. 10.In 1767, Clive left India and in his place Verelst was appointed as Governor of Bengal and he made several attempts to improve the condition by appointing English servants 32as Supervisors to supervise the collection of Revenue and administration of justice, but however this plan was also frustrated. the Supervisors misused their powers and exploited the people and they had no legal knowledge and administrative experiences and they were given functions beyond their capacities. 12.On account of Famizs in 1771 there was all round hunger and starvation and the company blamed the Indian officials for this situation. 13.The company changed its policy and decided to execute its diwani functions not fough the Indian officials but through the company’s servants. For this purpose Warren Hastings was appointed as Governor of Bengal in 1772 and the revenue collection and civil justices were brought under the direct control of the company’s servants. However criminal justice continued to be in the hands of the Nawab. JUDICIAL REFORMS OF WARREN HASTINGS: 1. As soon he was appointed as Governor of Bengal he took efforts to find out and eradicate the evils of Bengal, Bihar and Orissa. 2. He abolished the system of dual government and executed the company’s diwani functions through the company’s servants. 3. He created a committee having Governor and four council of member to find out the causes of the evils in the existing administration and revenue collection. 4. The committee prepared a first plan known plan of 1772 and this plan is known as Warren Hastings plan of 1772. qq PLAN OF 1772 1. Under this plan The territories of Bengal, Bihar and Orissa were deivided in to districts and in each district an English officer known as s appointed. ‘The Districts was selected as unit of administration and collection of revenue and Collector was responsible for it and separate provisions were given for administration of civil and criminal justice. CIVIL JUSTICE: aeeD In each District a court called Moffusil Diwani Adalat was established and appeals from this court was to be heard by S: iwani. at. Apart from this there was a Small Causes Adalat which was to hear pett 10. 33MOFFUSIL DIWANI ADALAT: . It was established in each and every districts of Bengal, Bihar and Orissa and it was presided by Collector. 2. It was empowered to hear civil cases such as real Mh PeNnet property, inheritance, caste, marriages, debts, disputed accounts, partnerships and contracts. 3. The religious affairs like inheritance, marriages, castes etc were to be decided according to Korans with regard to Muslims and according to Shastras with regard to Hindus. == 4. The decision of this court was final up to Rs.500 and appeals for the cases more than Rs.500 would be sent to Sardar Diwani Adalat. =D SARDAR DIWANI ADALAT: 1, It was established at Calcutta and was empowered to hear appeals from Moffusil Diwani Adalat for all the cases valued more than Rs.500 2. It was presided by Governor and council and was considered as the court of Superior jurisdiction. =D 3. A court fee of 5% was required to be paid on the petition of appeal. SMALL CAUSES ADALAT: ap 1, The Head Farmers of the Parganas were empowered to decide finally for the civil cases valued up to Rs.10. HINAL JUSTICE: ww, — In each district Moffusil Faujdari Adalat was established and appeals from this court were referred to Sadar Nizamat Adalat. Moffusil Faujdari Adalat: 1. It was established at each and every districts of Bengal, Bihar and Orissa to hear all criminal cases. 2. It was presided by Kase ented by two Maulvies, the Maulvies were to expound the law of Kazi and Mufti were to decide cases accordingly. 3. The Collector was to SD orking of the court and it could not pass capital se! cuce without the approval of the Sardar Nizamat Adalat, the highest criminal sent =e 34SARDAR NIZAMAT ADALAT: . It was established at Calcutta and to hear appeals from the Moffusil Faujdari Adalat. poe . It was presided by an Indian Judge called as Daroga-i-Adalat who was assisted by Chief Kazi, Chief Mufti and three Maulvies and they were appointed by Nawab on the advice of the Governor. 3. The Governor and council were empowered to supervise the proceedings of the Sardar Nizamat Adalat and the death warrant was to be signed by the Nawab who was considered as the head of Nizamat Adalat. REVENUE ADMINISTRATION: 1. The collector of the district was to collect land revenue under the supervision and control of Board of Revenue consisting as Governor and council MERITS: 1, The personal laws of Hindus and Muslims were protected. The religious affairs were decided according to Korans and Shastras with regard to Muslims and Hindus respectively. Warren Hastings realized that the personal laws were based on the sentiments and customs of the natives and violation of these laws would cause much annoyance. Thus his step to safeguard the personal law was his wisest step. He made attempt to correct defects of ancient judicial and revenue system without destroying local traditions and customs. He tried to prove that Indians were not slaves and they had their own customs and usages which should be respected and he also helped in preparing a digest of Hindu law for the guidance of civil courts. 2. Under this plan the districts was selected as unit of administration and justice was not costly. 3. The jurisdiction of civil administration imi ministration was well defined. 4. The judges of these courts were Englishmen and they were not aware of personal laws of the natives and this defect was removed by Warren Hastings by appointing native law officers to expound personal laws. @® 5. The commission basis was replaced by court fee which was to be deposited with the Government and not with the judges and thus fair and impartial judges was rendered. Thus this plan was a step in the direction of the impartial and fair justice and a foundation for sound judicial system was laid down by him. He was also praised as ‘Infant Administrator’, especially Lord Cornwallis built up the super structure on the foundation of the sound judicial system. 35DEMERITS: The personal laws were applied to only certain matters like inheritance, caste, marriages ete and thus the application of the personal law was not complete. 2. The facility of the application of the personal laws was allowed only to Hindus and fuslims, but not to other communities eg. C! is etc. inly the Korans and Shastras were to be consulted in deciding the disputes among the Muslims and Hindus respectively, but the personal laws is not confined to Korans or Shastras. Korans is only a source of Muslim laws and similarly Shastras is only a source of Hindu laws. 4. The judges were Englishmen and did not have the knowledge of the provisions of the Koran and Shastras and the appointment of the native officers to assist them were ctiticized by several scholars. The judges were easily misguided by wrong interpretation of personal laws by the native assistants. . The Collector was conferred more powers. He was to collect revenue, decide civil cases and supervise the working of the criminal courts. It was not possible for him to’ pay due attention to all these affairs. There was no separation between the executive authorities for their self interest. . There was no separation between the revenue collection and the administration of the civil justice. The Collector and the governor in council was responsible for revenue 6 collection as well as judicial administration in the district. Under these circumstances it was natural and unavoidable, the collection of revenue on which the collector’s credit and promotion in service may depend. Sir John Shore tried to defend Warren Hastings on the ground that “it is impossible to draw a line between the revenue and judicial department in such a manner as to prevent their clashing”, but Warren Hastings tried to prove that it is difficult, but not impossible to separate judicial administration from revenue collection and also by his subsequent plans he tried to separate the both for a larger extent. Besides Lord Cornwallis was also successful in separating judicial administration from the revenue collection. He followed simple and easier method and did not take the trouble to separate the judicial administration from the revenue collection. He also realized that the plan should be modified and a new plan was prepared on 23" November, 1773 and it was implemented in January 1774. PLAN OF 1774: - This plan was prepared to remove the defects in the plan of 1772. 36CIVIL JUSTICE: 1. The entire territories of Bengal, Bihar and Orissa was divided in to six — having headquarters at Calcutta, Burdwan, Dinajpur, Dacca, Murshidabad and Patna and each divisions consisted of several districts. . In each division a Provincial council was established which consists of four or five English servants of the company. v wo . In each district in place of Collector an Indian officer known as Diwan or Amil was appointed by the Governor General and council on the recommendation of Provincial council. B . He was to act as the judge of the Moffusil Diwani Adalat and the appeals from the Moffusil Diwani Adalat were to be heard by the provincial council. w . The decision of the Provincial Council was final up to Rs.1000, but where the suit is more than Rs.1000 the appeal from the provincial council was to be heard ot Sardar Diwani Adalat at Calcutta. 2 Besides the Provincial council was also empowered to hear cases of original jurisdiction. REVENUE ADMINISTRATION: 1. The Diwan was to collect revenue in districts under the supervision of provincial council and the provincial council was responsible to collect revenue in divisions. 2. The provincial councils were under the control of Board of Revenue. CRIMINAL JUSTICE: ae. The working of Moffusil Faujdari Adalat and Sardar Nizamat Adalat under the supervision of Collector and Governor in council came to an end . 2. The Sardar Nizamat Adalat was shifted from Calcutta to Murshidabad which was to work under the control of Nawab and Mohammed Reza Khan was appointed as New 4 MERITS: 1. The English Collector was replaced by an Indian Officer known as Diwan and thus the judicial administration was put in the hands of Indians. Similarly the working of the criminal courts was also placed in the hands of the Indians. 37. The establishment of Provincial council reduced the burden of the Sadar Diwani Adalat. Under the plan of 1772 it was empowered to hear all appeals valued more than Rs.500, but under this plan cases up heard by the Provincial council. The establishment of Provincial council in each divisions also reduced the hardships of the litigants and made justice cheaper. Under this plan the appeals could be filed before the Provincial council and the litigants need not go to Calcutta from the interior districts. . Under this plan, all cases decided by the Moffusil Diwani Adalats were appealable to the Provincial Council irrespective of their values, while under the plan of 1772 the appeals from the Moffusil Diwani Adalat could lie only in the cases up to Rs.500 and there was no provision for the appeal in cases up to Rs.500. DEMERITS: 1 The Provincial councils were conferred excessive powers. They could not be controlled by the Governor in council at Calcutta. . The separation between the civil justice and revenue collection could not be maintained. Diwans and Provincial council were responsible not only for collection of revenue but also the administration of civil justice. REORGANISATION IN 1780: 1 n wn Under this plan the powers of the provincial council was divested of their judicial functions and they were only to collect revenue and decide revenue cases. . The power to decide civil cases were given to a new court called as Provincial court of Diwani Adalat which was presided by an English servant of the company called as Superintendent of Diwani Adalat. . He was appointed by the Governor-General in council for his life time and could be removed on the grounds of misbehavior. The Provincial Council of Diwani Adalat was given power to decide civil cases like property, inheritance and contract. . It could also refer small cases involving Rs.100 or less to the Zamindar or Public Officer who resided near the residence of the parties. . The decision of the provincial court of Diwani Adalat was final in all suits involving up to Rs.1000 and the appeals could lie to the Sardar Diwani Adalat which consisted of Governor-General and council. 38MERITS: The separation between the revenue collection and judicial functions was maintained and attempts were made to separate the executive and judiciary. DEMERITS: 1. There were only six provincial courts in the whole territories of Bengal, Bihar and Orissa and it was much less than what was required. 2. The judges of the Moffusil Diwani Adalats and the Provincial court of Diwani Adalat were neither experts in law nor properly trained in judicial work. 3. Zamindars or public officers whom the cases involving Rs.100 or less could be referred for decision were to act as Judges without any remuneration, This tempted them to charge fees from the parties for their time and labour. They misused their power for their own interest. 4. The provincial councils were empowered to collect revenue as well as to decide revenue cases. This arrangement has been much criticized. It was not justified to empowered the provincial council which was to collect revenue to decide revenue cases because it was in effect appointing a man a judge in his own cause. 5. The separation between judiciary and executive was not complete. 39CHAPTER-VI SUPREME COURT AT CALCUTTA- ITS COMPOSITIONS, POWERS AND FUNCTIONS INTRODUCTION: The Regulating act empowered the British Crown to establish a Supreme Court at Fort William (Calcutta) by issuing a charter. So British Crown issued a charter in 1774 establishing the Supreme Court of judicature which superseded the provisions the charter of 1753 and resulted in abolition of mayor court of Calcutta. 1) Composition: The Supreme Court was to consist of a Chief Justice and 3 puisne judges to be appointed by the Crown. Only those persons who were barristers of not less than 5 years standing could be appointed as judges. They were to hold office during the pleasure of the Crown. 2) Function: 1. The Supreme Court was a Court of Record. It was conferred extensive jurisdiction over civil, criminal, admiralty, and ecclesiastical cases. It was also a court of equity and therefore, it was given the power to administer justice according to the principles of equity and good conscience. 2, It could regulate its own procedure and make rules for this purpose. These rules could be approved, modified or rejected by the King in Council. 3. The Supreme Court was to nominate three persons annually to the Governor General and Council who would select one of them as Sheriff. 4. The primary duty of the Sheriff was to execute the orders of the Supreme Court and detain in prison the persons committed by the Court. The Supreme Court was authorized to enroll attorneys and advocates. 5. It could appoint sub-ordinate officers but their salaries required approval of the Governor General and Council. The Supreme Court was also authorized to regulate the court fee with the approval of the Supreme Council. 6. It was to exercise, supervision and control on sub-ordinate courts (Court of collector, quarter sessions, court of requests, sheriffs.) It was authorized to issue writs of certiorari, mandamus, Quo-warranto to these courts. 3) JURISDICATION: It can be explained under the following heads: 401) CIVIL JURISDICTION: The Supreme Court was conferred with wide jurisdiction in civil matters. It was conferred original jurisdiction in civil matters. a) This jurisdiction extended to the East India Company, mayor and Alderman of Calcutta. b) His Majesty’s subjects and british subjects residing in Bengal, Bihar and Orissa. ©) Any other person directly or indirectly under the employment or service of the company. 4) the inhabitants of Bengal, Bihar and Orissa if they consented in writing to refer their disputes to the Supreme Court provided the subject matter of the suit exceeded rupees 500. 2) CRIMINAL JURISDICTION: 1, The Supreme Court was made a Court of Oyer, Terminer and Gaol delivery in and for the town of Calcutta. The factory of Fort William and factories sub-ordinate thereto. 2. It employed the services of Grand jury and petty jury for trial of criminal cases of British subjects. The Supreme Court did not have jurisdiction over the native inhabitants of Calcutta and territory of Bengal, Bihar and Orissa. 3. Its jurisdiction extended to His Majesty’s subjects and persons in the service of the company. 4. Significantly, the Supreme Court did not have jurisdiction over Governor General and members of the council for any offence excepting treason or felony. 5. The Governor General, the councillors and the judges of the Supreme Court acted as justices of Peace and held quarter sessions. 6. Besides, the Supreme Court was also empowered to reprieve or suspend the execution of any capital sentence if in its opinion it was a fit case for mercy. In that case, it could refer the case to the British Crown with reasons for recommending mercy. The final decision in this regard was however left to the pleasure of the crown, 3) ADMIRALTY JURISDICTION: 1. The Supreme Court was to be the Court of Admiralty for the territories of Bengal, Bihar and Orissa. In this capacity, it could try all cases ~ civil and maritime and all crimes committed upon vessels, ships, ferries and high seas and off-shores of Bengal, Bihar and Orissa with the help of petty jury consisting of British subjects residing in Calcutta. This jurisdiction extended to all his majesty’s subjects and persons who were directly or indirectly in the service of the company, residing in Calcutta and territories of Bengal, Bihar and Orissa. 4ECCLESIASTICAL JURISDICTIONL: This jurisdiction extended to all British subjects living in Bengal, Bihar and Orissa according to the Ecclesiastical law prevailing in the Diocese of London. Thus it could grant probates of wills to the British subjects within the territories of Bengal, Bihar and Orissa and also letter of administration of the British subjects dying inter-state. It could also appoint guardians and keepers for infants and insane persons and their estates in accordance with the rules prevalent in England. EQUITY JURISDICTION: In this capacity, Supreme Court was to administer justice in a summary manner according to the rules and proceedings of the Chancery court of England. B) The court of Chancery of England was not bound by technicalities of law and could administer justice according to the principles of equality and good conscience. WRIT JURISDICTION: Being a Supreme Court, it could issue writs to court and officers sub-ordinate to it - Court of Collector, Court of requests, Quarter sessions, Sheriff, etc. It could issue writs of certiorari, mandamus, error or procedendo. PROVISION FOR APPEALS: In Civil cases, appeals from the decision of Supreme Court could be taken to the King in Couneil. Its decisions were final in England provided the subject matter in dispute exceeded 1000 pagodas. Such an appeal could be filed within 6 months of the date of judgment. Supreme Court under Regulating Act In criminal cases, the Supreme Court enjoyed absolute discretion to allow or not to allow appeal to the King-in-council. Besides, the King-in-council reserved the right to refuse or admit an appeal as a special case upon the terms and conditions as it thought fit. Cases tried by the Supreme Court: The trial of Nanda Kumar Raja Nand Kumar, a Hindu Brahmin was a big zamindar and very influential person of Bengal. He was loyal to the English company ever since the days of Clive and was popularly called as Black colonel by the Company. Three out of 4 members of Governor General’s council were opponents of Warren Hastings. So Francis, Clavering and Manson instigated Nanda Kumar to bring charges of bribery and corruption against Warren Hastings. In march 1775 Nanda kumar gave a letter of complaint to Francis one of the member of the council that Hastings accepted from him bribery of more than Rs. 100000 for appointing son Gurudas, as the Diwan. Another allegation that Hastings accepted 2.5 lakhs from Munni Begum as bribe for appointing her as the guardian of minor Nawab Mubarak- 42Ud-Daullah. Nanda kumar attached vouchers also. Discussions took place in the council about this. But Warren Hastings opposed this and dissolved the meeting of the council. Majority of the members joined and appointed Clavreing as president of the council. They declared that the charges levelled against Hastings were proved. So asked him to deposit an amount of Rs, 3,54,105 in treasury of the company This event made Hastings a bitter enemy of Nanda kumar. A few months later Nanda kumar was arrested with Fawkes and Radhacharan for conspiracy. In the trial Fawkes was fined but Nanda kumar judgment was reserved because again he was charged for forgery , manipulated by Hastings. A man by name Mohan Prasad charged him for forgery of a bond (1770) related to debt. Supreme Court took this case. Finally judgment was delivered by Impey the Chief justice with the consultation of other judges. Death sentence was given under English Act of 1729 for forgery From 16" June to 4" July 1775 several efforts were made to save the life of Nanda kumar. The defense council wanted to appeal to the King in Council which was rejected by the Supreme Court. Another petition recommending the case for mercy to the British council was also turned down by the Supreme Court. At last Nandakumar was hanged on August 5" 1775 at 8 A.M at coolly bazar at fort William The judgment not only shocked Indians but also foreigners residing in India. Neither under Muslim law or Hindu law was forgery a capital crime. It was considered most unfortunate and unjust. On return to England Impey and Hastings were impeached by the House of Commons for execution of Nandkumar The Patna case (1777-1779): A native of Kabul (Afghanistan) Shahbaz Beg Khan came to India and served in the company’s army for some time and retired. He earned considerable wealth and settled in Patna and married Nadirah Begum. Having no issues, he expressed his desire to adopt his nephew Bahadur Beg as his son and made him the heir of his property. But before giving effect to his wish, he died in December 1776 After his death, both Nadirah Begum and Bahadur Beg claimed his whole property as their own. Nadira Begum asserted her claim to the said property on basis of three documents namely dower deed, gift deed and acknowledgement executed by her husband but Bahadur Beg that he was living with his deceased uncle as an adopted son claimed the property Bahadur Bag first filed petition before the provincial court at Calcutta. Mohammedan law officers Kazi and Muftis heard this case. The provincial council ordered the division of the property into 4 parts. One was given to Nadirah Begum and other 3 parts 43to Bahadur Beg. But Begum did not accept this, She moved an appeal before SadarDiwaniAdalat which consisted of Governor General Warren Hastings and council members, The case was pending for a long time. An action was taken. Then she filed a suit before the supreme court against Bahadur Beg, Kazi and Mufti for assault for entering forcibly into her house and other personal injuries and claimed damages to the tune of rupees six lakhs. The supreme court ordered in favour of her and issued a warrant of arrest against mohammedan officers and Bahadur Beg. Court awarded the damages of rupees three lakhs for the plaintiffs and Rs. 9208 at costs. As there were not able to the pay damages, they were ordered to be imprisoned . They were sent to Calcutta and remind behind bars until the enactment of the Settlement Act of 178lunderwhich they were directed to be discharged. However old Kazi died while being taken to Calcutta. An appraisal of the case 1. Entire judicial work was entrusted to be native law officers of the provincial council as the English judges of the company where quite ignorant about the languages, laws and the customs of the natives 2. Sadar Diwani Adalat at Calcutta (Governor General and council) hardly had any time to attempt to the judicial work as they were mostly occupied with the other works and avenging their mutual rivalries . 3. Supreme court’s contention that it had jurisdiction over Bahadur Beg as he was a farmer of land revenue of the company (So a servant of the company ) does not appear to be correct . A farmer was only a person who paid the land revenue to the company. Only revenue collector was a person employed by the company on regular fixed salary. This created a panic and fear among the native farmers of Bengal, Bihar, Orissa and tried to relive themselves of their farms. The Cossijurah Case (1779-80) ‘There was a clash between Supreme Court and Supreme Council over the issue of supreme court’s jurisdiction over zamindars. Raja Sundaranarayan was zamindar of Cossijurah in the district of Midnapore in Orissa. He was to pay to the company a fixed sum of money as the land revenue annually. He was under a heavy debt to kasinathBabu. Having failed to recover the money from the raja through Board of Revenue at Calcutta, Kasinath filed a debt suit against the Raja in the supreme court at Calcutta. His contention was that Raja being revenue collector was in the service of the company and so came under the jurisdiction of Supreme Court. Supreme court issued a writ of Habeas for the arrest of the Raja but he absconded In the meantime the collector of Midnapure reported the matter to the Governor General and council complaining that the revenue collection in the district is adversely affected 44because of the absence of Raja, So Supreme Council instructed the Zamindar not to obey the supreme court Supreme Court sent sheriff along with 60 men to execute the writ. Zamindar used force and drove away these officers. He even alleged that sheriff's men entered his house, injured his servants, forcibly broke open the doors and committed outrages upon the place of religious worship. So sheriff and his fellows were arrested and kept in confinement for 3 days So the Supreme Court ordered the councillors to appear before them for charges levelled against them for arrest of sheriff and the motive to deprive kasinath of the recovery of his debts from Raja. But Attorney- general advised councillor not to appear before Supreme Court. The Supreme Court felt offended and put the Attormey General of the company north Naylor in prison where he died. It was at this stage that Kasinath Babu withdrew his suit against Raja of Cossijurah and Governor General and council in view of the serious consequences arising out of the case. CASE OF KAMALUDDIN(1775): Kammaluddin was an ostensible holder of a salt farm at Hijili on behalf of Kant Babu, who was the real farmer. In 1775, he was arrested by the order of the Revenue Council of Calcutta on the ground that he defaulted payment of arrears or revenue. He was committed to prison without bail. Kamaluddin approached the Supreme Court and obtained the writ of Habeas Corpus. The Supreme Court directed to set him free on bail and it even granted him the bail. The judges further directed that he should not be imprisoned again until the real farmer Kant Babu had been called upon to pay the arrears. The members of The Supreme Council expressed their resentment against this. According to them, the Company was confirmed as Diwan of Bengal by the Regulating Act, so the council had exclusive jurisdiction. The Supreme Council ordered for the imprisonment of Kamaluddin (without paying attention to the order of the Supreme Court). But Governor General Warren Hastings refused to support the proposed steps of the Supreme Council. This case was an eye-opener disclosing defective provisions of the Regulating Act due to which the Supreme Court and the Council came into conflict. The cause for the conflict relating to jurisdiction and powers of the Supreme Court are as follows: 1. The difficulty arose because the various terms like ‘British Subjects’, ‘His Majesty's Subjects’,* persons employed by or directly or indirectly, in the service of the Company’ or ‘the persons employed by, or directly or indirectly in the service of any 45of his Majesty’s subjects’ etc. were not defined. So the whole jurisdiction became vague. . It was not clearly stated whether Hindu, Muslim, Christian or the English law was to be followed. But the Judges knew only English law. The Supreme Court replaced the Mayor’s Court which administered English Law and therefore it appears that the ‘Supreme Court was to administer the English law. . The Supreme Court also claimed to have jurisdiction over the revenue collectors of the Company for the wrongs done by them. E.g.: Kamaluddin case. . The proceeding of the Supreme Court proved to be very expensive. Even the preliminary proceedings in a case caused heavy expenses, because litigants were required to engage an English Barrister and had to cover long distances to attend to their cases. In Criminal matters, the Supreme Court invariably followed the provisions of the British Criminal Law which were quite foreign to the Indians. The substantive provisions of the criminal law were also punitive and harsh, For minor offences, a person could be hanged which was an added cause of resentment against the Supreme Court by the Indians, E.g.: Rajan Nandhakumar Case. . Even in civil cases, their technical procedures had undesirable features. In a case being filed by a plaintiff after swearing an affidavit to the effect that the defendant fall within the jurisdiction of the court, the court would issue ‘writ of habeas’ ordering the arrest of the defendant with provision to release him on bail. But the amount of bail had been very high which the defendant failed to pay, he had to remain in prison till the initial plea regarding the Court’s jurisdiction was disposed of. This rule of procedure appeared very much oppressing to the Indians. . There was much uncertainty and confusion as to the relation and jurisdiction of the Supreme Court and the Company’s Adalats. . There was uncertainty and confusion as to the writ jurisdiction of the Supreme Court. The Act of settlement was passed in 1781 to remove the defects of the Regulations Act, 1774.n w + wn Merits of the Supreme Court: - While the judges of the Mayor’s Court were mostly the English servants of the Company and quite ignorant of the legal system, the judges of the Supreme Court were professional lawyers appointed by His Majesty. . The Supreme Court exercised Common law, Equity, Admiralty, Ecclesiastical jurisdictions and an improvement even on the judicial system of England. . The Charter of 1774 made praise-worthy attempt to make the Supreme Court independent of the Executive council. . This court was empowered to superintend the Court of Collector, Quarters sessions, Court of Request, Sheriffs. For this purpose, it could issue writs in the nature of certiorari, Mandamus, quo warranto. This shows the Court was conferred on with wider jurisdiction. . The judiciary was made independent and got divorced from the executive. 472 x ~ CHAPTER-VII ACT OF SETTLEMENT,1781 NEEDS AND OBJECTS: This Act was enacted to remove the defects of the Regulating Act. The conflict between the Supreme court and Supreme council was very serious and a petition against the Supreme court’s activities in Bengal was submitted to the British Parliament by the Supreme Council. . Besides a petition signed by Zamindars, the company’s servants and other British servants inhabiting in Bengal was also sent to the British Parliament against the ‘Supreme court. The British Parliament appointed a Parliamentary Committee to make inquiries in to the matter and prepare a report. . The Committee presented a report on the conflict between the Supreme council and the supreme court in 1781 and based on that report the British Parliament passed as Act in 1781 known as Act of Settlement,1781. . The main defect of the Regulating Act,1773 was that its provisions were very vague and that was the cause of the conflict between Supreme Court and Supreme council. It failed to define with certainty of the jurisdiction of the Supreme court and its relation with the Supreme council and the company’s court and on account of it they both interpreted the provisions of the Act to their own favour. . Therefore the Act of Settlement,1781 was passed to settle the disputes as to the jurisdiction of the Supreme court and its relation with the Supreme council and company’s court. ). The preamble of this Act makes it clear that the Act was passed to amend the Regulating Act, 1773 and to provide relief to certain persons imprisoned at Calcutta in Bengal under the judgment of the Supreme court in Patna case and also to indemnify the Governor-General-in-council of Bengal and other officers who had acted under their orders or authority. 48PROVISION OF THIS ACT: L RESTRICTIONS ON THE JURISDICTION OF THE SUPREME COURT: 1. This Act provided that the Supreme court had no jurisdiction in any matter concerning the revenue or acts ordered or done in its collection according to the usage or practice of the country or the regulations of the Governor-General in council. 2. Thus this Act did not allow the Supreme court to interfere with the matters of revenue or in any act done in collection. w . This Act further provided that no person could be taken within the jurisdiction of the Supreme court merely because he happened to be a land owner, land holder, farmer of land revenue or zamindar collecting revenue for the company ete. > The Act provided that the Governor-general and council would not be subject to the jurisdiction of the Supreme court for any Act done by them in their public capacity and acting as Governor- general and council. IL. THE ACT OF SETTLEMENT VIRTUALLY RESTRICTED THE JURISDICTION OF THE SUPREME COURT ONLY TO TOWN OF CALCUTTA: This Act provided that the Supreme court would decide all actions and suits against the inhabitants of Calcutta provided that their inheritance and successions of lands, rents and goods and all matters of contract and dealing between party and party would be determined in the case of Mohammedans by the laws and usages of Muslims and in case of Hindus by the laws and usages of Hindus and where only one of the parties would be a Muslim or Hindu by the laws and usages of the defendants. Ill. RECOGNITION OF THE COURTS OF THE COMPANY: 1. This Act gave recognition to the company’s provincial courts. The Sardar Diwani Adalat was accorded recognition as a court to hear appeals from the decisions of the Mofussil courts in civil cases. 2. Thus the appellate jurisdiction of Sardar Diwani Adalat was confirmed by this Act. 3. The judgment of Sardar Diwani Adalat was to be final and conclusive except upon appeal to the king in council in civil suit of the value of 5000 pounds. 4. The status of the Sardar Diwani Adalat was thus made equal to that of Supreme court and he was empowered to act to hear and determine cases of all offences, abuses and extortions committed in the collection of revenue and to punish the same according to its discretion. 49IV. POWER TO FRAME REGULATIONS FOR THE PROVINCES: 1. The Governor-General-in-council were also empowered to frame rules and regulations for the provincial courts and provincial councils. 2. The copies of such regulations were to be sent to the court of Directors and the Secretary of State within 6 months of their passage. 3. The king-in-council could disallow or amend any such regulation within 2 years. 50CHAPTER-VIIL JUDICIAL MEASURES OF LORD CORNWALLIS 1787,1790 AND 1793 INTRODUCTION: 1. Lord Cornwallis succeeded Warren Hastings in 1786, The Governor- General ship of Lord Cornwallis which extended from 1787-1793 constitutes a very remarkable and a highly creative period m Indian legal history. 2. Lord Cornwallis brought with him the instructions from the Court of Directors, dictated with a view to carry out the object of the Parliament aimed at securing inter alia the happiness of the native population. He bought reforms in revenue, military, civil, criminal judicial system in India in his tenure. 3. Lord Cornwallis introduced the concept of administration according to the law for the first time in India and it was due to his devotion to the concept of justices that he recognised and over haled the Adalat system left by his predecessor in such a way that he won the praise of all. JUDICIAL PLAN OF 1787: 1. He was dissatisfied with the exciting system of the administration of justice. Cornwallis reformed the whole system of civil and criminal justice by the method of trial and error. 2. In the judicial system Cornwallis introduced reforms in three periods in 1787, 1790 and 1793 respectively. 3. The Directors gave instructions to Cornwallis to bring simplicity, economy and purity into the judicial system. Revenue and judicial functions were united. 4. The number of districts were reduced from 36 to 23. Each district was in the charge of a collector, an Englishman. The collector was responsible for the collection of revenue. 5. He was also to act as judge in the Mofussil Diwani Adalat of the district and decide civil cases. He also got magisterial powers. His revenue functions in the revenue court known as the Mal Adalat APPEALS: 1, From the collector’s revenue court, first appeal goes to the Board of Revenue at Calcutta and final appeal goes to the Governor in Council on the executive side. SI2. The collector followed local customs and usages while dealing with the succession to zamindaris ete. Appeal from Mofussil Diwani Adalat lay to Sadar Diwani Adalat in matters more from 1000 rupees. 3. Sadar Diwani Adalat consisted of the Governor General and members of his council. They were assisted by native law officers. Where the valuation of suits was 5000 pounds or more a further appeal was allowed to the king in council in England 4. The collector also acted as the magistrate in the district. In this capacity he was to arrest the criminals and send them to Mofussil Diwani Adalat for the trial. 5. The criminal powers of the collector as the magistrate increased dealing affray(breach of peace) and inflicting punishments not exceedingl5 strokes or imprisonment not exceeding 15 days. However in serious cases, the offenders were committed to the Mofussil DiwaniAdalat OFFICE OF THE REGISTRAR: 1. In addition Indian Registrar was appointed in each district civil court to try petty cases up to Rs.200, Decrees passed by the Registrar was countersigned by the Collector. 2. As per the judicial reforms of 1787 Cornwallis united the judicial office and the administration in the hands of one Englishman i.e. the Collector Defects: 1. The collector was over empowered 2. The collector was more interested in revenue than in the administration of justice 3. The justice was made subservient to the needs of the revenue collection JUDICIAL PLAN OF 1790 1, From 1786 to 1790 , Cornwallis wanted to modify criminal administration. Robberies, murder and other crimes relating to life and property of the native were increasing . 2. He found two causes. One is defective state of the Mohammedan criminal law. Secondly defects in the constitution of the trial courts due to which they failed to deal with the criminals 52w = . Cornwallis abolished the authority of the Nawab over the criminal judicature. The Governor General and member of his council presided over Sadar Nizamat Adalat. . They were assisted by Chief kazi of the province and two Muftis who expounded the law and issued Fatwa(Islamic legal pronouncement issued by an expert in religious law) . Full record of the court was maintained. . Neither parities nor their lawyers were allowed to plead and present their cases before the court. The court decided cases in appeal on the basis of the report of the trial magistrate, proceedings of the circuit court and written pleading and the defence of the parties. . At this time the Chief kazi and Muftis assisted the Appellate court in deciding the cases. . Mofussil FaujdariAdalats were abolished. The whole Diwani area was divided into four divisions of Calcutta, Murshidabad, Dacca, and Patna. . In each division a criminal court was established which was called the court of Circuit. Each court of circuit was presided over by two covenanted servants of the company who were Englishmen. This was a moving court and the appeals laid down in the Sadar Nizamat Adalat at Calcutta. Magistrate court was the lower criminal court. It tried and punished criminals in petty offences. Magistrate was to send the criminals to the court of circuit for trial and punishment and monthly report to the SadarNizamatAdalat. REFORMS INTRODUCED IN MOHAMMEDAN CRIMINAL LAW: 1. Lord Cornwallis made the following reforms in the Mohammedan criminal law and all Adalats were directed to decide cases according to the following modified Mohammedan law . The reforms were undertaken by the government of Cornwallis in the area of criminal justice in 1790 shows humaneness . In determining the punishment to be inflicted for the crimes of murder, the intention of the parties rather than the manner of instrument employed, should be taken into account }. The punishment of mutilation were abolished and imprisonment and hard labour for 14 years and 7 years were substituted for the loss of two limbs and that of one limb respectively 335. The law of evidence were modified so as to make provision that the religion would not be a bar to be a witness and thus the rule that a Hindu could not be the witness against the Mohammedan was abolished 6. The relation of the murdered person could not grand pardon to the offender so as to do away with the trial 7. The Sadar Nizamat Adalat could pass death sentence instead of grating blood money to the heir as provided under Muslim law 8. Abolished the practice of attachment of property to those committed to stand their trials for criminal offence JUDICIAL PLAN OF 1793: A set of regulation, which were prepared by Comwallis were known as Cornwallis code. They dealt with the commercial, civil and criminal justice, with the police and with the land revenue Separation of Judicial and Revenue functions: In 1793 Mal Adalator revenue court was abolished. The trial of these suits was transferred to the Mofussil Diwani Adalat. The collector was in charge of the revenue. Judicial powers were given to the Diwani Adalat Reorganisation of the civil courts: 1. Cornwallis appointed 28 judges in the civil courts in the district and established 4 courts of circuit which were civil courts of appeal. 2. The four courts of circuit were called the provincial court of appeal having four headquarters at Patna, Dacca, Calcutta and Murshidabad. Each of them presided by three covenanted servants of the company. 3. These courts were empowered to hear appeals from the district Diwani Adalats. In cases involving sums less than Rs.1000 their decision was final. Where the amount exceeded Rs.1000, a second appeal was allowed to the SadarDiwaniAdalat. If the valuation of the suit was 5000 pounds or more, a further appeal was allowed to king in council. 4. In each district, Sardar Amins and Commissioners were appointed to decide the cases up to Rs.50. they were known as Munsifs. The Munsifs were selected out of the landholders or the agents who were expected to do the job honorary and were getting some commission on the sums involved in the litigation. Indians were allowed to be Munsifs.Native law officers: They were authorised to assist all the courts by expounding the Hindu and Mohammedan laws in cases like marriage, inheritance, caste, religion, wages and institutions. Native law officers were appointed by the governor general in council Courts authorised to control executive machinery: The injured party had a remedy to approach the court against corruption and excesses of the executive officers Abolition of the court fees: Cornwallis abolished the court fees from the litigants Reforms in the criminal courts: The magisterial powers of the collector were taken away and the judges of the DiwaniA dalat were empowered to exercise the jurisdiction. The judges exercised magisterial powers. Provincial courts and the circuit courts were united in the civil and criminal matters Legal profession: Cornwallis realised the importance of the well organised and regulated professional lawyers. Those who joined the legal profession were given Sanad certificates after they qualified in the prescribed minimum requirement of the education and honesty Uniform pattern of regulation: It was made necessary to divide each regulation into sections and sections were divided into sub sections and clauses, which were duly numbered in serial order. It was made compulsory to keep a complete and regular code of all regulations passed in each year. It facilitated their ready reference while administering justice. It enabled the members of the legal profession and the public to know what the law was on a particular point. This process of the collection, of regulations, periodically in the set form, introduced certainty and uniformity of law Permanent settlement of land revenue: The zamindars were regarded as land owners. They were required to pay 9/10 of the revenue to government through the collectors and the Talukdars or those holding less land were required to pay directly through sub collectors. Efforts were made to protect the cultivators and ryots from oppressions and corruption of revenue officers. 55Merits: 1. The separation between the judicial and the revenue functions were maintained 2. The separation between the judicial and the executive functions were maintained to some extent 3. The organisation of the courts was improved 4. Provincial court of appeal were established for the first appeal 5. Legal professions, for the first was organised in India 6. Court fee was abolished Demerits: 1. The judicial arrangements of 1793 were expected to caste an additional sum of four lakhs of rupees of the company 2. The abolition of the court fee resulted in a great increase in the litigation 3. The appointment of English judges only led to the failure of administration of justice on account of their ignorance of the customs and traditions of the country 4, An anxiety to make the system perfect resulted in making it complicated and encumbered John strachy said that “although much has been done by warren Hastings to perform and organize branches of the public service, the main foundation of the administration of judicial system in India was laid down by Comwallis” Cornwallis reforms in 1787 aimed 1. Economy 2. Modification 3. Purification 1790 reforms introduced criminal justice and 1793 reforms aimed at separation of revenue from judiciary. 56UNIT-II CHAPTER-I [AL SYSTEM OF ADMINISTRATION OF JUSTICE AND AMALGAMATION OF COURTS INTRODUCTION: Prior to the passing of the Indian High Courts Act, 1861, there existed dual system of Courts in India, namely the Crown’s courts and the Company’s courts. The Supreme Courts established in the Presidency towns of Calcutta, Madras and Bombay were the Courts of British Crown while the Adalats established in the mofussil areas were the courts of the East India Company. They had two different sets of organizations jurisdiction and powers; which created great confusion and uncertainty. They mainly differed in the following aspects : 1) The Supreme Courts consisted of professional lawyers who were Barristers of at least 5 years standing as Judges, but the Judges of the Company’s Adalats were mostly lay persons without any professional or legal experience. 2) The Judges of Supreme Court held office during Crown's pleasure whereas the Judges of Company’s Adalats held office during Company’s pleasure. 3) There was no hierarchy of courts in Crown’s court but a regular hierarchy of courts (Civil & Criminal) in company’s judicial arrangements. The Sadar Diwani Adalat and Sardar Nizamat Adalat of the Company had only appellate jurisdiction but Supreme Courts had both original and appellate jurisdiction. 4) Initially, Supreme Courts applied English Law. The Company's courts applied native laws in cases relating to inheritance, succession, contracts, etc. However, consequent to the passing of the Charter Act of 1833, Supreme Court was also bound by the regulations passed by the Governor-general-in-council. 5) _ The Supreme Court mostly followed English law of evidence whereas the Company’s courts mostly followed the customary law of evidence as derived from Hedaya and applied Anglo-Mohammedan law in deciding Criminal cases. The uncertainty about the jurisdiction & the law applicable made Sir Charles E. Grey, the Chief Justice of the Supreme Court at Calcutta to emphasize the need for fusion of these two rival courts, 57