EAST INDIA COMPANY

1. At the end of the 15th century some European nations came to India as trading merchants.

In year 1498, Vasco Da Gama, a Portuguese, discovered the passage to India round the

Cape of Good Hope and he landed at Calicut on the Malabar Coast.

2. The Dutch were the first in this field and English merchants followed them. The Danes

came next but they were few in the number.

3. The first Englishman to set foot on the Indian soil was Thomas Stephens. He set sail to

India from Lisbon on the 4th April, 1579 and reached Goa in October 1579.

4. Though the French earlier voyages to India, the foundation of French Trade were laid by

Colbert only in the middle of the seventeenth century. The purely commercial attitude of

foreign traders was suited to the conditions then prevailing in India. But with the

weakening of the Mughal power in the 18th century.

5. All they made their own kingdom and fought the war for dominion. The English East

India Company finally emerged victorious and developed its area of influence and finally

established its empire in India.

CHARTER OF 1600 A. D. :EAST INDIA COMPANY

1. The English came to India in 1601 as a “body of trading merchants” on 31st December,

1600 queen Elizabeth I granted Charter to the Company which incorporated the London

East India Company “to trade into from the East Indies, in the countries and parts of Asia

and Africa … for a period of fifteen years … subject to a power of determination of two

years notice if trade was found unprofitable”.

2. The charter of 1600 AD had been passed by British Queen Elizabeth-I on dated 31 Dec.
1600. In this Charter included the name of corporation, size, constitution, rights and

liabilities.

3. Name- The Governor and Company of Merchants Trading into the East Indies. Thus the

company became a juristic person with exclusive privilege of trade with the East Indies.

4. The same Charter further granted legislative power to the Company “to make by laws,

ordinances etc. for the good government of company and its servants and to punish

offences against them by fine or imprisonment according to the laws statutes and customs

of the Realm.

5. Duration of Company: i) the 15 years was given to this company for trade. ii) Meanwhile

the company is running in the loss then the British Govt. will withdraw legal recognition

and gaining profit that can be extended 15 year more.

6. But in year 1609 the Company obtained the extension benefit and some other facility

availed also.

7. Territorial extension of trade- by this Charter company was allowed to trade from cape

good hope to bay of Magellan, India, Africa, Asia, America, etc.

8. Monopoly of Company- if any person started or start the trade without prior permission

Company as well as Queen will be punished with fine, imprisonment, forfeiture of ship

and goods or same punishment as queen so think fit.

9. Management and administration- Company consisted with 24 share-holders, court of

directors and Governor. The Court of Directors misuses the post and unexpected

performance the majority share-holders could removed him.

10. This east India Company had become the legal personality and enabled to keep the

common seal and its use.

11. Right making law- i) the company was permitted to make general laws. It was first time

where any non-Governmental body authorized to make laws. Ii) The company was

allowed by Charter that it could give simple imprisonment fine and stroke and physical

punishment for maintaining the law and orders of company.

12. But Company was prohibited to make laws on following cases:

i) Murder, treason and dacoities

ii) Company made laws must be justifiable and reasonable

iii) Company made laws will be not inconsistent with parliamentary laws, orders of

British Empire, customs and usages.

13. Capital of Company- i) Total capital of Company was £75373.

ii) Cost of ship £39771

iii) Cost of materials £6860

iv) Cost of other items £28742

14. On 31st May 1609 James I granted a fresh charter to Company which continued its

privileges and perpetuity, subject to proviso that they could be withdrawn after three years

notice.

15. The Company was also authorized to continue the enjoyment of all its privileges, powers

and rights which were earlier granted to by the Queen Elizabeth under the Charter of 1600

C.E.

Later on 14th December 1615 the King authorized the Company to issue such

commission to its Captain subject to one condition that in case of capital offence, e.g., willful

murder and mutiny, a jury of 12 servants of Company will give the verdict. In 1618, Sir

Thomas Roe, Ambassador of James I, succeeded in gaining the Emperor's favor and the
English Company entered into a treaty with the Mughal Emperor. The Mughal Emperor
granted

the right of self-government to the English. This treaty proved a turning point in the legal
history

of India as the English Company

secured various privileges from the Mughal Emperor. It

provided:

(i) That the disputes amongst Company's servant will be regulated by their own tribunals.

(ii) That the English people will enjoy their own religion and laws in the administration of

Company.

(iii) That the local native authorities will settle such disputed cases in which Englishmen and

Hindus or Muslims were the parties.

(iv) That the Mughal Governor or Qazi of the relevant place will protect the English

people from all sorts of oppression and injury.

The President and members of his Council at the Surat Factory were working as executive

officers of the Company. They were also having judicial authority over English people as the

Indian Emperor allowed them to be governed by their own laws.

CHARTER OF 1661 C.E.

The Company spent 60 years of trade in India and facing of problem control over that the
Englishmen who were not the workers of company. But they were trading in Indian Territory
and were residing in British colonies. Therefore, the company put on the demand before the
British King to make such legal instrument for controlling their colonies and its institutions
and penalize to that person who were interloper (law breakers).
The CompanyÉs trade was growing continuously in India. Apart from this company was
taking interest in political conflicts and took benefits of internal rebels and splitting. The
British King Charles II realized the weak condition of Indian rulers. The income of the
Company was very beneficial to British fund and it was become necessary to give extra
facilities. The growth of income was depended on the legal adjudication system. With view
of all things the Charter of 1661 had been issued on third April, 1661. So, that it was called
the judicial Charter.

The Charter of 1600 C.E. had become a milestone and it was first step to establish the
Judicial Court in British India. This Charter entrusted law making power into the Company.

THE MAIN FEATURE OF CHARTER OF 1661 AD

1. Right to Administration.- i) the Charter empowered to the Company to administrated

over the Fort, Colonies and cities. If it is expedient to maintain the administration could

fought the war with Indian local King and could make the peace treaty. ii) Company was

authorized for that if any person who interferes in the trade monopoly of Company be

sent to Britain for starting litigation.

2. Appointment of Officer: i) Company was authorized to appoint the Governor and

officers for judicial administration over all subjects as well as workers of Company. ii)

Every person equally punished for the breach of law and orders of Company.

3. . Security. - i) Company was enabled by this Charter that it could keep the armed forces,

weapons, and fighters ship for itself security. ii) Company could keep the commander and

other officers who were suitable for Governor and his Council and they were convenience

for trading purposes.

4. Judicial Administration.- Following rights were given to Governor and his Council:

That they could adjudicate and execute accordance with the English law in cases which

is there under:
a) Cases concerned with company,

b) Matters within the limits of Company, and

c) All the cases of civil and criminal nature.

5. The direction was given by this Charter that the governor and his Council will apply the

English law in all cases. Those Indian who were residing in their colonies the also will be

governed by this English law. It was very arbitrary compliance of English law and orders

of upon the Indians. That was very undesirable.

6. Punishment. - i) the Charter of 1600 AD provided very simple punishment. But the

Charter of 1661 enabled to Governor and his Council to penalize with the punishment of

hanging in the heinous crime.

ii) Wherever the Governor and his Council was not constituted the accused was sent for

nearby Governor and his Council or sent to Britain for trial.

ADMINISTRATION OF JUSTICE IN SURAT –

The East India Company established its first factory in India at Surat in 1612 during the time

of Mughal Emperor Jahangir. In 1615 the Mughal Emperor on the pleading of Sir Thomas

Roe issued a Firman, the Mughal Emperor allowed the Englishman to live according to their

own religion and laws and to settle dispute among themselves by their president, however the

disputes between on Englishman and an Indian were to be decided by the local Indian courts.

Constitution and Functions of Factory- The factory was administered by a President and

Council who were appointed by the Company. The decisions of the majority of the members

of the council were the decisions of the Company. Apart from the exercising their powers for

trading purposes the President and his Council also had the power to administer law and
justice. English people were governed by a dual system of laws namely:-

(a) In their own matters by the laws of England; and

(b) In matters with the Indians by the native laws of this country.

The Surat settlement of the Company remained in prominence until 1617. Due to the transfer

of the seat of the president and council to bombay in that year, Surat lost all its importance

for the country.

SETTLEMENT IN MADRAS BEFORE 1726-

In 1639 Francis Day acquire a piece of land from a Hindu Raja for the East India

Company and constructed a fortified factory were Englishman and other Europeans and

therefore the area of the factory came to be known as while town and the people residing in

the village Madras, Patnam were mostly Indians and therefore it came to be known as Black

Town. The Whole Settlement Consisting of white town and black town came to be known as

Madras. In judicial administration in Madras divided in 3 stages. First, Second and Third.

FIRST STAGE (1639 to 1665) –

White town before 1665 Madras was not presidency town and it was subordinate to

Surat. The administrative head was called ‘Agent’ and he was to administer the settlement

with the help of Council. The serious criminal cases referred by them to the Company’s

authorities in England for advice. But there was defects the judicial power of the agents and

council was vague and indefinite and much delay also, they did not have any elementary

knowledge about law. They were Merchant. There was no separation between executive and

judiciary.

The president of the Surat factory and members of His Council constituted a court to

decide dispute between the Englishman interest in accordance with their own laws and
customs. They were to decide both civil and criminal cases.

Capital offences dealt by a jury there was no separation between executive and

judiciary. The president and the members of his council who were to decide cases and

administer justice were merchant. They did not have even elementary knowledge of English

law.

The cases were decided by them according to their wisdom, commonsense. And the

native judges were corrupt bribery was rampant. They had no request for law and justice.

Surat was the chief trading center till 1687. But there after it lost its importance because in

1687 the headquarters of the president and council were transferred from Surat to Bombay.

BLACK TOWN –

The old judicial system was allowed to function there was a village head man known

as Adigar or Adhikari who was responsible for the maintenance of Law and Order. Adigar

administered justice to the native at the Choulby Court. According to the long established

usages, Choulby Court was court of a petty cases. The Company had no power to inflict death

sentences under the Charter of 160 and the agent in Council could inflict such a sentence only

under the authority of local sovereign. The appeals front the Choultry Court were to be heard

by the agent in Council. An Indian native named Kannappa was appointed Adigar but he

misused his power and consequently he was dismissed from the office and the English
servants of the office and the English servants of the company were appointed to suit at the
Choultry court.

SECOND STAGE – (1665 – 1683) –

Although the charter of 1661 provided that the governor and council could decide every

matter according to the laws of England, nothing was done until 1665, when the Dawes case
arose. In 1665 one Mrs Ascentia Dawes was charged with the commission of Murder her

slave girl and the Agent- in – Council referred the case to the Company’s authority in

England for advice. After raising the status of agent and Council of the factory at Madras to

try Mrs. Dawes with the help of Jury and an unexpected verdict of not guilty was given and

consequently Mrs. Dawes was acquitted. Later on 1678 the whole judicial administration was

re-organized. The judicial administration in both the towns was improved. In 1678, the

Governor and Council resolved that they would sit as Court for two days in a week to decide

cases in civil and criminal matters with the help of jury of twelve men. The court was called

as the High Court of Judicature. This Court decided important cases in civil and criminal

matters and also heard appeals against the decisions of the Choultry Court.

WHITE TOWN –

The court of Governor and Council was declared to be the High Court of Judicature. It

was to hear all case of the inhabitance of both towns with the help of jury and also hear the

appeals from the Choultry Court. It was decide cases according to English Law. The Court

was to meet twice a week.

BLACK TOWN –

The Choultry Court was also re-organized. The number of the judges was increased

from 2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court for 2

days in each week. The Choultry Court was empowered to hear petty criminal cases. It was

also empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with

the consent of the parties.

THIRD STAGE (1683 – 1726) ADMIRALITY COURT –

In 1683 King Charles II issued a Charter. It empowered the Company to establish

Courts of Admiralty in India. The Court of Admiralty was authorized to try all traders who

committed various crimes on the high seas. The court was empowered to hear and determine

all cases concerning maritime and mercantile transactions. The court was also authorized to

deal with all cases of forfeiture of Ships, Piracy, Trespass, Injuries and Wrongs. It was stated

that the court would be guided by the laws and customs of merchants as well as the rules of

equity and good conscience in the task of administration of justice.

The provision of the Charter of 1683 was repeated by James II in a charter issued in

1686. On 10th 1686 the court of admiralty was established at Madras John Grey was

appointed judge of the court and to assist him 2 other English man were appointed as his

assistants on 22nd July 1687. Sir John Biggs who was a Professional Lawyer learned in Civil

law was appointed as Judge Advocate in Chief Judge of the Court.

Thereafter the Governor and Council relinquished the judicial function and ceased to

sit as court. The Jurisdiction of the Admiralty court was not confined to Mercantile and
Maritime Cases. It also decided both civil and criminal cases. Further it heard appeals from

the Mayor’s Court. Thus it became a General Court of the Settlement. The Admiralty court

was functioning regularly till 1704, but thereafter it ceased to sit on regular basis and

gradually it disappeared, and its jurisdiction was transferred to the Governor and Council.

MAYORS COURT –

In the year 1687 Company established Madras Corporation and Mayor’s Court

was the part of this corporation. In the year 1686 Madras government levied a house tax on

the Madras City population to repair the City wall. But people of Madras, Local people did

not pay tax and Company faced problems and difficulties to collect tax, after this company

decided that to make the tax collection easy a body should be formed consisting of English
men as well as Local Indians population so it will become easy for the company officials to

collect the tax.

The corporation came in to existence on September 29 1968 which consists of a one

Mayor, 12 Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will

be elected from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected

by them.

The Alderman and Burgesses got the power to remove the Mayor if he is unable to

perform his duties, only Englishman becomes the Mayor. The Alderman hold the office as

long as they stayed in Madras City indirectly they hold the office for life long. Mayor,

Burgesses holds the power to remove the Alderman from office also if he did not perform

well. The charter appointed 29 Burgesses and then remaining Burgesses were appointed by

the Mayor and Alderman. Among 1st 60 Burgesses the caste head were selected as the

Burgesses.

This was the nature of 1st corporation the Mayor and three Senior Alderman were to

be the justice of the peace. The Mayor and Alderman were to form a court of record which

was authorized to try civil as well as criminal case. This court was known as Mayors court.

THE CHOULTRY COURT –

The old Choultry Court was recognized and allowed to continue by the Governor. The

number of Judges was increased to Three – Two Judges were required to preside over the

trail of cases. The Court met 2 days in each week. The court was empowered to try civil cases

up to 50 Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3 Rupees) and

petty criminal cases. The High Court of Judicature was authorized to hear appeals from

Choultry Court.
Conclusion:-The overall picture of the administration of justice in Madras was not very good

in these early stages. The system suffered from many drawbacks. The most outstanding of

them are the following:-

1. Absence of proper judicial system.

2. Uncertainty of laws.-The Courts and the people did not know the law applicable to

them and their disputes.

3. Lack of facilities in the jails.-The inmates lived in inhuman conditions.

4. Unfair trial.-The English principles of fair trial such as the principles of natural justice

and benefit of doubt to the accused were not observed.

5. Severe punishments- usually the punishments were barbarous and inhuman. They

were based on the mixed idea of deterrence and prevention.

SETTLEMENT IN BOMBAY –

Portuguese were the 1st European to acquire the island of Bombay in 1534 from the King of

Gujarat in 1661. Portuguese King Alfonsus VI transferred the island to Charles II as Dowry

on the marriage of his sister Catherine with the British King. Charles II transferred it to the

East India Company in 1668 for an insignificant annual rent of 10 pounds. Before 1726, the

Judicial system the Island of Bombay grew in Three Stages –

1) First Stage – (1668 – 1683)

2) Second Stage – (1683 – 1690)

3) Third Stage – (1781 – 1726)

First Stage 1668 to 1683 –

During this period two judicial systems were established. The first of them was established in

1670. According to this, Bombay was divided into two divisions. Each division had a court
consisting of five judges. The Custom Officer of the Division was the President of the Court.

Some of the judges in these courts were Indians.

The jurisdiction of this Court extended to petty criminal cases, e.g. thefts involving the stolen

property upto 5 xeraphins and similar other cases. The civil cases which came before this

court, were also of petty nature. It had no jurisdiction to decide cases involving more than

200 xeraphins. Appeals against the judgements of this court could be filed in the court of the

Deputy- Governor and Council.

The Deputy-Governor and Council worked as a superior court having both original and

appellate jurisdiction, in all civil and criminal cases. In the civil cases, it had the jurisdiction

to entertain matters of the value exceeding 200xeraphins. All the serious offences, which

could not be entertained by the Divisional Court, were tried by this court with the help of

jury.

The judicial system established in 1670, was quite elementary and primitive. No disctinction

was made between the executive and the judiciary. Nor was there any provision for a
lawyermember in the courts. Many requests were made by the Deputy- Governor to the
company for providing a man learned in law, but it did not care

On 1st August, 1672, a governmental proclamation was made. By this proclamation was

made. By this proclamation the existing Portuguese law in the island was replaced by the

English law. From then onwards, the English law became the law of the island in all matters.

Under this proclamation a new judicial system was also established under which three types

of courts were created.

Court of Judicature- A Court with Wilcox as its judge, was established to hear all civil and

criminal cases. The Court also had jurisdiction in matters 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 at the rate of 5% was also imposed in civil cases. For deciding criminal cases, the court

used to sit once in a month.

Court of Conscience- This court was also presided over by Wilcox, it was called as Court of

Conscience because it provided quick and summary justice. It entertained only petty cases

and decided civil matters of value upto 20 xeraphins.

Court of Appeals- The Deputy- Governor and council functioned as court of appeal. They

heard appeals against the judgements of the court of judicaturein all matters. The judicial

system which was established under the plan of 1672 worked well. It was quick, inexpensive

and efficient. Its main defect was that the judges did not enjoy independence required for

good administration of justice.

Second Stage(1684-1693)- under the new system of judicial administration, a court of

Admiralty was established in Bombay on the lines of the court of Admirality established in

Madras under the charter of 1683. The Company found its authority to establish courts under

the earlier Charter of 1683 granted by Charles II. The Charter provided for the establishment

of Courts at such places as the Company might direct for Maritime causes of all kinds,

including all cases of Trespasses, Injuries and Wrongs done or committed upon high seas or

in Bombay or its adjacent territory, and each Court was to be held by a learned judge in civil

law assisted by two persons chosen by the company. Such Courts were required to decide

cases according to the rules of equity and good conscience and the laws and customs of

merchants. Accordingly, an Admiralty Court was established at Bombay in 1684. Dr. St. John

was also authorized to act as Chief Justice of the Court of Judicature. The Court of Judicature

was again created, as the authority of the Admiralty Court was not sufficient to cover all
other civil business.

In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial

system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer

justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period

in Bombay’s Legal History.

Third Stage(1718 to 1726)- A new period in the Judicial history of Bombay began with the

revival and inauguration of a court of judicature on 25th March,1718 by Governor Charles

Boone. It was established by the order of the Governor and Council which was later on

approved by the Company authorities. The court of Judicature of 1718 consisted of ten

Judges in all. It was specially provided that the Chief Justice and Five Judges will be

Englishman. The remaining Four were required to be Indian representing Four different

communities, namely, Hindus, Mohammedans, Portuguese – Christians and Parsi. All

English Judges were also members of the Governor’s Council and enjoyed status superior to

Indian Judges. Three English judges formed the quorum of the court. The Court met once a

week. Indian Judges, who were also known as “Black Justice” were included mainly to

increase the efficiency of the Court and their role was mostly that of assessors or assistants of

the English judges. They do not appear to have enjoyed equal status with English judges.

The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and

criminal cases according to law, equity and good conscience. It was also guided by the rules

and ordinance issued by the Company from time to time. It was necessary for the Court to

give due consideration to the customs and usages of the Indians. Apart from its jurisdiction

over probate and administrative matters, it was further authorized to act as a Registration

House for the registry of all sales concerning houses, lands and tenements.
An appeal from the decision of the Court of Judicature was allowed to the Court of

Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to

file an appeal was to given within Forty-Eight hours after the judgment was delivers to the

Chief Justice of the Court of Judicature. Moderate fees were prescribed by the Court for

different purposes. For filing an appeal a fee of Rs. 5 was to be paid.

Conclusion- The system established in 1718 was an imporovement upon the earlier system

atleast to the extent of participation of Indian judges was allowed to the administration of

Indian judges. A little bit separation of executive from the judiciary had been introduced by

the court of 1718, yet the executive, i.e.the Governor and Council always interfered with the

independence of the judiciary. In this way the judicial system was wanting in so many

respects. The canons of natural justice and the priniciples of law were violated by the defects

which have been just mentioned.

Establishment of Mayor’s Court (1726)

INTRODUCTION

The Charter of 1726 undermined the powers of the Mayor's Courts and made the local

Governor in council all powerful. Originally Mayor's Court was a court of record with

criminal and civil jurisdiction. It was to deal with offences which imposed fine, imprisonment

or corporeal punishment. A right of appeal to the Court of Admiralty was guaranteed, in Civil

and Criminal cases. The Mayor and two Alderman formed the quorum of the Mayor's court

sitting once a fortnight. The jury system appears to have been followed in Mayor's court in

criminal proceedings. But, under the Charter of 1726, the Mayor and Alderman of each
corporation constituted a court. The Court met not more than thrice a week. The process of

the court was given testamentary jurisdiction.

FEATURES OF CHARTER OF 1726-

• The Charter of 1726 issued by King George I.

• The charter established civil and criminal courts in the presidency towns which derived

their authority not from the company but from the British crown.

• The advantage of having royal courts in India was that their decisions were as authoritative

as those of the courts in England.

• The charter initiated the system of appeals from the courts in India to the Privy Council in

England.

• Thus, the English law was brought in to India. Principles of English law was brought to

decide the disputes.

• Codification of Indian law was initiated in 1833.

• The charter also established a local legislature in each presidency town.

• The Charter of 1726 constitutes a landmark in the Indian Legal history.

• But justice continued to be administered by non professional judges, no separation of power

between the executive and the judiciary.

• Position of courts before 1726 and after. The decision of the Mayors court commanded

respect in England as it was created by the Crown. It was not so in case of earlier court which

was created by the company.

Provisions of the charter-

• All the three presidency was to to have a corporation comprising of one mayor and 9

alderman.
• Out of the 9 alderman, two could be a subject of any prince or state having good relation

with the Great Britain. Rest were to be British natural born subjects.

• Mayor was appointed for 1 year and after the expiry of term had to continue as an alderman.

• Alderman was appointed for life and in case of any vacancy the mayor and the remaining

alderman would elect new alderman from inhabitants of the town.

• New mayor was to be elected by outgoing mayor and the alderman.

• An alderman could be removed on some reasonable ground by the governor and council

subject to an appeal to King in council.

Thus, the attempt was to make the corporation autonomous, free from the control of the

executive.

Judicial structure and composition in each presidency(civil jurisdiction)

• The mayor and the aldermen were to constitute the mayors court.

• The quorum of the court was to be three-the mayor or senior alderman with two other

aldermen.

• The court was to hear and try all civil suits arising within the town and its subordinate

factories.

• The first appeal within 14 days would go to governor and council. From where, further

appeal lay with the King in council in all matters involving 1000 pagodas or more( then

currency of Madras)

• Thus, for the first time, a right of appeal to the king-in-council from the decisions of the

courts in India was granted.

• It was a court of record and had power to punish for contempt.

• Had testamentary jurisdiction, could grant probates of wills of the deceased persons.

• A sheriff was chosen annually by governor and council and functioned as police.

• The form of procedure in civil action was interesting. Court might issue warrant, bail might

be allowed, defendant could be detained in custody, he could be imprisoned till the

judgement was satisfied, property could be seized and sold.

Criminal Jurisdiction-

• Vested in the governor and five senior member of the council.

• They were known as justices of peace.

• Arrest persons, punish.

• Three justices of the peace were to collectively form a court of record.

• Session was held four times a year to try and punish each and everycriminal offence except

high treason.

• Trials were held with the help of grand jury and petty jury.

• All technical forms and procedures of the English criminal justice system was introduced.

Important points

-Seperation of power between the executive and judiciary was partially followed.

-Executive enjoyed a large share in the administration of justice as a criminal court and

appellate court from the mayor’s court.

-Aldermen were either company’s servants or other English traders.

-justice administered by non professional judges.

REGULATING ACT OF 1773

This is the first act by the British parliament enacted and introduced in India. Reasons for

the introduction of the act were:

1. The company was running into financial losses although the employees of the

company were getting richer.

2. The company by 1772 had no choice but to apply for a loan of 1 million pounds

from the British parliament.

3. The British government could not give a loan without investigating the affairs of

the company. Hence they appointed a selected and secret company from the House

of Commons to look into the matters of the company. The company came up with

many adverse observation:

a. The opulence of the company and its servant had created a strong public opinion

against the company.

b. The corruption of the company servant was rampant. The administration and

the judicial state of affairs in India were also appalling.

c. The company did not exercise any control over the Indian affairs.

d. The company suffered a terrible defeat by Haider Ali of Mysore.

e. The terrible famine in Bengal with heavy loss of life was also criticised and

finally there was a declining financial position of the company with huge debts.

The committee concluded that the independent running of the company must

be overtaken by the supremacy of parliament.

4. With the passage of act a new phase started in the Indian legal history i.e. the age

of parliamentary enactments wherein the royal charters became secondary or

marginal. Since 1773, parliament enacted a number of acts and usually one act came

up at an interval of 20 years to renew the company’s charter. With the passage of every act
the affairs of the company were subject to close investigation and scrutiny
and the authority of the parliament and the crown increased.

MAIN OBJECTIVES:

The regulating act was introduced in the House of Commons on 18th May 1773 by Lord

North with three main objectives:

1. To reform the constitution of the country.

2. To reform the company’s government in India.

3. To establish Supreme Court to provide remedies against the illegalities and

oppression by the company’s official.

PROVISIONS:

1. The regulating act permitted the company to retain its Indian possession. But the

management of company’s affair were partially brought under the control of crown

and the parliament. The act may be regarded as the first act by the British parliament

to regulate the Indian administration and control the servants of the company in

India and in England.

2. The constitution of the East India Company was reconstructed. The term of the

directors were increased from one year to four years. With the election of the onefourth of the
directors every year by rotation. This was done to secure continuity in

running the company’s affairs and also to strengthen the position of the directors’

vis-à-vis with shareholders. The period of one year was considered too short for a

director to understand the company’s affairs. Frequent elections will make the

shareholders more powerful as the directors would be at their mercy. It was

expected that this would result in their efficiency in the administration of the

company. In addition the voting powers of the shareholders was restricted to only
those who had a stock worth of 1000 pounds or more. This was done to prevent the

power from being easily purchased. Small shareholders were deprived of their voting right
with an expectation that this would improve the quality of shareholders

and directors. The parliament also instructed the directors to present before the

treasury all the records of Indian affairs especially with regard to revenue. A

secretary of state for Indian affairs was to deal with the civil and military affairs of

the government in India.

3. Reorganisation of the structure of company’s government in India. The act

provided for the appointment of a Governor General and a council of four members

empowering them with the civil and military powers of the Calcutta presidency and

all the territories of Bengal, Bihar and Odisha. Under the act, Warren Hastings was

appointed as the first Governor General. The four counsellors were appointed by

the government. Three of them i.e. Richard Barwell, General Clavering and Colonel

Moson were from England and only one member had an Indian experience i.e.

Phillip Francis. This was done to ensure that they had no vested interest in India

and hence control the misuse of power. All the members of the governor general

council were to hold office for a period of 5 years unless removed by the English

crown on the recommendation of the board of directors. The decisions in the

council were to be taken by the majority votes. The Governor General had no Vito

powers. He only had one vote to cast. He only had the power of a casting vote in

case there was a tie in the council. He had no power to override on the majority of

the council and as a consequence they could defeat any of its policies. Warren

Hastings had to face this deadlock for a number of years. It was only at the death
of one of the members of the council that Warren Hastings was able to regain some

control. But this provision of the act created problems in the administration and it

is only till the 1870s that the Governor General gets the power to override his

council in necessity.

4. The extent of the Governor General’s power with regard to Bombay and Madras

also was restricted. The regulating act placed the presidencies of Bombay and

Madras under the superintendence of the Governor General of Calcutta presidency

in the matters of war and peace. This was subject to two conditions. (1) The

presidencies of Bombay and Madras could commence war or negotiate peace

without the consent of Calcutta presidency under the clause immunity necessity as any
postponement of war till the approval from the Calcutta presidency could prove

to be dangerous. (2) When the subordinate presidencies of Bombay and Madras

received orders directly from the directors of the company. However the

subordinate presidencies had to transmit all the necessary records for information

of the Calcutta presidency.

5. An important innovation under the regulating act was the creation of the Supreme

Court at Calcutta, superseding all the previous acts and also the Mayors Court. The

act intended to provide an effective judicial tribunal for the redressal of grievances

and impartial administration of justice. It was the English crown which was

authorised to establish the Supreme Court by a royal charter. It also specified the

lines on which the Charter was to be based. The Supreme Court consisted of one

Chief Justice and three puisne appointed by the English crown and holding the

office at the pleasure of the crown. The qualification of the judges included a
barrister of at least 5 years of experience. The Supreme Court was to act as a Court

of record. The Court’s jurisdiction extended in civil, criminal, ecclesiastical and

admiralty matters. In criminal matters, the Supreme Court had absolute plenary

jurisdiction, with regard to the town of Calcutta and its subordinate factories. Both

the Grand and the Petty juries were used. Petty juries consisted of the British

subjects residing in the Calcutta town. The jurisdiction of the Supreme Court was

not extended to all the persons in Bengal, Bihar and Odisha. It was limited to the

few categories mentioned in the act i.e. British subjects and his majesty subjects

residing in Bengal, Bihar and Odisha. Persons employed by the company or those

persons who were directly or indirectly under the service of the company or in the

service of any of his majesty’s subjects. Any inheritance of Bengal, Bihar and

Odisha would voluntarily place himself under the jurisdiction of the Supreme Court

in all disputes exceeding Rupees 500. The Supreme Court was not eligible to hear

any cases against the Governor General or the members of the council except

treason and felony. The immunity from arrest was provided for governor general,

members of the council and the judges of the Supreme Court. The Supreme Court

was also authorised to frames rules and procedures for conducting the affairs of the

Court.

CHARTER OF SUPREME COURT

To implement the provisions of the regulating act, King George III issued a Charter in

March 1774. The powers of the Supreme Court at Calcutta were defined and elaborated

upon. The provisions of the Charter were:

1. The Supreme Court was to be a court of records.

2. Sir Elijah Impey was appointed as the Chief Justice of the Supreme Court. The

puisne judges appointed to the Supreme Court were Robert Chambers, Stephen

Caesar le Maistre and John Hyde. For subsequent appointment the qualification

was to be five years’ experience as the barrister of England and Ireland. All the

judges were to hold the office at the pleasure of the crown. Each judge of the

Supreme Court was termed as Justice of peace with regard to the criminal matters.

All the judges of the Supreme Court were declared to be equal in rank to the judges

of the King’s Bench in England. The court was also authorised to establish rules of

practice and procedure and appoint the subordinate staff.

3. The Supreme Court was granted extensive civil jurisdiction. In cases above Rupees

500 the Supreme Court was authorised to hear in the first instance. It also heard an

appeal decisions of the company courts i.e. the Mofussil Diwani Adalats. In all civil

courts above 1000 pagodas an appeal was sent to the Privy Council within six

months from the decision of the Supreme Court.

4. The Supreme Court of Calcutta exercised absolute criminal jurisdiction for the town

of Calcutta including Fort William and the subordinate factories. All the criminal

cases were tried by a jury of 12 English residents of Calcutta. The Supreme Court

was given the power to suspend the execution of any capital sentence and transmit

it to the crown for mercy. However the Supreme Court would provide the grounds

for giving mercy.

5. The Supreme Court exercised this jurisdiction over all the British subjects residing

in Bengal, Bihar and Odisha according to the British ecclesiastical law prevailing
in the Diocese of London. The Supreme Court was authorised to grant probates of wills of the
British subjects dying within Bengal, Bihar and Odisha. Issue letter of

administration of any British subjects dying intestate i.e. without appointing an

executor of will. The Supreme Court was also empowered to appoint guardians and

keepers for infants and insane persons and their estates according to the English

law.

6. The Supreme Court was also a court of admiralty for Bengal, Bihar, Odisha taking

up all maritime matters and the crimes committed on the sea. The jury of 12 English

residents of Calcutta assisted the court. The maritime jurisdiction extended to his

majesty subjects residing in Bengal, Bihar and Odisha and directly or indirectly

under the control of his majesty subjects.

7. The Supreme Court was also given the writ jurisdiction and was empowered to

superintend the Court of Collector, the court of Quarter session and the court of

request and it had the power to issue writs to these courts of certiorari, mandamus,

habeas corpus, error or procedendo.

Mandamus is a command. It is an order of the most extensive remedial nature

directed to any person corporation or the subordinate tribunal to perform a

particular duty in nature of a public duty. The purpose of mandamus is to remedy

defects of justice.

Error or procedendo was issued to return to the subordinate court any matter remove

it to the Supreme Court by the writ of certiorari or to restore an order of the

subordinate court where an appeal to quash the certiorari was allowed by the

Supreme Court.
8. The Charter also provided for the final appeals to the Privy Council from the

decision of the Supreme Court. In civil cases an appeal to the Privy Council was

made above 100 pagodas and a petition of appeal had to be filed in the Supreme

Court within six months of the decision. In criminal cases, the Supreme Court had

an absolute power to allow or deny an appeal to the Privy Council also reserved the

rights to admit or refuse an appeal.

9. The judges of the Supreme Court were also authorised to admit attorneys and

advocates. And they have power to remove any advocate or attorney from the rolls

of the court on reasonable cause shown. The Supreme Court was also authorised to nominate
three persons to office of sheriff out of which the final selection was done

by the governor and council.

EVALUATION

1. The judges of the Supreme Court were legal professionals and they were sent from

England and appointment was done by the Crown i.e. they were not at all the mercy

of the East India Company in India.

2. The judges of the Supreme Court had a good understanding of English common

law and hence they had clarity in decision making.

3. The tenure of the judges of the Supreme Court was independent of the Calcutta

government and the company implying that they could take a dispassionate view in

the cases involving the company or its employees. In other words with the

establishment of the Supreme Court judiciary was separated from the executive.

4. The jurisdiction of the Supreme Court was not confined to the town of Calcutta but

it extended to some categories of British subjects residing in Bengal, Bihar and

Odisha.

5. A progressive step was taken with the establishment of the Supreme Court which

had not been done even in the England till the 19th century and that was the merger

of the common law an equity in a single court. In fact it also had the jurisdiction in

admiralty and ecclesiastical matters.

6. The Supreme Court also had the power to control the company’s servants and their

administrative acts.

7. With the establishment of the Supreme Court in Calcutta tensions started with the

executive. Judiciary and executive shared turbulent equation. The power of

judiciary was not clearly stated in the regulating act with regard to the areas outside

Calcutta in Bengal, Bihar and Odisha as these areas were not officially declared to

be a part of English territory.

8. The legal position of the East India Company as the Diwan of the Mughals also

created problems. The question that was raised was whether a Diwan of the Mughal

Empire had the power to enact laws and regulations.

9. This only increased the contradiction of the Supreme Court under the act of 1773

as on one hand the English East India Company did not regard the lands of the

Bengal, Bihar and Odisha as British territories. But the English parliament through

the regulating act allowed the writs of the Supreme Court in operative in these areas.

This was an inconsistency creating confusion about the Supreme Court’s

jurisdiction.

10. In the regulating act different terms such as the British subjects or the subject of his

majesty were unclear and indefinite. His majesty subjects could include the colonial
subjects also. While the term British subjects means only the English residents.

However the decision of the Supreme Court also create confusion in this regard.

For example in the case of David Killican v. Juggernauth Dutt the Supreme Court

was of an opinion i.e. a person born in Calcutta is a British subject. In another case

of Manickram Chattopadhyay v. Meer Conjeer Ali Khan, the Supreme Court held

that the inhabitants of the Calcutta were not the British subject. In another case,

Michael De Rozio v. Chatgur Gosain, the Supreme Court contended that a person

born in Calcutta before 1757 did not fall within the meaning of the term his

majesty’s subjects. In another case of Byjenauth Singh v. Charles Reed, a native of

Bengal of Christian religion born of a native woman’s marriage to a British born

father was not held to be a British subject.

11. The regulating act had made an important provision about the rule of law which

meant that the company’s employees were made accountable to the Supreme Court

for their administrative acts. But this resulted in conflict between judiciary and

administration. The administration made all attempts to obstruct the judicial

proceedings in all cases involving them or the company. They also raised a question

whether the Supreme Court could look into the activities of the company’s servants

entrusted with revenue collection under the Diwani but the Supreme Court would

not permit any violence in the collection of revenue. However the regulating act or

the charter did not clear the position as even in England at that time the judicial

control of the executive was uncertain. Tensions escalated in particular over the

issue of Indian zamindars who were responsible for revenue collection on

commission basis. The executive held that the zamindars were not in company’s service and
hence they were immune from the jurisdiction of the Supreme Court.

But the Supreme Court in the Patna case held that the zamindars were indirectly in

company’s employment and due to this they came under the jurisdiction of the

Supreme Court.

12. The relationship between the Governor General and Supreme Court remain

tenuous. Under the regulating act of 1773 the Governor general and council were

exempt from arrest in any civil suit or proceeding in the Supreme Court. But there

was a certain degree of uncertainty as the Governor General and council argued

that their public acts specifically the Diwani functions were outside the purview of

judicial review and the Charter left these matters undecided.

13. With the regulating act of 1773, two parallel court system came into existence in

India i.e. the company system (Adalat system) going at the level of Mofussil and

deriving its authority from the grant of Diwani by the Mughal administration. The

other system was the Crown’s court or the Supreme Court at Calcutta, deriving its

authority from British parliament and crown. The Supreme Court under the act of

1773 was given jurisdiction over certain categories of people in the Mofussil areas

of Bengal, Bihar and Odisha. But the regulating act did not specify the relationship

between the two court systems.

14. The Supreme Court was most oppressive for the Indians as they were totally

oblivious of the laws, custom and traditions of India. In the establishment of the

Supreme Court foreign language and usage was transplanted. It was expensive as

the Indians had to hire the English barristers to plead their case. Moreover the
Supreme Court will decide to take the case or not or to take after the first hearing.

It was inconvenient and harassing for the Indians also the technicalities of the of

the English common law procedures were unfamiliar to the Indians and most

detested law was the law of arrest on mesne i.e. the accused was first arrested and

then released on bail but till the time initial plea was heard, the accused was kept in

the prison. This meant a loss of prestige for an Indian. The zamindars were most

unhappy as it affected their dignity (Cossijurah Case).

15. The regulating act did not specify which law to be applied in the cases of Indians,

English law or the Indian law. Most of the time English law was applied which was

considered to be harsh and severe for the Indians especially the law of hanging.

16. There was a major disagreement between the Calcutta government and the Supreme

Court of three points:

a. The Supreme Court jurisdiction over the revenue officers for their act of

violence and corrupt practices done in their official capacity by using the writ

of habeas corpus to liberate any cultivator from an illegal confinement was

resented by the Calcutta government.

b. The claim of the Supreme Court to try all illegal acts of the judicial officers of

the company was also objected by the Calcutta government.

c. The Supreme Court issuing the writs of Capias against the native defendants

residing in Bengal, Bihar and Odisha forcing them to appear before the Supreme

Court was considered to be inconvenient and harassment.

FOUR LANDMARK CASES

Raja Nandkumar Case

Facts of the case:

1. Raja Nandkumar was a big Zamindar of Bengal, and for some time a Governor of

Hugli under Nawab Siraj-ud-daulah. In 1775, he wrote a letter to the members of

the Council of the Governor-General, Warren Hastings. In the letter, he accused the

Governor-General of taking bribes, with particular reference to an amount of three

and a half lacs from the widow of Nawab Mir Jafar, Munni Begum. The members

of the Council accepted his accusation with haste, due to internal conflicts between

a few members and the Governor-General. Raja Nandkumar also offered to produce

the vouchers in support of his claim.

2. Col. Monson, a member of the Council, decided to summon Raja Nandkumar, a

resolution opposed by Warren Hastings as the President of the Council. Despite

Warren Hasting’s opposition, the majority vote passed the resolution. Warren

Hastings left his seat, which was occupied by another member and Raja Nandkumar

was summoned. He showed the voucher whereby Warren Hastings received a sum of
Rs.3,45,105 as a bribe. The Council asked him to refund the money in the

Company’s treasury.

3. While the charges against Warren Hastings were still pending, suddenly, Raja

Nandkumar was arrested on the charges of forgery, on the complaint of Mohan

Prashad, a Calcutta merchant. The trial was conducted before the Supreme Court

presided over by Sir Elijah Impey on the charge of forgery. He was tried with a jury

of 12 Englishmen.

4. Mohan Prashad charged Raja Nandkumar with forgery. On 15 January 1770, he

forged a mortgage deed in Bulaki das’s name, on the basis of which Goongabasin
and Pudumohan das, who were the real executors of the will, were defrauded.

5. The trial began on 7th June 1775 and continued for eight days without any break.

The jury pronounced the verdict of guilty, and Raja Nandkumar was sentenced to

death under a statute passed by the British Parliament in 1728. On 5th August 1775,

the death sentence was duly executed.

Evaluation of the Case

The way the trial was carried out, disallowing an appeal to the Privy Council, created

doubts in the minds of the people regarding the validity and legality of the trial, and it has

been termed ‘judicial murder’. The following points create reasonable doubts are as

follows:

i. The crime of forgery, for which Raja Nandkumar was accused, was committed five

years before the establishment of the Supreme Court at Calcutta.

ii. The statute under which Raja Nandkumar was sentenced to death for forgery was

passed in England in 1728 under the specific circumstances prevailing in England

then. The same law was not known in Calcutta and had never been promulgated

there.

iii. The crime of forgery was not regarded as a capital offence under the personal laws

of Hindus and Muslims.

iv. Raja Nandkumar’s application to grant leave to appeal to the Privy Council was

rejected.

v. The Supreme Court under the Charter of 1774 had the power to reprieve and

suspend the execution of capital punishment and recommend the case for mercy to

the British Crown. The Court did not exercise this power.
vi. Sir Elija Impey and Warren Hastings were old public school friends. Warren

Hastings was accused of using his closeness to Sir Elijah Impey to remove Raja

Nandkumar from his way.

vii. Raja Nandkumar was a resident of Bengal, not Calcutta, and hence not under the

jurisdiction of the Supreme Court, which had jurisdiction in the Calcutta

Presidency. His request to hold the trial under the Muffassil Faujadri Adalat was

ignored.

viii. The judges themselves severely cross-examined the defence witnesses produced in

the court.

ix. Ferrer, the defence Counsel, requested a period of appeal and tried to persuade the

jury to recommend mercy, but the Court turned it down by stating that the accused

had charged Warren Hastings with corruption, and it must be properly investigated.

It can be concluded that the way the trial was conducted, Raja Nandkumar was denied

justice.

Cossijurah Case (1779-80)

This case created serious tension between the Government (Executive) and the Supreme

Court.

Facts of the Case

Cossnaut Baboo advanced a large sum of money to Raja Sunder Naraine, a Zamindar of

Cossijurah. The loan remained unpaid for a considerably long time. Consequently,

Cossnaut Baboo brought a suit against the Zamindar in the Supreme Court in August 1779,

stating that the Zamindar was employed in the revenue collection and hence was an

employee of the company.

Proceedings of the Case

1. The Supreme Court issued a writ of Capias warranting arrest of the Zamindar

subject to being released on a bail of Rs. 3 lacs.

2. The Zamindar went underground to avoid arrest.

3. The Collector of Midnapur informed the Governor-General of the situation and

stated that the Zamindar was being prevented from collecting land revenue.

4. The Government asked for the opinion of the Advocate-General, who maintained

that the Regulating Act did not extend the jurisdiction of the Supreme Court to the

Zamindars. He suggested that the Zamindar of Cossijurah be told that he will not

come under the Supreme Court’s jurisdiction. The Zamindar should, hence, not

appear, plead or do any act, which will amount to his recognizing the Court’s

jurisdiction.

5. The writ of Capias remaining unexecuted, the Supreme Court proceeded with the

write of sequestration (seizing the Zamindar’s property), declaring him an

absconder.

6. The Sheriff of Calcutta with a small force was sent to Zamindar to arrest him.

7. The Government arrested the Sheriff, though he was subsequently released.

8. This angered the Supreme Court, but they could not do anything. They retaliated

by arresting the Advocate-General for his advice. He was tried and died in prison.

9. This decision of the Supreme Court was disliked by the Governor-General and

Council, bringing to surface the jurisdictional dispute between the Supreme Court

and the Governor-General and Council, due to defective and ambiguous language

used in the Regulating Act. The Governor-General was of the view that it could
never have been intended by the draftsmen of the Regulating Act to divest the

Company of its power to collect and supervise the collection of revenue through its

servants. On the other hand, the Supreme Court justified its stand on the ground

that Zamindars who were collecting and supervising the land revenue collection

were answerable to court for any illegal act committed by them during the course

of discharge of their official duty as under the Regulating Act “persons indirectly

employed by the Company” were put under its jurisdiction. This extended

interpretation of the phrase led to open conflict between the Governor-General and

Council and the Supreme Court.

10. The decision given by the Supreme Court was the last blow given to the

Government and reached its climax in this case. The highhandedness of the

Supreme Court was resented by the Government and the Indian zamindars. Many

English officers resented this decision as a check on their exploitation and

oppression of the Indians.

11. Under these circumstances a petition was sent in March 1779, signed by the British

officers, Zamindars and the servants of the Company to the British Parliament

against the excesses of the Court. The Governor-General and the members of the

Council submitted a separate petition to the Parliament. As a result, the British

Parliament passed an Act of Settlement, 1781 to remedy the defects of the

Regulating Act.

PATNA CASE

Highlights the defects in the judicial system introduced in India by the Regulkating Act,

1773.
Facts of the Case

1. Shahbaz Beg Khan was a wealthy rent farmer of Patna, who was a native of Kabul.

Came to India and settled down in Patna.

2. He married Naderah Begum and acquired a large amount of money in the service

of the East India Company. He had obtained a military command under the

company.

3. He had no issue and invited his nephew, Bahadur Beg from Kabul to reside with

him. Bahadur Beg married his Uncle’s sister-in-law in the hope of inheriting the

estate.

4. In 1776, Shahbaz Beg died without an heir and his death raised the question of who

would be the beneficiary of his considerable wealth and who would assume the

responsibilities (profits) of revenue collection on his lands.

The Legal Conflict: Jurisdictional Issues

1. A month or two after the death of Shahbaz Beg, his nephew Bahadur Beg filed

a petition with the Court of the Provincial Council in Patna, to lay claim to the estate. In the
petition, Bahadur Beg asserted that Shahbaz Beg brought him from

Kabul to make him ‘the master of his house’. He claimed that Shabaz Beg made

him his heir and his representative.

2. Bahdur Beg complained that Naderah Begum was making off with goods from

the House and asked that all the effects of the estate be secured and that the qadi

be asked to investigate and establish Bahadur Beg’s right to the estate.

3. The Court of the Provincial Council quickly directed the qadi and mufti (legal

scholar) of the court to make an inventory of all the property in the estate (with
a representative of the widow present) and to secure it.

4. The court asked for a written report that would establish ‘according to

ascertained facts and legal justice’ who was entitled to which portions of the

estates under Muslim law.

5. From the perspective of the Provincial Court they followed all the procedures.

A case of succession was referred to the Muslim court officials for their advice.

6. The officials on their part presented their report, which included a fatwa, a legal

ruling under the Muslim law. It outlined no proof in favour of the nephew’s

claim, but it challenged the evidence presented by the widow.

7. Both the qadi and Bahadur Beg claimed her documents to be forgeries.

Witnesses were examined and oral reports brought back by couriers. The qadi

and mufti concluded that the widow had misused the seal of Shahbaz Beg,

which was illegally in her possession to get the documents prepared. However,

no evidence in support of nephew’s claim was reviewed. The report

recommended awarding three-quarters of the estate to the nephew and onequarter to the
widow. A larger share could not be given to a widow under a

Muslim law.

8. The enforcement of the orders created much hardship for the widow, as she had

to move from room to room and finally shifted to a nearby shrine for refuge.

The court posted sepoys to keep an eye on her movements. But she still had

Shabaz Beg’s seal and the land grant papers and she had some influential allies.

9. Naderah Begum then filed a complaint through an English attorney in the

Supreme Court (barely three years old) against Bahadur Beg, the qadi and the two muftis for
assault and battery. She complained of the indignity of having to

undergo a body search and demanded restitution of six hundred thousand

rupees.

10. The Supreme Court was independednt of the Adalat System and was charged

with administering not Muslim or Hindu Law, but English law. The court had

already been at odds with the Governor-General and Council, and the justices

msut have seen in the Patna case an opportunity to solidify their authority. The

response to the widow’s complaint was to issue a warrant for the arrest of

Bahadur Beg, the qadi and the two muftis and to dispatch to Patna a sheriff to

take them into custody.

11. Warren Hastings and his four councilors were outraged. The qadi and muftis

were the officers of the court and so salaried employees of the company. They

were being arrested for having followed the directives of the Patna court to

recommend a settlement in a case where Muslim law was to be applied. For

Hastings and others, the actions of the Supreme Court threatened the very

ability of the Company to maintain order, since it could not guarantee protection

to salaried officials working under the direction of English superiors on matters

of justice. Hastings insisted that the Council take the unusual risk of posting

bail for the defendants and indemnifying them (on behalf of the Company) in

the amount of four hundred thousand rupees.

12. Jurisdictional boundaries were at the centre of the controversy. There was the

narrow jurisdictional question about the scope of the Supreme Court’s authority
in the case. The Court was supposed to have jurisdiction over English subjects

and Company officials. The qadis and muftis, though also Mughal officials,

received salaries from the Company; even Hastings, who would have liked to

have been able to argue that the Supreme Court had no jurisdiction over them,

recognized that it did.

13. Supreme Court’s jurisdiction was less clear in the case of Bahadur Beg, who

was in the ambiguous position of many other rent farmers in the Mughal

territories now under Company’s rule. They were not salaried employees but

they were an integral, indispensable part of the Company’s revenue-collecting system.

Hastings and other Company officials feared legal policies that might

expose revenue farmers as a class to litigation and so potentially disrupt

collections.

Evaluation

The case called into question whether the scheme envisioned by Warren Hastings

and others – a complex mixing of Muslim, Hindu and British authority in a

patchwork legal order – could work at all. Philip Francis, a councilor and a critic of

Hastings, voiced the opinion that a declaration of British sovereignty would solve

the problem of the hybrid system. He was anticipating a move toward more clearly

established British hegemony which would eventually come after many other cases

straining the system of multiple authorities.

There were other issues aside from the jurisdictional issues like the real and

perceived distinctions between the Muslim and English legal actors. They were

unsure in handling Naderah Begum. At times, they portrayed her as a schemer who
consciously acted the part of a helpless, aggrieved woman, as a matter of strategy.

Yet British officers also found it difficult if not impossible to believe that a woman,

especially a Muslim woman, would be capable of such sophisticated legal

maneuvering. It also brought out in open the difficulties of the plural legal order

where the fact-finding was in the hands of the Muslim law officers, while the legal

ruling was in the hands of the English judges.

The Patna case came to symbolize the tensions between the two British courts, and

between two visions of colonial law. There was an emphasis on the virtue of the

British justice, the procedural purity. The Supreme Court, after ten day of

procedure, decided in favour of Naderah Begum, awarding her three hundred

thousand rupees. The three defendants were arrested.

Kamaluddin Case:

1. Kamaluddin was a farmer of Hidglee.

2. Prosecuted without bail in 1775 by the Calcutta Revenue Council on the grounds

of arrears of revenue.

3. He disputed the claim on the grounds that he was a holder on behalf of Kantu Babu.

4. It was customary to release a person in such cases.

5. Kamaluddin obtained a writ of Habeas Corpus from the Supreme Court to release

him.

6. The Supreme Court held that in cases of disputed accounts a person should be held

to bail till the enquiry as to his obligations to pay was completed

7. Judges held that Kamaluddin should not be arrested till his under-renter had been

called upon to pay arrears and had proved to be insolvent

8. The Government regarded this as an interference in the Diwani rights of the

Company in which the Supreme Court had no right to encroach.

9. The Supreme Courts release of Kamaluddin extended its jurisdiction

10. The majority in the Governor General’s council asked for reimprisonment, but

Warren Hastings refused to support this step of the majority.

11. Justice Elijah Impey contended that it had been usual practice to take bail and the

rent was demanded first from the under-renter as practiced. The Supreme Court

simply compelled the revenue officers to act in conformity with the established

customs and usages of revenue collection

12. The revenue officers were shocked by the interference of Supreme Court’s

decision, but due to lack of clarity in the Regulating Act of 1773 about terms of

Executive and Judiciary, the tension between the two mounted.

13. The decision only highlights the ambiguities and defects in the Regulating Act.

With clarity such situations could have been avoided.

THE ACT OF SETTLEMENT, 1781

Purpose of the Act:

To remove doubts and difficulties which had arisen regarding the true intent and meaning

of certain clauses in the Regulating Act and the Charter which had created dissensions

between the Court and the Government and which, if not removed, might lead to further

mischief and misunderstanding. There was unhappiness with the interference of the

Supreme Court.

1. To support the lawful government of Bengal, Bihar and Orissa so that revenue might be

collected with certainty as the interference by the court let to great difficulties in revenue
collection.

2. To maintain and protect the inhabitants in the enjoyment of all their ancient laws, usages,

rights and privileges. This was done to remove an apprehension of the alienation of the

Indians.

3. The purpose was to strengthen the Executive to consolidate the Empire at the expense

of the court.

Provisions of the Act:

1.The Governor-General and Council were not to be subject, jointly or otherwise, to

the Supreme Court’s jurisdiction for anything done or ordered by them in their public

capacity and acting as “Governor-General in Council”.

2.Further laid down that no person was to be held responsible in the Supreme Court for

act done by him in pursuance of the Governor-General and Council’s order in writing,

both in civil and criminal matters.

3.Such immunity did not extend in the cases involving British subjects, even if the order

was in writing and the Supreme Court could intervene and the Executive was liable to

be tried before any competent court in England if applied for.

4.The provision vested an uncontrollable power in the Government in respect of Indians

in Bengal, Bihar and Orissa with no remedy against its arbitrary acts.

5.The jurisdiction of the Supreme Court was restricted in one very vital respect. It was

not to exercise any jurisdiction in any revenue matter, or in its collection, or entertain

questions over the acts of revenue officers “in the line of their duty”. This was held

by the Supreme Court in Pearemony Dossee v B. Bonnerjee.

6.Land-owner, zamindars, farmer of land rent, etc were also exempted from the
jurisdiction of the Supreme Court, reversing the decision in the Patna Case.

7.The Act of settlement exempted the British subjects (including the Hindu and Muslim

servants of the Company) from the court’s jurisdiction in matters of personal law

(inheritance, succession) and contract. For these matters they were to take recourse to

the Company’s Adalats. But in criminal matters and torts, they continued to be under the
jurisdiction of the Supreme Court as laid down under the provisions of the

Regulating Act.

8.Section 17 of the Act of 1781 declared specifically that the Supreme Court would

have full power and authority to hear determine all actions and suits against the

inhabitants of Calcutta. In matters of personal laws and contract, the respective personal

laws (broadly interpreted to include not only succession but also marriage, dowry,

adoption, etc.) of Hindus and Muslims were to be applied.

9.In case one of the parties was a Muslim or a Hindu, the court was to apply the law

and usages of the defendant. After 1781, the Supreme Court came to apply three

systems of law, the English, Hindu and Muslim.

10.Entire Muslim and Hindu laws of Families were safeguarded to respect the civil and

religious usages of the Indians. Accommodate the religious sentiments in both civil

suits and criminal cases, especially with regard to arrest.

11.The Sadar Diwani Adalat came to be co-equal in status to that of the Supreme Court

and sanctioned by the British Parliament. It was to be a court of Record and the final

court of appeal in civil suits in cases below ₤5000. In and above such limits, appeal to

be made to the Privy Council.

12.All revenue matters came within the purview of the Sadar Diwani Adalat, though
the impartiality of the Sadar Court with regard to the excesses in revenue collection

was in doubt.

13.The judges and the law officers of the Company’s courts were made immune from

any civil action in the Supreme Court in the discharge of their duties. But an action for

corrupt practices against the judicial officials could be brought in the Supreme Court

after the concerned person gave a notice in writing fully stating the cause of complaint.

14.All persons committed to the prison by the Supreme Court in the Patna Case were

to be released, damages awarded against them by the Supreme Court to be paid by the

Company.

15.There existed a grave doubt over the jurisdiction of Governor-General and Council’s

legislative power in Bengal, Bihar and Orissa. Section 23 of the Act of 1781

empowered the Governor-General and Council to frame Regulations for the provincial courts
and councils. Two-fold legislative power: one from the Regulating Act for

Calcutta and under the Act of Settlement for Bengal, Bihar and Orissa.

Evaluation:

1. After 1781, the element of conflict between the Supreme Court and the

mofussil courts in Bengal was removed.

2. Some difficulties that arose were resolved by the process of judicial

interpretation.

3. The system continued to function smoothly for next eighty years and the

Supreme Courts were also established in Bombay and Madras.

ADALAT SYSTEM UNDER LORD CORNWALLIS (1787)

Lord Cornwallis laid down certain conditions before accepting the General-Governorship:
1. The Governor General to have the power to override his council.

2. The office of the Governor General and commander in chief will be limited under

one person.

From his time the Governor General and council became the Governor General in Council

and this position would continue up to 1947.

JUDICIAL PLAN OF 1787

Lord Cornwallis was briefed about the inefficiency of both judicial and revenue

administration in India. The company was decertified with the functioning of government

in India and they also wanted to reorganise the commercial department of the company. Lord
Cornwallis was aware about the problems of the Adalat system and the criticism on

two separate organs for administration of revenue and judicial functions.

Sir John Shore a senior civil servant will later succeed Cornwallis as the Governor General

supported the union of the two functions of revenue and judiciary to reduce all the costs.

He stated in his argument that Indians have always lived under arbitrary despotic

governments and therefore the British government should be despotic in India. He further

argued that it was impossible to draw a line in India between revenue and judicial

administration as it resulted in continuous clashes. The merger was advocated on the

grounds of simplicity, efficiency and economy. But the most important reason was to

ensure the smooth collection of revenue without any judicial intervention. Cornwallis was

therefore directed by the company directors to follow this line of approach.

PROVISION OF THE JUDICIAL PLAN OF 1787

1. The keynote of Cornwallis plan of 17787 was the increase in salaries of collectors

to achieve purity of administration. This was made possible by redistributing the

Diwani territory whereby the number of districts were reduced from 36 to 26.

2. The plan of 1787 was introduced by two regulations. One for the revenue and other

for the judiciary.

3. In each district an English officer who was a member of the company’s covenanted

services was appointed as the collector. In this capacity he collected revenue and

small cases of disputes in revenue matters. He was also appointed as the judge to

adjudicate in the cases of property succession including those of Talukadaris and

other rent free lands. The collector was also to act as the magistrate within the

districts.

4. The administration of revenue and judicial functions was kept separate. The

revenue function was to be taken up by the Mal Adalat or the Revenue Court. The

judicial functions came under the Mofussil Diwani Adalat where no revenue matter

would be taken up.

5. The system of appeals was also made separate for revenue and judiciary. Appeal

from the Mal Adalat would go to the Board of Revenue and them to the Governor

General in Council. On the other hand appeal from the Mofussil Diwani Adalat in

all civil cases above Rupees 1000 went to Sadar Diwani Adalat who was assisted

by the native law officers. Further in the civil suits of 5000 pounds or more, an

appeal lay to the Privy Council.

6. The collector in the district was to be assisted by a judicial officer called the

registrar to take care of his judicial power. The registrar could decide cases up to

Rupees 200 but the decree would be final only after the counter signature of the

collector. This was done to prevent any miscarriage of justice.

7. In the cases to the succession of the zamindaris, the district Adalat was to ascertain

whether the successions were regulated by any customary usage of the Pargana

where the disputed land was located.

8. The collector as the magistrate was to arrest criminals and try and punish petty

offences not exceeding 15 lashes or imprisonment of up to 15 days. All serious

criminal cases were to be sent by the collector to nearest Mofussil Faujdari Adalat

for trial and punishment.

9. The English men residing in the interior (outside Calcutta) were subject to the

criminal jurisdiction of the Supreme Court alone. Under the 1787 plan, the English

magistrate could make an enquiry in the circumstances of the crime and if he was

satisfied that the matter was serious, the case would be sent to the Supreme Court

for trial. The complainant and the witnesses had to travel to Calcutta for the case.

If they were poor, the government paid their travel expense. All other Europeans

(non-English) were on the same footings as the Indians i.e. under the jurisdiction

of the Mofussil Faujdari Adalat.

In conclusion the plan of 1787 was:

1. Not progressive as the principle of separation of power was not followed completely.
2. Judiciary was made subordinate to the interest of the company.
3. The collector was given excessive powers.

JUDICIAL PLAN OF 1790

1. Lord Cornwallis’s main objective in this plan was to reorganise the criminal

administration as there were defects in the system which were:

a. Administration of criminal justice was in the hands of Maulavies, Qazis and

Muftis.

b. They were paid very low salaries as the criminal justice was under the Nawab

who was himself dependant on the British for an allowance and the Nawab had

to pay the salaries of these officers from his expenses. The system therefore

become corrupt and unjust.

c. The control of the company was indirect and nominal.

d. The company had no control over the district criminal courts as they were far

off from Calcutta. The magistrate also had no contract with the criminal justice

system once the accused was handed over to the Faujdari Adalat. Even when

the case was sent in appeal to the Sadar Faujdari Adalat, the decision of the

lower court would stand favourably.

e. There were also delay in giving justice. For instance a man was kept in prison

for 10 years without any sentence.

2. Cornwallis decided to send a questionnaire to the magistrates in the districts asking

them nine questions and inviting their views on crime and the ways of ending crime.

Based on their responses he became convinced that the criminal administration was

useless, unjust, corrupt, oppressive and rotten. He also identified two more evils:

(i) Defects in the constitution o criminal courts and (ii) Gross defect in Muslim law

of crimes. Cornwallis wanted to improve the law and order in Bengal, Bihar and

Orissa.

3. He abolished the authority of the Nawab of Bengal over criminal administration

and the governor general in council directly assumed the charge of criminal

administration under the title of Sadar Faujdari Adalat. Reza Khan was dismissed
and the office of Sadar Faujdari Adalat shifted to Calcutta from Murshidabad.

4. In the administration of criminal justice, the Governor General in council in their

capacity as the Sadar Nizamat Adalat were assisted by one Chief Qazi and two

Muftis who explained the law and issued Fatwa. They decided cases in appeal on

the report of the trial magistrate, the proceedings of the circuit courts and the written

pleadings and defence of the parties.

5. Mofussil Faujdari Adalat was abolished and the Diwani was divided into 4

divisions Calcutta, Murshidabad, Dacca and Patna. In these divisions new criminal

courts were established known as the court of circuits. These courts were mobile as

they moved from district to district in the entire division. An appeal from the Circuit

Court lay to the Sadar Nizamat Adalat.

6. Each circuit was divided into various districts and in each district the collector was

to act as the magistrate. The magistrate became the lowest criminal court, punishing

petty offences. Senior officers were sent to the court of circuits.

7. Cornwallis also made attempts to modify the Muslim criminal law. According to

him the Muslim law of crimes was defective and punishment like cutting of limbs

were cruel and barbaric. He also considered the system to be entirely corrupt. He

decide to introduce certain English legal practices in the punishment. For instance,

for murder, the punishment was to be given on the intention of the party unlike the

Muslim law which decided on the basis of the manner of the crime and the

instrument used for committing the crime. He also abolished blood money. The

evidence of non-Muslim was admitted. The Indian law officers were given salaries

to check corruption. His sole objective was to improve the law and order and
 provide security for life and property.

CORNWALLIS CODE OR JUDICIAL PLAN OF 1793

Cornwallis gained sufficient experience in India between 1787 and 1793. His judicial

reforms took final shape by 1793 and they are embodied in what is famously known as the

Cornwallis code.

In all 48 regulations were printed covering different aspects of law and administration and

it was gradually introduced first in Bengal and then in the areas of Bombay (1799) and

Madras (1802). The provisions of the plan were:

1. The new plan was based on the principle of separation of power. The revenue

officers were deprived of their judicial powers and by regulation II of the plan. Mal

Adalats were abolished. Cornwallis came to agree that the concentration of all

powers in the hands of collector in the districts was not good for proper

administration of justice. He realised that the collector would not be objected while

dispensing justice especially in revenue matters where he would have to examine

his own acts or the acts of his officers. Neither the landlords nor the cultivator would

regard collector as impartial in revenue matters. Therefore the collector was

divested of all his judicial and magisterial powers. He only had revenue

administration under him.

2. A new officer called the District Judge was appointed to preside over the District

Diwani Courts. The District judge was also given magisterial and police powers.

3. A gradation of civil courts was established, the distinction between the revenue and

other civil cases was abolished and the court of District Judge was empowered to

try all civil cases. In the previous plan of 1787, an appeal from the civil courts in
revenue matters lay to the Board of revenue and then to the Governor General in

Council. Cornwallis reorganised the civil courts and appointed 28 District Judges

with a proper system of appeals which is as follows:

At the lowest level of civil court was the Munsif’s court in each district. The Sadar

Amin’s and the commissioners were appointed to decide minor cases up to Rupees

50. The Munsifs were selected out of the land holders in the Districts. Their job

was honorary and they only received a commission on the sums involved in the

litigation. Indians were only allowed to be Munsifs and not above that. Above the Munsifs
court was the Registrar’s court presided over by the European officers and

this court tried all civil cases up to Rupees 200 in each district. It was made

compulsory that the decision of the Registrars court should be counter signed by

the District Judge of the District Diwani Adalat and hence it was subject to revision.

All the judgements were passed in an open court and the judges were prohibited

from corresponding with the disputing parties. Above the registrars court was the

Mofussil Diwani Adalat presided by the District Judge. The District Judge decided

all the cases with the assistance of Indians familiar with Hindus and Muslims.

Above the Munsifs Court and the Mofussil Diwani Adalat were established the 4

provincial court of appeals located at Calcutta, Murshidabad, Dacca and Patna. The

provincial court of appeals supervised the working of the District courts and based

on their reports, the Sadar Diwani Adalat could suspend the District judges. In

certain cases, the provincial court of appeals had original jurisdiction:

a. When the Mofussil courts refused to receive or proceed with any cases.

b. The cases originating in their divisional town.

The provincial court of appeals were presided over English judges and heard all

civil suits up to Rupees 1000. Above the provincial court of appeal came the Sadar

Diwani Adalat headed by the Governor-General in Council at Calcutta and it heard

appeals from the provincial court in all civil cases above Rupees 1000. The final

appeal from the Sadar Diwani Adalat to the Privy Council was in disputes above

Rupees 5000.

4. Under the Cornwallis code it was provided that the personal laws of Hindus and

Muslims would be applicable in the cases relating to marriage, inheritance, caste

and religious usage and institution. All the native law officers were to be appointed

by the Governor General in Council and they were to assist the various civil courts.

5. The Cornwallis code underlined the principle of the rule of law where it was clearly

stated under Section 10 of regulation III that all the public officers including

collector would be subject to the court’s jurisdiction for their official acts. And

these public servants would be personally liable for any violations of the regulation. The
aggrieved party had a remedy to approach the court against corruption or any

excesses done by the executive.

6. The Cornwallis code in order to ensure dispensation of cheap justice abolished the

court fees. It was provided in the code that the litigants would only be charged the

pleader’s fee and the charge of summoning the witnesses but no court fee. This

provision was based on good intention but tremendously increased litigation.

7. The Cornwallis code under regulation IX integrated the entire administration of

justice, both civil and criminal. The magisterial powers of the collector were taken

away and they were given to the district Adalats. The District Judge therefore
exercised both judicial and magisterial powers together. The collector only looked

after the collection of revenue in the districts. Under the code, the circuit and the

provincial court of appeal were united and they came to be called as the provincial

court of appeals and circuits with their divisional headquarters at Calcutta, Patna,

Madras and Dacca. The provincial court of appeal and circuit dealt with both civil

and criminal matters. The District Faujdari Adalat presided over the over by the

Indian officers were abolished. Petty offences were taken by the District judge but

cases of serious offences were sent to the provincial court of appeals and circuits.

The judges of the circuit courts travelled throughout the division twice a year. They

decide criminal case with the help of Qazis and Muftis. The provincial court of

appeal and circuit could award the sentence of death and life imprisonment with

subject to the confirmation by the Sadar Nizamat Adalat which was the highest

court of appeal in criminal cases. In fact the Governor General in Council enjoyed

the powers of pardon or commutation of punishment.

8. Under regulation VII of the code, the profession of law was created and organised

in India. The code laid down the legal ethics and the code of conduct to be followed

by the legal practitioners. They were to assist the illiterate litigants who were

unfamiliar with the technicalities of the court system and the laws. To be a good

legal professional the code stressed upon legal expertise, integrity and competence

in the field of law. In this context, the court was allowed to issue certificates about

their qualification and honesty and they were to assist the judges in administering

law. Each pleader attached to a court had to take an oath of honesty. Those found guilty of
misconduct were punished and the punishments were also laid down. For
example, those accused of charging high fees were dismissed. Those who

committed fraud against their clients or indulge in malpractices were punished by

initiating court proceedings against them. Those who delayed the cases were fined

heavily with damages.

9. Under the code of 1793, Cornwallis introduced the uniform pattern of regulations.

Prior to the court, some of the regulations were in the form of manuscripts. If they

were printed there was no uniformity in drafting. Under the code it was laid down

that every regulation would begin by the preamble stating the objectives of

regulation. It was followed by a short title to state the subject matter of the

regulation. Regulations were further divided into sections, sub-sections which were

duly ordered in serial numbers. Further, a complete and annotated regulations in a

year was properly maintained for an easy reference while administering justice.

Both the legal and the public practitioners were clear about a legal position in any

particular issue.

10. Lord Cornwallis introduced the permanent settlement in land revenue wherein

under the settlement the zamindars came to be regarded as the land owners and they

were to pay the revenue to the government on a fixed date.

EVALUATION:

1. Warren Hastings did not make much changes in the administration of criminal

justice. Cornwallis introduced reforms in the criminal justice which would continue

with few changes till 1947.

2. The separation of judicial and revenue functions foreseen by Warren Hastings and

only partially implemented by him were finally completed by Cornwallis and he

separated the revenue and judicial matters.

3. Cornwallis introduced the principle of rule of law as opposed to the rule of

individual whim of the government officials.

4. The excessive power to the magistrate cum collector was removed by Cornwallis

and he restored the balance of power by introducing the principle of checks and balances. In a
district, the power was equally shared between the collector and

District Judge. This measure was introduced to prevent misuse of power.

5. Cornwallis relied on the system not on the personnel. This made the entire

machinery slow moving, cumbersome and complicated. This increased the

pendency of cases. The principle of separation of power was not followed at the

highest level in India and once again the executive dominated the judiciary.

Similarly the Indian Munsifs were drawn from the zamindar background which was

again a deviation from the principle of separation of powers.

6. Indians were excluded from positions of responsibility and Cornwallis held the

Indians in contempt. However the corruption among the Indian officials could also

have been imbed by increasing the salaries just as was done in the case of English

officials. This reduced the efficiency in administration as the number of English

men were less in India and they were ignorant about Indian custom and practices.

ADALAT SYSTEM: WARREN HASTINGS

Warren Hasting was the Governor of Madras. He was transferred to Bengal in 1772. As

Governor of Bengal, Bihar and Orissa, he prepared the First Judicial Plan in 1772. It was the

first step to regulate the machinery of administration of justice. The plan being a land mark in

the judicial history became famous as “Warren Hastings Judicial Plan of 1772”
Warren Hasting was appointed as Governor of Bengal, he started his efforts for

eradicating the evils in the administration of the justice and revenue collection. He abolished

the system of “Double Government” and executed the Diwani functions through the

Company’s servants. He appointed a committee consisting of Governor and four members of

his Council to find out the causes of the evils in the existing judicial administration and

revenue collection. The committee was also to prepare a plan for the administration of Justice

and revenue collection. The committee under the Chairmanship of Warren Hastings prepared

the First Plan in 1772. This is known as Warren Hastings Plan of 1772.

JUDICIAL PLAN OF 1772

The first judicial plan was prepared by the Committee of Circuit under the Warren Hastings

chairmanship. Warren Hasting administrative plan divided territory of Bengal, Bihar and

Orissa into number of District. In each district an English servant of the Company was

appointed as collector who was to be responsible for the collection of revenue.

Under this plan the whole of Bengal, Bihar and Orissa were divided into districts. The

district was selected as the unit for the collection of revenue and for the administration of

civil and criminal justice.

Courts of Original Jurisdiction

Mofussil Faujdari Adalat –

In every district Mofussil Nizamat or Faujdari Adalat was established to try all criminal

cases. The Adalat consisted of Kaziz, Mufti and Moulvies. The Moulvies interpreted the

Muslim law of crimes. The Kazis and Mufti gave Fatwa and render Judgment. In this Adalat

Collector exercise general supervision over the adalat and saw that no corruption was made in
the cases. The judgment was given impartially.

This Faujdari Adalat was not allowed to handle cases where punishment was death

sentence of forfeiture of property of the accused. Such cases went to Sardar Nizamat Adalat

for final order.

Moffussil Diwani Adalat-

It was a court of civil jurisdiction established in each district. The collecter was the

judge of this court. In suits regarding inheritance, marriage, caste and other religious usages

and institutions the court was required to apply “the laws of the Koran with regard to

Mohammedans, and those of the shastras with the respect to Hindus.” In matters of Hindus
and Muslims the court was helped by pandits and kazis respectively, who expounded the law

to be applied by the judge.

Small Causes Adalat –

As Name Says this Adalat decided petty cases up to Rs. 10/- the head farmer of the

village became the judge. This system was designed to save the travelling expenses of poor

farmers as they did not need to travel to the district place for justice.

Establishment of Sardar Adalat –

Firstly, two courts were established namely Mofussil Diwani Adalat and Mofussil

Faujdari Adalat over them two superior Courts were established. Namely Sardar Diwani

Adalat and Sardar Nizamat Adalat. The Sardar Diwani Adalat was consisted of Governor and

member of the Council and was to hear appeals from Mofussil Diwani Adalat. In the case of

over Rs. 500/-. The First sitting of Sardar Diwani Adalat was held on 17th March 1773. On

each appeal of 5 percent was charged. The appeal were to be filed in the Adalat within 2

months from the date of the judgment decree given by the Mofussil Diwani Adalat.
Appellate CourtsThe following two appellate courts were established-

Sardar Nizamat Adalat – Sardar Nizamat Adalat consisted of an Indian judge known as

Daroga- e- Adalat. Who was to be consisted by the chief Kazi, Chief Mufti and Three

Moulvies. Nawab appointed all these persons as per the advice of Governor. In case of death

sentences punishment deal warrant was made by the adalat and signed by the Nawab as the

head of Nizamat.

Sadar Diwani Adalat- This court was composed of the Governor and council and heard

appeals from the Mofussil Diwani Adalat where the suit value exceeded Rs.500

The governor and Council supervised this adalat to control and reduce the corruption

all cases were ordered to maintain registers and records. Any case older than 12 years was not

accepted. District Courts forwarded their records to Sardar Adalat.

In civil cases when Plaintiff field a case defendant accused person was given only

limited time to give answer then examine the witness and give the decree pass the final

orders. The plan tried to reduce the expenses of people with this plan officers like Kaziz,

Muftis were given salaries. Before this plan judge charged the commission but the new plan

abolished this law and introduced the court fee system where fee went to government. After

this plan and establishment of Courts for common Indians it became easy to approach the

judiciary. Warren Hasting was very intelligent person he purposefully did not take the full

charge of criminal justice system and kept the puppet Nizam alive. He did not change the

forms and when possible tried to show case that company respects the Nizam like case Nizam

got the power to sign the death sentences. In other clever intelligent system Warren Hasting

kept alive was that following Hindus Laws for Hindus and Muslim Laws for Muslims. In this

Plan Collector got the many powers Collectors was the administrator Tax Collector, Civil
Judge and Superior over the Criminal Courts with this Collectors for the unlimited powers

and Warren Hasting knew this the Collectors will become corrupt and he already told the

Company directors of the Company understood the fear and reality of this Plan. In the year

1773 Company directed the Calcutta Council to withdraw the Collectors as they became very
corrupt. After this Calcutta government introduced new plan for the collection of revenue and

administration of justice on November 23rd 1773 and put into force in the year 1774.

JUDICIAL PLAN OF 1774 –

With the plan collectors were recalled from every district in place of collectors an

Indian officer was appointed called Diwan or Amil Diwan got the power to collect the

revenue as well as act as a Judge in the Mofussil Diwani Adalat. The territory of Bengal,

Bihar and Orissa was divided into 6 divisions with their headquarters at Calcutta, Burdwan,

Murshidabad, Dinajdore, Dacca and Patna. In each division many districts were created, the

complete Bihar came under the Patna Division.

A provincial council consisting of 4 or 5 English servant of the Company were

appointed in each division to supervise the collection of revenue and to hear appeals from the

cases decided by the Amil and Indian Diwan. The appeals from this Provincial Council were

allowed if the case amount was more than Rs 1000/- the appeal went to Sardar Diwani

Adalat. This time also Warren Hasting new that the Provincial Council will do the more harm

and more corruption then the collectors. Warren Hasting thought this plan as temporary plan

but regulating act was passes in this time and Warren Hasting could not change the Plan until

year 1780.

JUDICIAL PLAN OF 1780 –

The Indian Civil procedure Code prepared 1780. Warren Hasting knew that the
Judicial Plan of 1774 was not perfect and when Warren Hastings again got the chance and he

made changes to the Judicial Plan of 1774 on April 1780. New plan was introduced as per the

Plan of 1780. Judicial and Executive functions were separated. .

Provincial Council –

No Judicial work only revenue related work, collection and revenue cases. But with

this plan the problem was that area was vast and Adalat were few to administer those large

areas, because of this cases were more time was limited with the judges and this arrears piled

up in every Adalat. 2nd problem was that witness have to travel lot to reach the Adalats.
There

was only one Adalat in the whole Bihar, because of this people thought is better not to file the

cases in courts as filing cases in court meant delayed justice, physical harassment waste of

time and money.

As per the Judicial Plan cases up to Rs. 100/- were referred to the person who stayed

near the place of litigant but before this. It was compulsory to file the case in Adalat and 2nd

problem was that the person who works as a Honorary Judge and he did not get any salary.

The Zamindar or Public Officer acted as an Honorary Judge and they charged money for this

and also Zamindar got the chance to do corruption as he became the Honorary Judge. Warren

Hasting was not satisfied with the Plan of 1780 he always thought about the improving

Judicial System in India.

On 29th September 1780, Hasting proposed in the Council that Chief Justice, Sir

Elijah Impey be requested to accept the charge of the office of the Sardar Diwani Adalat.

Impey accepted this offer. He remained in sardar Diwani Adalat for a year but he

introduced lot of reforms in Sardar Diwani Adalat. Impey drafted many reulations to reform
the Adalat on November 3rd 1780. First reform regulation was passed to regulate the
procedure of the Diwani Adalat. As per this rule he was allow to take the help of Hindu

Pundits or Muslims Mulla if it was necessary to understand the cause or case.

Impey compiled a civil procedure code for the guidance of the Sardar Adalat and

Mofussil Diwani Adalat, it was the First Code of CivilProcedure to be prepared in India. It

was promulgated by the Council on July 1751 in the forms of regulation it was the digest of

the Civil rules. The Code consolidated at one place a detailed Civil Procedure. The code

contained 95 clauses and with it all the previous regulations regulating to civil procedure

were repeated. The code of 1781 clearly defined the functions, power and jurisdiction of

Sardar Diwani Adalat.

This code was translated in person and Bengali language that time in India. Impey

was doing great job, but in England, people were not happy with the impey because of

following reasons Impey was appointed as the Supreme Court judge to monitor the Company

affairs in India. But in India Impey stated to work as the Judge of Sardar Diwani Adalat,

accepting this violated the Regulation Act. Because of other job they believed that the Impey

would not do the Justice with the job of Supreme Court, because of all above reasons on 3rd

May 1782 in England House of Commons adopted a resolution requesting the Crown King to

recall Impey to answer the charge of having accepted an officer and violating the Regulation

Act. After this Impey left India on 3rd December 1782. From the Impey appointment one

should learn that whatever post or job may be the concern person must be studied in the

profession.

Regarding Criminal Justice System Hasting took following Steps –

Machinery was created for the purpose of arresting Criminal and bringing them before
the Fouzdari Adalat for the trial. This system never existed in India before this a new

department office of the remembrance was created at Calcutta to keep watch on the

functioning of Criminal Adalats. The department was to work under the Governor General.

The head of the department was known as Remembrance of Criminal Courts. All Criminal

Courts were required to send periodical reports to this department. Everything was done as

per the Muslims Criminal Law and Hastings was not happy with he tried his best but

Company heads did not accept his views because of this Criminal Justice System, every one

made using corrupt ways.

Merits –

1) The personal laws of Hindus and Muslims were safe guarded.

2) District was selected as a unit of the administration of justice and collection of the revenue.

3) The jurisdiction of the Diwani and Faujdari Adalats were clearly defined.

4) The judges of these Courts were Englishmen and they did not have the knowledge of the

personal laws of Hindus and Muslims, but this defect removed out to the large extent of

appointing native law officers.

5) The commission basis was replaced by the court-fee which was to be deposited with the

Government and not with Judges. This changes was made so that Judges ceased to have any

personal interest in a particular case. Thus the change was made to promote impartial and fair

justice.

Demerits –

1) Less number of courts –

The head farmers were given power to decide petty cases up to Rs. 10/- in fact it was

necessary to have more subordinate courts keeping in view the population and the population
and the area of each district.

2) Concentration of Powers –

Administrative, Tax collection and Judicial in the hands of the Collectors. The Collectors was

the Civil Judge as well as Supervisor of the Criminal Courts. It was impossible for the

collectors to devote time and energy to regulate all these affairs.

Lord William Bentinck’s Judicial Reforms (1828–1835)

Lord William Bentinck served as the first Governor-General of India (1833–1835) and was
Governor of Bengal (1828–1833). He is credited with laying the foundation of modern
judicial administration in India.

I. Background of the Judicial System Before Bentinck

 India under the British East India Company had dual judicial systems:
o Presidency Towns (Calcutta, Bombay, Madras): followed English law via
Supreme Courts.
o Mofussil areas (interior regions): followed Company’s Adalat system, with
Persian as the court language.
 The system suffered from:
o Inefficiency and delays.
o High cost of justice.
o Corruption and lack of trained personnel.
o Discrimination between Indians and Europeans.

II. Key Judicial Reforms Introduced by Lord William Bentinck

1. Abolition of Provincial Courts of Appeal and Circuit (1829)

  These courts were established earlier by Lord Cornwallis, but became highly
expensive and ineffective over time.
 Bentinck abolished them through administrative orders.
 Their functions were transferred to newly created Commissioners of Revenue and
Circuit.

2. Appointment of Commissioners of Revenue and Circuit

 Each province (e.g., Bengal, Bombay, Madras) was divided into divisions.
 In each division, a Commissioner was appointed.
o Had dual responsibilities: Revenue collection + judicial powers (especially
criminal jurisdiction).
 Helped to streamline administration, reduce costs, and improve accountability.

3. Reorganization of the Sadar Courts

 Sadar Diwani Adalat (civil appellate court) and Sadar Nizamat Adalat (criminal
appellate court) were the apex courts under the Company.
 Bentinck:
o Strengthened their working with better staffing.
o Improved appeal procedures.
o Promoted speedy justice by fixing time limits for cases.
o Started maintaining proper records of cases and judgments.

4. Language Reform – Introduction of Vernacular Languages

 Earlier, court proceedings were conducted in Persian (official court language since
Mughal times).
 Bentinck replaced Persian with vernacular languages (e.g., Bengali in Bengal, Hindi
in North India).
 o Made justice more accessible to the Indian population.
o Helped in increasing public confidence in courts.

5. Training and Legal Education

 Encouraged the training of Indians in law to serve as law officers, pleaders, and
judges.
 Laid the foundation for the future Indian Bar.
 Supported the idea of establishing law classes and institutions to train native legal
professionals.

6. Jury System Experiment

 Inspired by English criminal procedure, Bentinck tried to introduce trial by jury in

the Presidency towns.
 Faced limited success due to:
o Cultural and linguistic barriers.
o Lack of legal awareness among Indian jurors.
o British prejudice against the competence of Indian juries.
 Nevertheless, it was a first step toward participatory justice.

7. Abolition of Sati (1829) – A Socio-Legal Reform

 Though not purely judicial, this reform had major legal implications.
 Through Regulation XVII of 1829, Bentinck outlawed the practice of Sati (widow-
burning).
o Declared Sati as culpable homicide punishable by law.
o This decision was based on:
 Humanitarian grounds.
  Strong opposition from Indian reformers like Raja Ram Mohan
Roy.
 Need to reform social customs using legal authority.
 Marked the use of law as an instrument of social change.

III. Significance of Bentinck’s Reforms

Aspect Contribution
Uniformity Integrated different judicial systems.
Efficiency Reduced delays and increased accountability.
Cost-effectiveness Reduced expenditure by abolishing ineffective courts.
Accessibility Use of vernacular language increased public participation.
Legal Modernization Laid groundwork for codification and legal education.

IV. Critical Evaluation

 Bentinck’s reforms were pragmatic and administrative, not driven by ideological

aims.
 Some criticized the concentration of power in Commissioner’s hands (executive +
judicial).
 Yet, his reforms:
o Made the judicial system more efficient.
o Prepared India for the codification era (e.g., Indian Penal Code, 1860).
o Significantly improved access to justice for Indians.

V. Conclusion

Lord William Bentinck’s judicial reforms marked a watershed moment in Indian legal
history. He rationalized the existing systems, brought greater unity in administration, and
made justice more accessible. His efforts also reflected an early recognition of the need for
Indian participation in legal processes.