Rishabh Jain, 22011553, BBA-LLB(A)

Week 1 and 2 - Introduction to the course and legal history as a discipline + Administration
of Justice: Emergence of EIC and Royal Charters (Topic 1 and 2 from slides)

Email- which has 1

Course material- not many bulky readings, few articles

Books-
- MP Jain Center to Indian Legal Constitutional History
- Kulshetra- Landmark to Indian Constitutional History

"A lawyer without history is a mason"

MP Jain (chapter 1) justifies why he talks about only the british era- "the british period is nearest
to us and our presence is affected immediately than the past(the pre british era)".
however history which was before the british era could be useful too.

Reading: Indian Law- Mitra Sharafi

Why have scholars been so fixated on the colonial era, compared to the periods before and after?
1. Well preserved, accessible, and archival features according to Mitra have shaped the
field.
2. Language: i) preference for english, ii) lack of fluency in the other languages.
Preservation of non-english archivals is poor and limited in access.(usage of other languages
would lead to more focus on regional and community centric legal cultures and allow it to spread
across the country.)
3. Scholars outside of India and from a non-Indian background

How can this be solved?

Reading: Rohit De: A People's Constitution

- articles 32 and 226 allowing to challenge the courts in itself is a huge change from the british
era.
- Growing faith in the constitution is not just due to regime change but the emergence of
neoliberalism along with the increase in human rights groups in the 1990s.
- Law has become a more communicative force due to neoliberalism(more of free trade coupled
with a reduction in government spending) and globalization causing the fragmentation of state
authorities.
- Impact of the constitution- people invoked it against the state within a few days of it being
introduced.
 Rishabh Jain, 22011553, BBA-LLB(A)

- "Indian constitution was a product of elite consensus"

IMPORTANT PERIODS OF LEGAL HISTORY IN INDIA

- [VEDIC AGE]: right after the formation of a society in itself, there was a need for a justice
system. even in the vedic age, there was transcripts and engravings about what the laws were
then.
- Sutras: a pity formulation of a broad general principle
- Srautrasutras: for the vedas, tells history of religion
- Grihyasutra: how you form a religion and rights
- Dharmasutra: manual of human conduct- relation of a man and state.
Smriti played a great role in moulding life of Hindus.
Smritikars: Manu, Brihaspati, Yajnavalkya, Narada and Katyayana.
Smritis are higher than Stutis
- [HINDU PERIOD]: nearly 1500 years before the beginning of the christian era
- Social order, institutions and religious philosophy:
- Social Order- caste system AND joint family system
- Political system: independent states, Dharma- stuti based, king is subject to law
(important distinction to English(king is above the law) and French(laissez-faire)), good of the
greatest number of people is the most important..
- Religion: Vedic religion->buddism->puranic religion. Aims of life- Social Law
(dharma), economic well being (artha), work (karma) and salvation (moksha)
- Ancient and Administrative Units: Independent states-> province-> districts->cities-
>villages (though there were so many divisions all systems followed RAJYADHARMA, which
gave list of things that the head of the place should follow. Most of the things in Rajyadharma
are there in the constitution in the form of Directive Principles of State Policy(DPSPs) DPSPs
are non-enforceable parts of the constitution but talk about how government can act..)
- Administration of Justice:
- Constitution of courts: King's Court, Panchayats, Town Courts, Tribunals,
Family Courts
- Judicial Procedure
- Institution of Lawyers (not sure because nowhere in history have lawyers been
mentioned at all, however it is unlikely that society can function without a lawyer especially in
such a complex process)
- Appointment of Judges
- Trial by Jury
- Trial by Ordeal- Ramayan- sirta's trial by fire to check her purity.
- Crime and Punishment (punishments were caste driven)
'single individual should not administer justice'- cardinal principle. therefore all
these courts had more than one judge
Women were not allowed to be judges
Qualification and oath of impartiality is mandatory for a judge
 Rishabh Jain, 22011553, BBA-LLB(A)

- [MUSLIM PERIOD] : Causes of downfall of Hindu Kingdoms(due to better weaponary and

fighting amongst hindu states themeselves), Muslim Social Order- Political theory and
religion(initially there was no caste system and all men were considered equal, each man could
take 4 wives, the system was governed by Quran- Sunni and Shia), historical introduction of
Muslim ().
- TIMELINE-
- Sultanate of Delhi: Ghazni kept attacking India, 1191 Mohd Gaur came to India but
Prithviraj defeated him, but a year later he defeated Prithviraj, forming the Delhi Sultanate
- Administrative unities: Sultan and CM. Sultanate->province (subha)-> districts
(sarkars)-> group of villages (pragans)->villages
- Administration of justice: Sultan- surpreme authority to administer justice,
systematic classification and gradation of courts in each administrative unit.
- Judicial reforms of Sher Shah: he also established courts(separate for civil, known as
Munsif which are still prevalent and criminal courts), regulated police for the first time in India,
Moqoddams(head of village level council, to prevent theft and robberies), judicial officers
below chief provisional Qazi were transferred every 2 years(also followed by British) and other
judicial reforms
- Mughal Period: Babur established Mughal empire in 1526. Babur dies and Humayun
takes over in 1930. Humayun, babaur's son was defeated by Sher Shah Suri from 1540-1545.
- Judicial System:
- Admistrative Divisions
- Administration of Justice - separate department for it
- Judicial Procesure- 2 codes one for civil and one for criminal. Civil
procedure is very similar to today's procedure, plaint submitted by a plaintiff who the respondent
has to reply to etc. There were public prosecutors appointed in cases of Criminal cases. 2 females
required for testimony, only one man required for testimony
- Appointment of Judges and Judicial Standard- Aurangazeb gave an
account of this and laid out a strict code of conduct
- Institution of Lawyers: concept of govt advocates was developed by
Shah Jahan during his rule. Aurangazeb appointed people who assist poor litigants for legal
services.
- [BRITISH PERIOD]- Supreme court established in Calcutta in 1744. Three presidency towns-
Calcutta, Madras and Bombay. Adalat system- elementary stage , mostly Indians applying Indian
Law and English people applying English Law in Supreme Court. But in 1861 High Courts were
established so these 2 systems were merged.
- Emergence of East India Company-
- by the end of 15th century when many european traders came to india and
established trading units in India.
- Vasco De Gama in 1498 established a sea route which paved the way for many
european countries to come to india. Why sea? It was very difficult for the Europeans to pass the
then very strong Ottoman empire. Also sea is safer.
 Rishabh Jain, 22011553, BBA-LLB(A)

- In the 1500s many european nations started to follow, starting with the spanish
and portuguese.
- The British and Dutch were able to take more of an active role in trade with the
East Indies (NOT EIC).
- Dutch went to Queen Elizabeth and convinced them to give them a charter(a
deed given by a crown via a letters patent, this charter contains particular powers etc.). EIC is a
chartered company.
- The charter granted legislative power to the company. THe company became a
juristic person with the exclusive privilege of trade with the East Indies.
- Under the charter EIC was given a monopoly in the west of the Strait of
Magellan region AND the east of the Cape of Good Hope.
- Charter of 1600:British Period started from 1600, EIC is short form for "the
Governor and Company of Merchants of London trading into the East Indies". Life span was 15
years (extendable), EIC had exclusive trading rights, Persons without trading license were liable
for punishment and seizure and forfeiture of goofs by EIC, Charter of 1600 was ONLY for trade
and not intended to acquire the dominion of India.
- Management of affairs of EIC
- Democratic lines= all members (general court) elected
- Court of directors = (Governor + 24 directors) -> Officers->Clerks
- Legislative powers:
- Very limited
- No harsh punishment
- Cannot contradict English Law
- No Express powers to govern any territories
- King's Commission- allowing to punish those who break rules. For each voyage,
Elizabeth granted King's commission to individual voyages. But, after her reign, James I gave
the 1609 charter
- 1601- Eilizabeth issued commission to captain Lanchester
- 1609- James I issues a fresh charter to continue privileges of company in
perpetuity(subject to 3 year notice)
- 1612- Britishers came and settled in Surat
- Surat Factory- These acted as warehouses, offices and residencies
for the Britishers. Initially Surat was in the power of the Portuguese.
- Administration and Judicial Arrangements: it was not
very well developed, it was the president and council who administered. Civil Law- personal
laws- hindu and muslim. Criminal Law- Muslim Law. This led to the Firman (is below)
- 1615- James I conferreda general power to the company )subject to the
condition on death penalty- through a jury)
- 1616- Trial of Gregory Lellington - gregory had killed someone from the
company, the trial took place in Surat, and Gregory got a death penalty
 Rishabh Jain, 22011553, BBA-LLB(A)

- 1618- Thomas Roe, who was an ambassador of James I met Jahangir and
succeeded in gaining Jahangir's favor and the EIC entered into a treaty with the Mughal
Emperor.
- What was the treaty? Jahangir gave them a Firman(order)- EIC
secured privileges from him. Firman provided :
- Disputes amongst the Company's servants will be
regulated by their own tribunals
- English people were free to follow their own religion
- Local natives will settle disputed cases between
Englishmen and Hindus or Muslims
- Mughal Governor will protect the English people from all
sorts of oppression and injury.
-------------President and Council at Surat Factory had
Executive and Judicial Function, Judicial authorities as Laymen applied(people dealing with
these cases were laymen so suddenly the layman has to apply law), The
English exploited native judiciary, which were corrupt, to
their advantage.
- 1623- James I extended power of issuing commission to Chief Officers
in settlement to punish offences on land by British servants (provision for capital sentence) -
initially only during long voyages were granted punishment but James extended the purview of
this. In Ship Mary, it was reported to the governor that an offence was committed by a very old
man along with a young man, immediately he was given death sentence.
- Charter of 1635: Charles I permitted to establish a new trading body for the
purpose of trading with the East Indies under the name of Courteen's Association (later called
Assada company in 1649)
- Charter of 1657: Oliver Cromwell granted a new charter which amalgamated
the various joint-stocks into one joint-stock. The charter also ended the old rivalry between
Courteen's association and the old Company by uniting them into one.
- Charter of 1661: Given by Charles II, EIC entered a period of unprecedented
prosperity. He gave broader powers on company to administer justice.
- Extending the privileges of the company on new territorial lines:
governor and council of each factory to judge all persons whether belonging to the company or
living under them in all causes- civil or criminal, according to the laws of England. In case of no
governor-> Chief Rector was sent.
- Reorganized its structure: Reorganized a joint stock
- As the activities of the Company increased, the Charter of 1661 was
issued to the company and for the first time the Laws of Enfland were made applicable in the
territory of India.
- THese powers gradually started developing into a govt. for the locality.
- The 1661 was that it drew no distinction between the executive and the
judiciary and justice was required to be administered according to English law.
 Rishabh Jain, 22011553, BBA-LLB(A)

- [Charter of 1600 vs 1661]

- 1600 limited legislative power, 1661 extensive power
- 1600 power was with respect to company servants, 1661 anyone who
lived within company's settlements
- 1600 capital punishment could not be awarded, 1661 punishments
including death penalty could be applied
- 1600 designed to maintain discipline among servants of EIC< 1661
develop into a govt for the locality and give a judicial system to EIC's territorial possessions.
- ==COMMON THING==: both gave great rights to british, leaving
Indians at a disadvantage.
- ==Charter of 1668==: Further assisted the transition of trading body into a
territorial power. it authorized the company to make laws, orders , ordinances and constitutions
for the good govt of the Island of Bombay. Charles II in 1669 transferred the island of Bombay
as a dowry from Portugal for 10 pounds a year. The laws should not be contrary to the laws of
England. Charter also empowered the company to establish courts of judicatures similar to those
established in England for the proper administration of justice.
- ==Charter of 1683==: Granted by Charles II. It authorized the EIC to raise
military forces. Charter provided that a court of judicature should be established at such places as
the company might consider suitable, consisting of one person learned in civil laws and two
merchants- all to be appointed by the EIC- and decide according to equity, good conscience,
laws and customs of merchants b (CHECK PPT)
- ==Charter of 1686==: James II reviewed and added to the powers and
privileges of EIC. The company could:
- appoint admirals and other sea- officers in any of their ships, with power
of these naval officers to raise naval forces and exercise martial law over them in times of war
- establish Admiralty Courts
- ==Charter of 1693==: Another new company established under the name
**General Society**. Willaim III issued this charter with his wife Mary II
- ==Charter of 1698==: William III granted a charter where changes were made
to improve administration of the company. The charter created a Court of Directors and authority
and control over the affairs of the Company was entrusted to the Court of Proprietors.
- ==Regulating Act 1773==: Overhauled constitution of the EIC.
- Decline of Mughal Empire- started after the death of Aurangazeb in 1707.
- Organizational set-up of English Company's Factories and Settlements in India
- Legal Basis of the EIC's settlements in the three presidency towns- EIC exercised its
powers as the representative of the English Crown. Madras was granted to the Company by the
local Raja in 1639. EIC purchased Zamindari of the three villages which came to be known as
Calcultta, EIC exercised its authority under the Mughal Emperor's grant of Zamindars.
- ==ADMINISTRATION OF JUSTICE IN PRESIDENCY TOWNS==:
- Most these courts were not recognized by judges in England in these three
presidency towns.
 Rishabh Jain, 22011553, BBA-LLB(A)

- **Madras:** 22 July 1639- Francis Day got a piece of land from a king of
Chadragiri- originally called Madrasapatinam, in short ==Madras. ==
- First phase: 1639-1665 ---- 1661 charter granted extended territorial
powers to EIC. Initially Madras was just an agent and not a presidency town. Madras was
subordinate to Surat. Trade and commerce developed -> villages gained importance-> population
grew.
- White town- inside the fort- settlement of British and other
Europeans. Agents and and Council decided civil and criminal cases for the British people.
THeir powers were vague and indefinite.
- Black town- Villages nearby inhabited by native Indians.
Choultry court- to decide civil and criminal cases. Adigar as judge decided civil and criminal
cases. No other court/tribunal constituted. 1652 Adigar Kannappa was dismissed due to his
illegal activities and 2 Britishers were appointed (massive as this was previously only for
natives.)
- Second Phase: 1665-1686 -------- 1686 charter granted naval forces to
EIC.
- Charter of 1661 was not immediately operative in Madras
- Agency of Madras became a Presidency 1665. this was because
of the 1664 Asecntia Dawes case- first jury trial in India. Edward Winter- agent, he was charged
with certain offences so the company removed him from the agency and appointed foxcraft as an
agent. he became governor, but later Foxcroft got arrested by Winter. Jury system was slow and
many cases were pending as they themseleves were quite confused about the actual rules. Most
injustices happened not because of lack of power in the charter, but the lack of usage.
- New governor in 1667- brought in more regularity to the
justice system, and tried all the cases civil and criminal in British Law with 12 jury men.
- Even in Choultry courts, Indian officers were replaced by
Company's servants.
- For the very first time, a hierarchy of courts is established
and appeal system is there too.
- Three languages: Tamil, Malayalam, Portuguese.
- Third phase: 1686-1726 --------Admiralty court and Mayor's court
(corporation of Madras)
-
- Admiralty Court:
- Crime of piracy was Rampant on high seas
- 1683- Charles II mentioned the Admiralty court with
persons learned in the civil law and two merchants appointed by the company to decide cases on
mercantile and maritime law. (civil law because most places were governed by civil law.)
- 1686- same provisions were repeated in charter 1686
- Chief Justice is called Judge-Advocate
 Rishabh Jain, 22011553, BBA-LLB(A)

- In Madras it was started in 1686 with John Grey and two

other Englishmen. John Hill became Advocate General.
- Governor and COuncil held trails to enforce Martial Laws
- 1687: EIC sent from England Sir John Biggs (lawyer
learned in civil law) as Judge-Advocate. The governor and council relinquished the judicial
functions.
- Admiralty Court came to function as a General Court to
deal with all cases based on laws and customs of merchants and rules of equity and good
conscience.
- 1704: Admiralty court ceases to sit on a regular basis. Its
jurisdiction was referred to the Governor and Council.

- Corporation of Madras:
- - Mayor's Court was part of it
- Company issues a charter in 1687(compared to the other
charters where the crown is doing so), the EIC wanted to establish the court under its own
authority.
- 1688: corporation of madras with a Mayor, 12 Alderman
and 60 more Burgesses
- Mayor had to be English and had to be elected
- Mayor's Court:
- EIC Charter created Mayor;s Court with a Mayor and two
Aldermen (Justices of Peace)
- Exercised jurisdiction in civil cases exceeding three
pagodas and criminal cases with the assistance of Juries.
- Appeals went to the Court of Admiralty.
- John Biggs was the first recorder(advised and assisted the
mayor when it came to judgments), this was also problematic because since the appeals went to
the Admiralty courts and John Biggs was already in charge there, it does not make sense.
- Procedure was not definite.
- Death sentence was to be imposed against natives only
after 1712.
- Choultry Court
- After Mayor's court, these courts lose their importance.
- Two Aldermen constituted a quorum. they sat 2 days a
week.
- In criminal cases, punishments included- fine,
imprisonment, pillory, whipping and even slavery.
- Duties of Aldermen in the Mayor's Court was so arduous,
it became impossible to sit.
- CHoultry court continued its work in Madras till 1726.
 Rishabh Jain, 22011553, BBA-LLB(A)

- Standard of Justice:
- Administration of justice was crude
- Process was slow and tardy
- There was no principle of Substantive or Procedural Law
- No standard or criteria for imposing punishments.
- **Bombay**
- EIC 1668- rented it and got loans in return from the EIC.
- Administration of justice three stages:
- 1668-1683 (First Phase): starts with the charter of 1668 which
gave 3 powers: administer bombay, pass legislation in bombay, dispense justice in bombay. They
could also give penalties up to death. Every charter was subjected to the English law and cannot
be unreasonable. They could also make courts within the territory and thereby try people. Then
governor of Surat was Sir George Oxenden, and he traveled to Bombay to administer it. During
his time from 1668 to 1669(he died), Thomas Papillon gave some laws which were not enforced
during Oxenden's reign. THey were enforced during Gerald Aungier's time.
- Laws drafted by Oxenden:
- Freedom of worship and religious belief
- Impartial Administration of Justice
- Establish Court of Judicature to decide criminal
cases
- Registration of Sale of Lands
- Penalties for different crimes
- Military discipline and prevention of disorder and
revolt.
- Judicial system in 1670 (after Oxenden's death and during
Gerald Aungier's time)
- Divided bombay's seven islands into two parts- in
each division a ==divisional court== as established. Quorum of 3 judges, even Indians were
appointed as: -lesser availability of Englishmen and -wanted to get into good terms with the
population of bombay. Salary of all judges- NO SALARY. Dealt with small thefts.
- Appeals from divisional courts went to the
==Deputy Governor and Council==. They had both original and appellate jurisdiction. And a
jury was used to help them. Dealt with criminal cases.
- Standard of justice: Sine Qua Non - basis to have a
good judicial system is to have a lawyer act as a judge. George Wilcox was the judge.
- Judicial system of 1672
- Proclamation on August 1, 1672- English Law
was established and Portuguese law was abolished after traces being found since 1668.
- 3 courts- anything below 60 xerophins, need not
need to pay the fees. Justices of peace were there to examine the witnesses and make a report,
 Rishabh Jain, 22011553, BBA-LLB(A)

these were not exactly punitive courts. These reports are sent to another court which are sat once
a month and they are assisted by a jury.
- Court with George Wilcox
- Deputy Governor and Council
- Court of Conscience - Wilcox was the
judge. Any case of 20 Xerophins or below was dealt with here. Salary was imposed for judges-
2000 /- per annum.
- People were kept in prison's till they paid the
debts- this is how they recovered money. Jury of 12 Englishmen were there too to try civil cases
but in disputes between Portuguese and Englishmen, there was an equal jury from both of them.
(6-6)
- Nicholls came after Adams in 1675, he was a very
impartial judge. The salaries of Judges kept lowering and they wanted the Judges to be
subordinate to the Executive. Salary was 120 pounds.
- Garry 1677- Salary further reduced to 90 pounds
- 1683- Keigwin's Rebellion- rebel governor and he
abolished the current judicial system.
- 1684-1690 (Second Phase): Maritime Law, Good conscience and
equity and laws of merchants, person learnt with civil law along with two merchants
- 1684: Admiralty Court was set up under 1683 charter
- Dr. St. John (judge-advocate) and sir John Child
(governor of surat)
Under John - had power to try civil, criminal and
maritime
Problem between judge-advocate and governor of
surat - admiralty of court in bad terms with governor and council
- Johns vs Biggs- people who enjoyed the
confidence of the company enjoyed more powers.
- 1685- New court with Vaux (member of bombay council
and he had no legal training) as judge
- 1687- St. John was dismissed and Vaux took over
Admiralty Court too
- 1690- Bombay attacked by Moghul Admiral Siddi- Anglo
Mughal wars were going on. Aurangazeb sent forces to Bombay, led by Khan. This is called the
dark days as there were no courts from 1690-1718.
- 1718-1726 (Third phase):
- Court established on 25th March 1718- Governor Charles
Boone- CJ + 9 Judges
- Jurisdiction: Crivil, Criminal and Testamentary (relating
to will). Registration of sale of immovable property and administration of estates.
 Rishabh Jain, 22011553, BBA-LLB(A)

- Administration of justice waa according to equity and

good conscience, company's rules, customs and Law of England
- Moderate fees was charged, appeal to governor and
council and there was no provision of Jury trial.
- Indian judges did not enjoy co-equal status with british
judges
- Indian judges collectively were termed as black
judges and this created a presumption that they were subsidiary to the British judges.
- Indian judges were not counted in the mandate
- Indian judges were more like assisters than judges
and had little to no power.
- Difference between court 1672 and Court 1718:
- Juries in 1672 vs no Jury in 1718
- More number of judges, both Indian and British in
1718. And also inclusion of Indian judges.
- Portuguese in 1672
- Working of court: Sat once a week and decided all sorts
of cases. There were no written laws and most of the judgments was based on 'common sense.'
Capital punishments were given for Murder, Rape, Manslaughter and Treason. No lawyers, no
reports etc.
- Rama Kamti case: dark justice at Bombay. Facts: Rama
Kamti was a rich and influential person. THere was a case hoisted against him for helping a
pirate with his crimes, a dancing girl saw them meet. And in order to get evidence against Rama
Kamti they tortured his servants and he was sent to the prison. CJ Parker said that this should not
be done but his opposition was dismissed, because judges had lesser power than the executive.
- **Calcutta**
- 1690- troop of englishmen Job Charnock landed at Sultanati, banks of
Hughly river and constructed a factory called Fort William.
- 1698- company acquired Zamindari Rights in 3 different villages, from
Prince Azimush Shan (grandson of Aurangazeb) for an annual rent of 1195 /-. Calcutta,
Sultanati and Govindpur were the 3 villages.
- 1699- Caclutta acquired the title of a presidency town- meaning a
governor and council were appointed.
- Mughal Judicial System: (since EIC only acquired portions of Bengal)
- Zamindars: collect land revenue and maintain law and order. No
significant judicial power.
- Since the Qazi's became very corrupt(read below first),
people went to the Zamindars and the latter hence got power:
- Administered justice in all cases- civil criminal
and revenue
 Rishabh Jain, 22011553, BBA-LLB(A)

- Appeals lay to Nawab's court at Murshidabad (in

theory)
- Authority was confined to the capital
terriotory
- Outside of Murishabad, its presence was
not felt at all
- Nizamant (highest criminal court)
- Diwani (highest civil court)
- There was confusion of jurisdiction
between the courts.
- Zamindars could even award capital sentences
- Charged high fees in deciding civil cases
- Proceedings were summary and unsatisfactory
- No set body of law in existence therefore
**judgments were discretionary**.
- Qazi's court: Established throughout the country (in each sarkar,
parganah, city and even villages). They decided civil and criminal cases.
- Corruption and incompetence:
- Moghul administrative structure started
disintegrating; Nawab's authority weakened in Bengal; Degeneration in the ranks of Qazis set in.
- Offices remained unfilled or filled not by merit-
heredity and even lease
- Justice was not impartially enforced; it could be
purchased by money
- A general confusion prevailed and kind of vacuum
was created in the sphere of law and justice.
- Village Panchayats: decided all cases except serious crimes,
appeals lay to Qazi of Sarkar and then Chief Qazi of Sibah. Witnesses could not lie as everyone
in the village knew about all affairs and leaders could not be corrupt as they wanted to protect
their public image.
- Judicial system in calcutta:
- Zamindari functions of the company within the settlement
of Calcutta was entrusted to an English officer- Collector. Zamindar- member of the Governor's
council.
- Judicial powers in all civil, criminal, revenue cases on
Indian inhabitants.
- For criminal cases- zamindaris had the right to try petty
cases commited by an Englishman and serious crimes were tried by the governor and council
with the help of a jury under the 1661 charter.
 Rishabh Jain, 22011553, BBA-LLB(A)

- For civil cases- if the plaintiff is an englishman and the

defendant is an indian man, then the Zamindars had the right to try them. In certain cases an
arbitral tribunal was appointed.
- For revenue cases- functions of a Zamindar was to collect
revenue and they coudl try any case where there is such an issue and they could imprison people
until they paid their revenue for all cases.
- Appeals lay to the governor and council
- Though modelled on the pattern prevailing in other
zamindaries in Bengal, the judicial scheme in calcutta had few distinctive features.
- Political and commercial activities of the company were increasing day
by day and the EIC wished to avoid litigation.
- However, there was no suitable machinery for administering justice in
three presidency towns which the courts in England could recognise.
- The EIC at the same time was unwilling
- ==Charter of 1726==: Passed by George I ([this charter recognizes
them as the Royal Power.])
- Establishment of corporations
- 1 mayor (elected every year by retiring mayor and
Aldemen), 9 Aldermen (lifetime term or uptil they reside in the town), Burgesses elected by
Aldermen and Mayor. Governor and Council can remove the Aldermen but cannot appoint
them.
- Mayor's court
- Court of record- has power to punish for comtempt
- Power to deal with civil and tesamentary cases (probate
wills, letters of administration etc)
- Procedure
- Sheriff: could summon within the presidency town and 10
miles around it. Their role was to bring the defendants to the court. He was also empwered to
release the defendant on bail where suitable.
- Right of appeal
- Any judgment from the Mayor's court could appeal to the
governor and council within 14 days of the case. Cases with value of over 1000 pagodas can be
gone upto the privy council immediately.
- Justices of Peace
- governor and council along with 5 senior members of the
council will try criminal cases. petty cases- can be directly dealt with by the justices of peace.
with respect to serious cases, cases are reserved for quarterly meetings with the help of a grand
jury(determining if worthy of trial(indictment)) and petty jury (determining guilt).
- Legilsation
- governor and council were given the power to make laws
- delegated legislation: (examples today: RBI)
 Rishabh Jain, 22011553, BBA-LLB(A)

- can exercise power granted to them by the

superior legislature
- this charter recognizes them as the Royal Court and is
therefore recognized even in England.
- Consequences:
- Abolition of Admiralty at Madras and powers in Mayor's
court increased.
- All presidency towns established a Mayor's court.
- New system of appeals from Indian courts to Privy
Council.
- Importing English ideas of law and justice into India.
Adoption of doctrine of precedents.
- Courts derived authority directly from the king and thus
added to prestige and status to both courts.
- 2 demerits:
- No division of power between
- Lay people could still become judges.

![[Pasted image [Link]]]

- 1717-1726

- [POST-INDEPENDENCE]- Rohit De: A People's Constitution

Week 3 - Mayors Court and Adalat System (Topic 4 from slide)

MAYORS COURT
estbl in
madras - 17 aug 1727
bombay - 10 feb 1728
calcutta - dec 1727

==Charter of 1726==
- Issues by George I
- Is a landmark charter in indian judicial history and is called '*judicial charter'*
- Establishment of a corporation in each presidency town- each corporation had 1 mayor and 9
aldermen
- established mayors court
 Rishabh Jain, 22011553, BBA-LLB(A)

- There was local legislature in each presidency town, shifting the locus of the legislative power
from England to India
- Initiated a system of appeals from Indian Courts to the Privy Council in England (bridge
between the two legal systems)
- it continued previous traditions in two ways
- Legislative powers
1. justice continued to be administered by non-professional judges
2. no separation of powers between executive and judiciary as they were "intimate and
integrated"Legislative powers

a new leaf for the system

- formed uniformity
- judgements enforceable even in england
- 1726 charter is bridge btw indian and english judicial system

mayors court was only civil and testamentary

justices of peace dealt with criminal

post charter--
- natives faced difficulties because of mayors court
- they had no where else to go so they came here
- but this only applied eng law
- no express mention of jurisdiction over indians of this court
- major demerit is lack of clear jurisdiction
- executives charging the law and remained as judges
- conflicts b/w mayors court and executive
- now the mayors court has been estbl by the crown
- now the mayor has powers from the crown
- conflicting with the governor
- executive started to dictate terms to the mayors court - not abided

SHIMPEY'S CASE
key issues- whether natives' religious cases come under civil law purview
- whether a custody case can be treated as purely religious
[most modern family laws fall under specific religious tenets]
it was not actually religious
- under CPC s.9 - any civil matter can be dealt with by the court
so is this case of a civil nature?
- any case involving civil rights and obligations
only pure questions of religion - like how a ceremony is to happen
or only a social right
 Rishabh Jain, 22011553, BBA-LLB(A)

- cannot be dealt with by the mayors court

mix of issues - if the religious part is only incidental to the actual civil right issue
- then it can be dealt in this court actually
- though governor and council didnt allow it

ARAB MERCHANT CASE 1730

- case tried in bombay
issue: double jeopardy
- whether a previous conviction can prevent a future case put forward by the same person
- if its a crime how can the mayors court be concerned with it?
- can a civil and criminal case be tried at the same time?- because he is being tried for a civil suit
to get the pearls reinstated
- though the criminal proceeding of that man had alr been completed.
mayors court believed it had jurisdiction to try
- governor and council denied its jursidction

TORRIANO CASE
torriano and naish had a bet on some issue and could not agree on it
filed a case in mayors court
- said that he wouldnt be able to recover money cause naish immune
mayors elected annually
- 1 year period
the mayor had done the act in his personal capacity so should not be immune
- today: judge's protection act 1985
- only prevent prosecution for acts done in judicial capacity
issue: is reelection wrong if there is no descriptor in the charter on whether a mayor could be
reelected
- no express prohibition however
charter in madras presidency the company's charter of 1687
- it had said mayors can be reelected if the aldermen so choose
- if this hasnt been altered by later charters then it still stands
therefore governor and council may have been wrong

result of the conflict - [btw mayor and governor and council]

- the native inhabitants are greatest sufferers
- the governor and council usually sides with the natives
- atmosphere of unrest
- petition sent to court of directors of company
- by inhabitants

political changes in madras

 Rishabh Jain, 22011553, BBA-LLB(A)

- sept 14 1746 french capture madras

- madras became subordinate to pondicherry
- a blow to mayors court
- 1749 - english recaptured
- revived mayors court
- reestablishment of mayors court by charter of 1753 by george 2
- used this in favour to reconstitute courts entirely
- to remove defects of charter of 1726

charter of 1753
- ended disaffection b/w mayors court and government
- changed method of mayor and alderman appointment
- now aldermen appointed by governor and council
- mayor selected from 2 aldermen nominees given by the corporation [the
corporation is the umbrella for the mayors court]
- governor and council picks one of them
- *executive interference has increased.*
- before governor and council could only remove
- now a maker and unmaker
- mayor lost independence and autonomy
- subordinate to governor
- major defect was conflicts btw executive and judiciary
- indians were worried about the english law and lack of their customs being applied
- mayors court expressly barred to entertain cases b/w natives
- unless both parties agree for it to be taken here
- hindus wanted geetha oath and mayors court wanted pagoda oath
- they made a provision for oath only for christians
- others could administer any other form of oath so long as it weighs on their conscience
- mayor being immune
- now mayors court can take cognisance of a case related to mayor also
- but he cannot sit in the case
- mayor can be sued
- who gets the fines put into the mayors court?
- corp wanted it for governance
- government wanted it
- mayors court wanted it for their affairs
- provision added that fines sent directly to govt
- mayors court cant collect any money
- new court instated - court of requests
- pecuniary jurisdiction = 5 pagodas - 15 rupees [the upper limit]
- sit 1 time a week
 Rishabh Jain, 22011553, BBA-LLB(A)

- commissioners sit as judge - 8-24 of them

- cases even amongst indians
- procedure was apparently very successful in this court
- 3 sit in a quorum to try cases
- to discourage the people from going to mayors court for under 5 pagodas they imposed
a fine
- so that they would go to the court of requests

criticism of charter
- conflict continues -
- 1788 mayor said interlocutory application [this means that another proceeding is entered
into in the middle of the case - interim] should not be appealable to the governor and council
- such problems came up
- calcutta still had the zamindari system - indians had another option to approach
- this irritated the mayors court - conflict b/w them for jurisdiction
- in bombay and madras no other option existed
- executive upper hand
- judges ignorant of law still
- indefinite jurisdiction
- with respect to territory
- it was in the presidency town but it was not clear up to where they could take cases
beyond the presidency
- expensive appeals
- cause the privy council was in england - hard to reach and pay to go
- exclusion of indians [no actual system existed for them.]
- indians used to be black judges in madras
- 1726 charter removed them
- new charter of 1753 doesnt have the provision either

privy council is also called king and council

now mayors court abolished.

- calcutta -
- mayors court v. governor and mayors court v. zamindar
- house of commons in england made committee of secrecy 1772
- to look into mayors courts' affairs
- not dealing with rights of englishmen properly
- regulating act 1773 passed to deal
- forming supreme court in calcutta 1774
- mayors court gone
- not also estbl in madras and bombay though
 Rishabh Jain, 22011553, BBA-LLB(A)

- madras -
- mayors court continued till 1797
- natives didnt have an alternative option
- fort st george sent a letter to company that mayors court didnt have ppl skilled in law
1791
- these were the ppl who wanted admiralty court etc.
- company abolished mayors court under charter of 1798
- recorder's court estbl instead.
- when a person skilled in the law advises the mayor
- mayor + 3 aldermen + barrister (recorder)
- minimum 5 years litigating experience for barrister
- bombay -
- mayors court removed 1798
- also added recorder's court
- recorder appointed by crown
- sir william syer first recorder of bombay 1798

==ADALAT SYSTEM==
areas around presidency towns - mofussil areas
- system of law there

*territory of bengal*
- divided into subas
- each headed by subadar
- bihar, bengal and orissa
- nawab - appointed by emperor
- defacto rulers to rule their own territory
- bengal's nawab had many rights
- richest province
- first territory where adalat was set up was in 1772
- 'bengal was the experimentary laboratory for the adalat system.'

*battle of plassey -* 1757

- first battle the british won
- nawab of bengal siraj ud daulah vs. the EIC
- went to capture british factory - calcutta fort
- british led by clive.
- mir jafar was bribed to backstab siraj
- he was made puppet ruler
- had to pay enormous sum to them
 Rishabh Jain, 22011553, BBA-LLB(A)

main reason -- to indirectly exercise power over the region - without invoking jealousy from the
other companies
mir jafar later tried to curry favour of dutch company
mir qasim was appointed after that
- fought in the battle of buxar against EIC
- didnt want to oblige to everything british said
- gave a lot of benefits to indian traders too to empower them
- angered EIC
- approached mughal emperor shah aalam 2

mir jafar became nawab again

the mughal emperor now gave them rights to diwani
diwani covers revenue and civil cases [this power didnt belong to the EIC when they only had
nawab under their control]
nawab covers law and order and criminal justice + military
reasons for division of authority:
- communication w/ central control is hard
- difficult to manage a whole province - division of labour helps
- vesting all powers in one person - threat to oppose the main mughal emperor
nawab had military powers but not money and vice versa
[dual administration system]
- diwani work was taken over by EIC after this.

a deal made with emperor to send some of the funds collected to EIC after govt took its share

*execution of diwani functions by EIC*

- firman of emperor transfered the privilege
- didnt give limits or descriptions of the powers they were giving
- company had free will
- had to administer civil justice and collect land revenue
- inidgenous machinery was made to adminisster the function
- mohammed reza khan in mushidabad and raja shitab roy in patna made to control

current nawab is a minor, mir jafar's son

- made to delegate most of powers to a deputy - naib nazim
- mohammed reza khan made into this
- now diwani and nawab job together in a way
no one felt accountability for the welfare of the people of region
- those with administrative responsibilities had no power - the indians

new governor of calcutta after clive 1796 - verelst

 Rishabh Jain, 22011553, BBA-LLB(A)

- to investigate corruption
- and new measures for revenue collection
- appointed supervisors as company servants (wasnt successful because of the fact that there
were less supervisors, and appointed ones had lesser experience)
- asked to collect info on all diwani set ups
- encourage arbitration where parties pick a judge
- conditions for capital sentences
- final authority should be the naib nazim and not the nawab.
- all cases administered need to be registered and recorded

qazis and brahmins summoned to mushidabad to produce a sanid

- they didnt want these people to administer justice on their own without govt perms

schemes fail
- insufficient no. of supervisors
- no security of life and property in bengal -1771 acute famine
- 1/5th of pop wiped out
- too many duties
- inexperienced in administration
- also were corrupt - abused position
- the company directors decided the indians were the ones misappropriating
- new judicial system set up

WARREN HASTINGS PLAN 1772

main aim = set up efficient system to collect land revenue
- this needs an efficient system of justice administration
- revenue only comes when the place is prosperous
- no law and order issues

state of affairs in bengal at this time

- zamindars abusing power
- qazis - not appointed by merit but hereditary/auctioned ``[see calcutta administration]
- corrupt judges

JUDICIAL PLAN 1772 - warren hastings

- collector for each unit - 4 courts
- *mofussil diwani adalat* - each district - lower courts - collector is judge
- civil and revenue jursidiction
- quran and shastras for religion and marriage laws
- warren hastings didnt want to involve in personal religious laws
- judge is englishman
 Rishabh Jain, 22011553, BBA-LLB(A)

- didnt have knowledge of religious laws

- 2 other ppl = qazi and pundit to assist collector
- pecuniary jurisidiction - smaller cases - their decision is final up to 500 rupees
cases
- *mofussil faujdari adalat* - district court - criminal cases
- judge is a muslim law officer appointed by nawab [not exactly under company
purview]
- 3 types = qazis, muftis, maulwis
- maulwis guide in giving judgements/fatwas
- collector supervised here
- petty offenses = jurisdiction
- death and forfeiture of property go to sadar nizamat adalat
- *sadar diwani adalat* - in calcutta
- governor and council = judge
- appeals from mofussil diwani adalat
- civil and revenue and testamentary
- over 500 rupees
- only for appeal though
- court fee of 5%
- can only appeal after 2 months of original judgement
- *sadar nizamat adalat* - appeal court for criminal cases - also in calcutta
- judge daroga i adalat
- nawab appoints
- to assist him 3 other chief qazis, muftis, maulwis
- they deal with appeals, death and forfeiture cases.
- governor and council supervise
- *small cause adalat* - very petty cases - up to 10 rupees
- estbl in every pergunnah - smaller than a district
- revenue and civil
- head farmer of area is judge
- personal law safeguards - good to give allowance to natives to be ruled by own laws
- other *procedural safeguards*
- for impartiality, open courts to deal with cases
- district adalats were required to give abstracts of records of cases to higher courts
- to ensure lower court judges are not corrupt
- supervision
- cases older than 12 years cannot be tried [modern day limitation act]
- salaries to qazis to reduce corruption
- putting fees to the courts that is fixed so it is not judges' discretion
- zamindar no judicial powers.
 Rishabh Jain, 22011553, BBA-LLB(A)

defects in plan -
- less courts
- very few adalats
- less than 10 rupees for the small causes court was very low
- had to go to district for most adjudication
- should be more levels perhaps
- concentration of power
- too much in collector's hand.
- judge of mofussil, collects revenue, supervises the criminal court in district,
administrator of district
- corrupt
-
- nawab didnt have military powers - couldnt harshly enforce the criminal justice system
- not an efficient system
- therefore warren hastings interfered
- the nawab's head is in mushidabad and yet the sadar nizamat adalat is in calcutta
- injustice to the nawab.
- transgression of powers
- therefore he respected the diff b/w diwani and nawab setup

positives
- decentralisation
- natives get their own laws in adjudication
- whole plan followed the nizam and diwani set up

new plan of 1774

- removed collector
- indian officers put in place - diwans in each district
- they also judged
- additional court - provincial council
- 6 divisions territory of bengal
- 6 capitals in each division
- 1 provincial council per division.
- 4-5 englishmen as judges
- appeals from mofussil diwani adalats [below the higher sadar courts]
- if over 1000 rupees then appeals to sadar
- link btw mofussil and sadar
- could also collect revenue w/i territory
key difference: any case below 500 could not be appealed
- now can be appealed to provincial council
 Rishabh Jain, 22011553, BBA-LLB(A)

- more accessible courts

- provincial are closer for appeal
- but were also corrupt
- hastings felt it was more likely to be corrupt cause more senior englishmen led it
- worse than collector

Battle of Buxar- 1764

Mir Qasim was the administrator
Was loyal initially
Sold away some parts to EIC
Mir Qasim was replaced by Mir Jafar as the Nawab of Bengal
Mir Qasim entered into Mughal ruler Shah Alam II and Shud-ud Daula
Mir Qasim and his combined forces vs Hector Munro
Qasim ran away

outcines
- Shah Alam granted diwani rights over bengal (right ti collect taxes to british)
- gave all rights to bengal for 26 lakhs/year
- Shuda-ud-Daula : fine 50 lakhs
- Jafar death- pension to his son and took over the entire adoministration of Bengal
1765- clive brought in dual govt concept
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 4 - Regulating Act 1773 (Topic 5 from slide)

Regulating Act, 1773

Circumstances prior to the 1773 act

- major issue was the relationship of the parliament to the company (was very vague)
- the company had manifested itself into having political involvement is why the
parliament wanted to intervene.
- 3 options to the parliament
- completely take over the affairs of EIC
- completely leave the company as it is to manage its own affairs
- since the above two were very extreme, they exercised the third option- role of partners,
where parliament is the dominant partner

1767 Act allowed the company to have territorial control over what the EIC had acquired in
India, the EIC had to pay 4 lakhs per year in order for the crown to leave the company to manage
the affairs.

criticized because you cannot just blame the EIC but also the crown

State of affairs in India

- Bengal, Bihar and Orissa- utter confusion due to the battles
- company servants were exploiting their powers and were engaging in private trade and were
extremely corrupt. Nabobs- nickname for people
- Bengal Famine- made british people think that this has happened due to the administration.
- nawab of mysore(haider ali) had defeated the company in the first Anglo-Mysore war

EIC approached the Parliament for a loan, because the people were going for personal trade and
being corrupt. another reason was that most of the shareholders were demanding higher
dividends from the company and they kept getting it. another reason was the 1767 provision (4
lakhs per year)

parliament set up two committees

- secrect: established by the house of commons to examine the state of affairs.
- select:
based on the reports of these two committees the parliament passed two acts in 1773

- first:
- granted the company a loan of 1,400,000 euros @4% interest
- forbidden to declare dividends over 6%
- required to submit accounts every six months
 Rishabh Jain, 22011553, BBA-LLB(A)

- Second:
- regulating act of 1773
- introduced by lord north as the regulating bill.

**Regulating Act 1773** (King George III was the king when this act was passed)
- introduced by lord north as the regulating bill
- reforming the constitution of the company
- reforming the company's govt in India
- providing remedies against illegalities and oppressions committed by the servants of EIC
- it was passed on June 10th, 1773 and received royal assent on June 21st, 1773.

Features of 1773 act (to retain the possession with the EIC, first attempt by the parliament to
control EIC affairs as well as territories in India)
- Election of Directors:
- provision of the court of directors were changed- 4 years given from 1 as 1 was too less
a time to have any influence.
- 1/4th of the directors would retire every year
- people are not eligible for re-election
- allowed stability and continuity as they wanted to give supremacy to the court of
directors over the shareholders
- controls on directors: corresponding to the indian officials are to be sent to the govt in
England, with respect to military and civil affairs were to be sent to the secretary of state.
revenue went to the treasurer
- any person who had 500 pounds or more of shares was given the right to vote, NOW IT
WAS INCREASED TO 1000 pounds in order to be eligible to vote
- DEMERIT: any person who had 3000 pounds of shares had 2 votes and 10,000 had 5
votes. people who were rich and were able to afford more shares had more influence over the
company.
- Appointment of Governor-General and Council:
- new position- governor general and council and was in Calcutta, while others will have
governors
- warren hastings was the first governor general
- 4 counselors with the governor general. 3 of these 4 people were new people who came
from England in order to remove any vested interest. Hastings and Richard Barwell had been
working on this for a long time before these 3 people came.
- DEMERITS: new people did not know the state of affairs in India AND these people
were not fine with most of the policies hastings were bringing in leading to problems b/w the
governor general and the counselors. (each counselor and governor general had ONE vote each,
however the latter had a CASTING vote. 3 of the new people teamed up against hastings as they
 Rishabh Jain, 22011553, BBA-LLB(A)

had the majority vote leading to hastings not being able to exercise control UNTIL one of the 3
people died in 1776.)
- powers of the governor general and council
- governing the company's territories
- administer revenue
- supervise and control the military and civil affairs of Bengal
- in case of imminent necessities, when sending it to the governor general would take
time, the governor of Madras and Bombay could then take decisions without taking persmission
from the governor general. (drawback was that imminent necessities was not exactly defined)
- governor general has to inform the court of directors. court of directors will have
supremacy over the governor general
- Establishment of Supreme Court of Judicature
- in 1774 charter was made to establish the SC
- provisions were made in 1773 itself
- SC will have (both of whom should have min. 5 years standing in the bar, this court had
civil, criminal, ecclesiastical, admiralty)
- chief justice
- 3 puny judges
- wanted better administration of justice beyond what the charter of 1753 gave.
- indian judge can be removed at pleasure
- english judge can be removed via a proceeding in the parliament (in practice)
- (jurisdiction)
- any british subject or his majesty's subject (wider term) residing within bengal,
bihar and orrisa
- any person employed by the EIC
- any inhabitant of bengal bihar or orrisa
- recognized as a court of record
- had pwoers to formulate rules to govern themselves
- immunity for the governor general and council from being tried in the supreme court (to
avoid unecessary harassment)
- they will also act as justices of peace (deal with criminal cases and sit in quarterly
sessions under S38 of the 1773 Act)
- provisions were made to appeal from SC to the privy council in England
- Legislative Power under the Act
- powers given in 1726 and 1753 were slightly changed
- governor general anc council was authorized to make any rules or laws for governance
subjected to THREE restrictions (any law made by them should be published to the secretary in
england so they can challenge those laws. upto 2 years- privy council can declare the law unfair
or unreasonable(SIMILAR TO SC POWER OF SLPs))
- should not be repungnant to english law
- should be fair
 Rishabh Jain, 22011553, BBA-LLB(A)

- should be registered and published with the supreme court

- questioning the legality - judicial review (A13(2) in todays constitution)
Recorders court was established in Madaras, under george III in 1798
In bombay and madras the mayors court was replaced by the recorders court.

==CHARTER OF 1774==
- S13 of the Act, george III issued a charter in 1774
- First chief justice was Eilijah Impey (he also drafted the charter, which was revsied by the
attorney general, solicitor general etc.) (him and Hastings were close friends- hastings was not
happy as soon as the charter was passed because uptil then the tgovernor was the highest
position, now it has been substituted by anothjer person, hastings also wanted to reatin the indian
laws for the natives, but there was interference by the english law. )
- There were three puisne judges- Stephen Maistre, Robert Chambers, john Hyde
- court got all the juridictions- civil, criminal, ecclesiastical (courts will use the laws of the
churches to pronounce judgments) etc (it could also act as a court of equity- concept which grew
in England, chancery court in situations where the existing law did not give justice, they tried
substituting it with their definitions of justice, equiry and good consecience. it is important
because even back in england it was only after the Judicature Act of 1873 which united the
courts into one, that time this system in india was ahead of what the law was in england.) Privy
- it had the powers of a court of quity and those of a court of Admiralty
- was a court of record
- SC admitted attorneys and advocates
- had both original and appellate jurisdiction
- by exercising supervision through writ jurisdictions (writ of error existed during those days
along with erit of procedendo)
- jurisdiction
- any british subject or his majesty's subject residing within bengal, bihar and
orrisa
- any person employed by the EIC
- any inhabitant of bengal bihar or orrisa
- SC could also appoint advocates who had exclusive rights to plead in the courts
- Despite the act, the crown did not acquire the entire territory of bengal bihari orissa, it is still
with the mughal rulers, all that the EIC has are the diwani rights

KAMALUDDIN CASE 1775

- kamaluddin did not pay the revenues properly and he was arrested by the council, no bail was
granted
- he appealed to SC, and SC granted bail to him
- there was a question whether SC had jurisdiction and since it was an issue of the Xamindari
system will the SC be able to interfere
 Rishabh Jain, 22011553, BBA-LLB(A)

- votes were only there for POLICY decisions (where hastings was getting outvoted), this was
something which was to be decided unofficially

Achivements if the act:

- most defects of 1753 act were overcome by this act
- there were professional judges
- separation of pwoers btw judiciary and executive
- wider jurisdiction

Demerits of the Regulating Act 1773

- relationship between executive(Governor-General and Councilors) and judiciary(SC)- people
started fighting amongst themselves
- conflict between Governor-General and Councilors (within the executive)
- Undefined terms in the act (even judges were not sure as to who british subjects etc were)
- David Killican v. Juggernath Dutt (it was said that they are subject to the jurisdiction)
- Manickram Chattipadhya v. Meer Conjeer Ali Khan (plaintiff entered into a bond with
an inhabitant in calcutta, q was is he bound by the jurisdiction, they said no. contradiciting the
first one)
- Byjenauth Singh v. Charles Reed 9person born to a christian- who was a christian, he
was an illegitimate child, it was ruled that he was not a british subject)
- "Immninent necessity" undefined
- Changed pattern of power
- Two distinct and independent judicial system - expensive, indians did not like it as it was a
foreign system
- Difficulties of Indians
- Which law should be administered (can personal laws like hindu law or muslim law be used?
they did not even follow british law to the fullest, they used different law according to their own
convenience)
- Objective of the act - to reduce corruption through revenues and SC having no jurisdiction over
revenue makes no sense

==**Settlement Act, 1781** (in order to overcome the defects of the Regulating Act)==
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 5 - Judicial Reforms and Corruption in British India (Rajanandakumar - Topic 3

slide)

Important cases

- Trial of Rajanandakumar (1775)

- Facts
- Filed against Warren Hastings for corruption
- Francis- council members, they convened a meeting to discuss the charges
- it was proven that he did
- 1729 Act passed in England which made forgery a capital offence and
Rajanandakumar was charged under this act.
- SC's Justices of Peace found him guilty, members of the jury were mostly
English and 2 Eurasians, it was a unanimous guilty verdict even though he pleaded not guilty
- Judges did the examinations (does not happen today)
- Death Penalty for Rajanandakumar
- he tried appealing to the privy council but it was rejected by the SC (appeals
have to pass two places- SC and then the Privy Council.)
- Another person Radhachandran was found guilty in the same case but his death
sentence was repealed later, this was contradictory.
- impeachment proceedings of Hastings and Elijah Impey but were found NOT
GUILTY
- peculiar stuff:
- Impey is a close friend of Hastings
- Rajanandakumar made complaints against Hastings and the trial began
shortly after
- mercy petition rejected, the way in which Impey summed up all the facts
was not fair to Rajanandakumar.
- What people say:
- Impey was not alone, 12 other jury members thought they were guilty
- who filed the case? Mohan Prasad and not Warren Hastings
- Final thoughts: How politics affected the trial? Court did not have strict laws
back then as now there is (retrospective laws cannot hold people liable under A20)
- Issues:
- Whether the SC had jurisdiction?
- Since this crime was committed before the SC was established, so it
should have been the Faujdari adalat having the jurisdiction
- Rajanandakumar was not a resident of Calcutta
- Whether the 1729 English Act extended to India?
- 1726 charter introduced English law to India, 1753 charter was issued
rectifying issues in Mayor's court
 Rishabh Jain, 22011553, BBA-LLB(A)

- The crown has to expressly say that which act would or would not apply
to India and not every act can be assumed to be a part of Indian laws as well.
- Elijah: 1753 charter ensured and reintroduced that Indian law was
supposed to be applied again so it overcame 1726 charter. Whether a particular act suits the
territory of India- kind of commerce and trade that happened in India is similar to England.
therefore the act suited india (but the state of affairs in India was quite different)
- Kamaluddin (1775)
- Facts
- Kamaluddin was supposedly the owner of a salt farm on behalf of Kantu babu
- he was supposed to pay revenue and was in debt(arrear) as a farmer
- Revenue Council of Calcutta issued writ for his committal without bail
- Kamaluddin got writ of habeas corpus (to have the body) from SC and got bail
- SC ruled that the revenue council submitted defective returns
- too much power from the council denying bail
- president of revenue council agreed to the mistake as well
- The judges further stated that Kamaluddin should not be imprisoned again until
his under-renter (Kantu babu) had been called upon to pay the arrears and had proved to be
insolvent.
- Conflict
- governor and council said that it was a revenue case and the company had
diwani rights, so the revenue council has jurisdiction
- they then ordered for the imprisonment of kamaluddin
- hastings did not want that (but he lost majority)
- 1. council vs SC
- 2. governor general vs councilors
- Elijah Impey: SC did not exercise original jurisdiction they only intervened to
prevent misuse of power by company officers.
- The "Patna" case (1777-1779)
- Facts
- Shabaz Khan- part of the military settled in patna and had enormous wealth
- after his death, wife(nadira)and nephew claimed for property
- Discretion of provincial council- mohummadan law has to apply since its their
personal matter
- Qazis and Muftis had to go over the facts and give their report to the council.
- it was found out that it was forged
- was illtreated by Qazis and Muftis
- Darga- she went there and refused to come out.
- guards surrounded the darga and illegally imprisoned her
- appeal was pending with the sadar diwani adalat for a very long time
- governor general Warren Hastings managed the adalat but he had a lot on his
plate so he could not look over this case
 Rishabh Jain, 22011553, BBA-LLB(A)

- nadira begum filed the case in SC

- SC: looked into the facts and ordered for the arrest of the Qazis, Muftis and the
nephew of Khan.
- All arrested without bail except Qazi as he was old
- it was found out that there was no forgery and nadira begum deserved the
property.
- SC: a person who has delegated power cannot delegate it further, therefore the
provincial council cannot delegate it further to the Qazis and Muftis
- was it fair to hold the Qazis and Muftis liable when they were just acting in their
judicial capacity? when provincial council had to oversee the report , decision lied with them
- was the main reason for the Settlement Act 1981
- Issues
- the jurisdiction of the Supreme Court and the right of the Supreme Court to try
actions against the judicial officers of the Company for an act done in their official capacity; and
- whether the Provincial Diwani Adalats which consisted of the Members of the
Provincial Council were legally constituted courts of justice?
- whether a person can be held liable for a wrong decision when they were just
acting in their judicial capacity?
- Cossijurah Case
- Facts
- Raja Sundarayan was collecting
- he owed money to Qazinath
- zamindars were servants of the company
- Attorney general argued that they are not servants of the company unless
they give a written agreement for the same.
- this was a climax of the problems between the councils and SC
- army forces were sent from both forces
- company won
- the council did not want the status of the zamindars to be decided
- because if SC says they are members of company, SC will have control
over all zamindars and more say into the company's affairs especially revenue as they made most
money here
- if SC says that they are independent individuals then zamindars get more
sway over the company
- Issues
- whether the supreme court has jurisdiction of the zamindars?
- Rule
- Law of nations
- Saroop Chand Case
- Facts
- Saroop was the treasurer of revenues of the Dacca Provincial Council
 Rishabh Jain, 22011553, BBA-LLB(A)

- He had to pay revenues to 10K /-

- in his capacity as the treasurer of revenues it was found that he owed more than
66K
- Saroop claimed that he had already advanced 10K -/ to one members of the
council- John
- john agreed there were transactions but denied this particular transaction
- John himself looked over this case (going against the principle of natural justice
as he himself was involved)
- Provincial Council ruled that due to non payment of dues he must be imprisoned
WITHOUT bail
- Saroop filed a writ of habeas corpus in SC
- SC ruled abuse of power and said that proper civil proceedings must be done in
revenue matters.
- Gora Chand Dutt v. Hosea
- Facts

SETTLEMENT ACT
- purposes
- remove doubts and difficulties which were there in the 1773 regulating act, which led to
differences between the courts and the govt.
- supporting the lawful govt of bengal, bihar and orissa (revenue matters were completely
removed from the jurisdiction of the SC)
- maintaining and protecting inhabitants
- purpose of regulating act 1773.

the act- provisions

- revenue matters were completely removed from the jurisdiction of the SC
- different religion- hindu filing case against muslim, then the law of the defendant would prevail
- any judicial officer of the company's court will not be under the jurisdiction of the SC
- release and indemnity of the Qazis and Muftis
- expressly recognized the company courts which was not mentioned in the 1773 act, as the SC
were exercising "enormous" powers and were considered to be a superior court
- company courts thus got similar powers to the SC

Defects
- definition of british subjects were still unclear
 Rishabh Jain, 22011553, BBA-LLB(A)

- uncertainty to whether native indians who are a part of the british settlements were a british
subject or not
- break to "rule of law" by favoring the executive
- jurisdiction of dual courts uncertain
- undefined relationship between the indian territories and the british crown

==TRIAL OF RAJANANDAKUMAR==
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 6 - Topics 5 (Settlement) and 3 (Trial of Warren Hastings) from slide continuation
**Act of Settlement, 1781**

The Supreme Court was disliked by everybody

**1777-** Directors represented their grievances to the British Government

**1780**- House of Commons appointed a Select Committee called Touchet Committee

**1781**- Act of Settlement

**Provisions of the Act of Settlement**

Preamble,

1. To remove doubts and difficulties which had arisen regarding the true intent and meaning of
certain clauses in the Regulating Act and the Charter of 1774 which created dissensions between
the Court and the Government
2. To support the lawful Government of Bengal, Bihar and Orissa so that revenue is collected
with certainty
3. To maintain and protect the inhabitants in the enjoyment of all their ancient laws, usages,
rights and privileges

Provisions

1. Governor-General and Council are immune from Court jurisdiction in official capacity-
defeated the purpose of the Regulating Act, 1773
2. Revenue matters were removed from the jurisdiction of the Supreme Court- as ‘Court was
interfering needlessly in revenue matters’
3. Any person acting as a character of a revenue officer will not be within the jurisdiction of the
Supreme Court
4. Personal laws applied to native Hindus and Muslims
5. Cases between different religions- law of the defendant would prevail
6. Patna Case Provisions

· Any judicial officer of the Company’s Court like Qazi and Mufti is not within the
jurisdiction of the Supreme Court in their official capacity

· Release of Qazis and Mufti and indemnity therein

7. Cossijurah Case
 Rishabh Jain, 22011553, BBA-LLB(A)

· Revenue officers - not in jurisdiction

· Only consenting natives in written will fall under their jurisdiction

8. The Act expressly recognised the Company Courts- SC had power as they were
established by Parliament but Company Courts were not so SC was considered superior- this was
remedied by this Act- they now get similar powers as they have been recognised by the British
Parliament

9. Calcutta- SC

Mofussil Areas- Company Courts

10. Changes made to Sadr Diwani Adalat- its existence was expressly acknowledged

**Defects**

1. **‘British subjects’** undefined as well as Her Majesty’s subjects

2. Relationship between Indian territories and British Crown undefined- Company exercised
power only through diwani rights- India not declared a colony yet
3. Break to ‘rule of law’ by favouring executive- Governor General and Council was made
immune
4. Jurisdiction of dual courts was still uncertain- concurrent jurisdiction of Company Courts and
Supreme Court existed- no express division of jurisdiction

**1858 – GOVERNMENT OF INDIA ACT**

Under this, the powers of the East India Company were transferred to the crown

**1861 – HIGH COURTS ACT**

Abolished the Supreme Court and High Courts were established

Last Court in Madras and Bombay - Recorder’s Court

Thomas Strange- Madras recorder

 Rishabh Jain, 22011553, BBA-LLB(A)

West- Bombay recorder

**Difference between Mayor’s Court and Recorder’s Court**

1. Jurisdiction

Civil v/s civil, criminal and testamentary

2. Involvement of Indians

Excluded in Mayor’s, included in Recorder’s

3. Usage of law

English law v/s English as well as Hindu and Muslim personal law

4. Appeal

To Governor-in-General v/s directly to Privy Council (in cases above Rs. 1,000; cases below this
would have finality in Recorder’s Court)

**Madras**

**1800**

1. King allowed British Parliament to establish SC in Madras

2. 26/12/1800 - this Act replaced Recorder’s Court with SC
3. Similar in power to Calcutta SC
 Rishabh Jain, 22011553, BBA-LLB(A)

**Bombay**

**1823**

1. 08/12/1823 - Charter passed

2. 08/05/1824- SC inaugurated
3. Similar in power to Calcutta SC

**Issues between SC and Chief Justice**

Any Act needed approval by the CJ and the SC

Any newspaper needs to be registered before circulation- Act passed by Governor in Calcutta

Sent for power to Chief Justice (Thomas Strange)

CJ found it arbitrary and did not allow

Government tried imposing regulations on the free press

SCs at Calcutta, Madras and Bombay

Bombay- 1824

cases- jurisdiction of the SC

Moro Ragunath case

- 14 yr old boy was illegally kept by his grandfather
- relatives filed a writ of habeas corpus
- problem: boy and the grandfather was in pune, bombay SC had jurisdiction only for islands of
Bombay
- despite this, the court heard the matter
- grandfather did not do that as he was not in the territorial power of SC

Bappoo Guneess
- courts had arrested him and kept him in custody
- writ of habeas corpus asking for release
- issue of jurisdiction: company court ordered for arrest so SC did not have jurisdiction, so the
person was not released
- CJ was annoyed and he wrote that the parliament has to interfere
- advisory jurisdiction for the Privy Council(INRE cases even today)
- Privy Council ruled that the SC was abusing its power
 Rishabh Jain, 22011553, BBA-LLB(A)

- writs can only be issued by people who are subjected to the jurisdiction of the SC

Reorganization of the Adalat system

- Judicial Plan of 1780
- Warren Hastings gave it
- separation of revenue from judiciary: so he established provincial diwani adalats which
would deal with civil cases
- jurisdiction of provincial diwani adalats extended: all cases of property and cases
against zamindars can be filed in this adalat
- appeal: from provincial council to sadar diwani adalats
- Reforms of 1781- they felt that the provincial diwani adalats were less
- Given by Impey and Hastings
- Recall of Impey and civil justice
1. Qazis and Mufti had too much power
· Express provision that judicial functions cannot be delegated to them
· They can only apply law to facts
2. Created the first civil code
· Processes of courts
· Processes of native law officers
3. Number of Courts was very less
· Number of mofussil diwani adalat increased from 6 to 18
· Retained the concept of separation of revenue from judiciary

Impey was recalled by England and governor and general took over
Nawabs court took care of criminal cases (and Hastings did not want to interfere with them)
he appointed mohd reza khan who increased faujdari courts, gave salary to judicial officers, etc.
BUT problems still existed

Demerits:
- Law officers Qazis and Muftis had excessive power and that judicial functions cannot be given
to them
- Impey passed the first civil code in India which had several provisions with respect to the
process and how the court has to function.
- Number of courts were very less after 1780 so the number of no. of mofussil diwani adalats
were increased from 6 to 18. he was also for separation of powers

==WARREN HASTINGS IMPEACHMENT TRIAL- READING

"Justice, War, and the Imperium: India and Britain in Edmund Burke’s Prosecutorial
Speeches in the
Impeachment Trial of Warren Hastings"- MITHI MUKHERJEE==
 Rishabh Jain, 22011553, BBA-LLB(A)

how natural law was adopted in hastings' trial

common law is too specific as it is suited to only british interests and his actions were done in
India

Globalization as a continuation of imperialism

-
vs

globalization as a supranational and decentralized sovereign

- ensures no abuse of power
- more centralized approach earlier
- shift in global relations of power
- past imperialism was merely an extension of european powers into new territories
- existence of UN as a global juridical institution- legitimization and recognition of states as
sovereign, grounded on the the principles of universal justice

critical questions in late eighteenth century-

- whether or not conquest based on national conquests was a legitimate foundation of the
sovereignty of an empire, which was just an extension of national sovereignty?
- whether national sovereignty was different from the empire?
- whether the empire could be based on existing national institutions or did they have to be
reconstituted?

Metropole- State exercising power over a colony

Juridical- relating to the judicial processes and administration of the law
Juridical Sovereignty- highest power over a state
Imperial Sovereignty- practicing supreme authority over a foreign territory
Juridical Imperial Sovereignty- exercising highest power over a foreign state through judicial
processes and setting up administration of justice. They control without any interference.
Colonial sovereignty is what happens due to national interests.
Imperial sovereignty is a mere extension over your territories.
One of the main points of clash in the trial was colonial vs imperial sovereignty.

Arguments by Mithi
- british empire often conflicted in their agendas to rule
- Colonial: dominance over the colonized in the name of national interests. was grounded
in governor-general 's council. police army and bureaucracy most imp instruments
- Imperial: Supranational juridical terms of justice, equity and impartiality. Parliament,
SC and House of lords provided institutional agency.
- British and "un-british":un-british and unjust the same?
 Rishabh Jain, 22011553, BBA-LLB(A)

==Warren Hastings impeachment==- important case because first trial where the ideology of
colonization itself was questioned.
- The trial openly showcased the ambitions of the Europeans. It also made sure that the legal and
moral legitimacy of colonialism was questioned to the highest judicial body in britian.
- was impeached as the governor-general (1772-1785) for misdemeanour and hard crimes
- impeachment took place in the british house of commons (Burke was the statesmen
representing house of commons)
- proceedings began in the British House of Lords, acting as judge and were impartial (2009-
judicial functions removed from them)
- charges of corruption, use of political power for extorting bribes from native rulers of India,
abuse of judicial authority, despotism, and arbitrary rule, Hastings was being tried specifically
for illegally occupying territory in India by launching aggressive offensive and criminal wars
against native rulers, treaty violations, and for open violence against native rulers and the people
of India
- the two agendas clashed in this trial (colonial and imperial)
- 1756-1783: imperial instability as they were reworking the ideas of empire etc
- crucial factor in british imperial identity was ==liberty==
- relation between empire and liberty:
- question emerged that should the colonies be reduced to perpetual dependencies of Britain or
whether the relationship between metropole and colonies should be more balanced
- arguments for: (hastings' justifications)
- necessary to go to war
- corruption: colonist would not obey rules with respect to repayment, so they needed to
find a way to get the money
- sovereignty they had was legitimate because they got it from diwan
- denied arbitrariness as they got it from the mughal rule which was necessary even then
- population of india required that
- sovereignty argument using Hobbes
- he said that he should be governed by mughal law and the charters and not by the
parliament's interference
- Arguments against:
- EIC is not merely a chartered company but it is now a political power
- there was no evidence to show that the population was rebellious
- natural, common. how natural law was adopted in hastings' trial. common law is too
specific as it is suited to only british interests and his actions were done in India
- house of lords should act as a judge in future cases as they are neutral because house of
commons is the accuser.

**Trial of Warren Hastings**

 Rishabh Jain, 22011553, BBA-LLB(A)

Early life

1. Born in 1732
2. Mother RIP, dad abandoned
3. Westminster school - Impey besties
4. Couldn't continue education for long as he was sent to India at 16-17 as a clerk
5. Rose up in Company rankings and he found himself as a representative of the Company in the
Nawab’s Court
6. Was a servant of the Governor and Council
7. Came back to England; when he came back to India he was made governor of Madras
8. After Bengal famine he was called to Bengal and made reforms
9. Waged wars against native Indians- Anglo Maratha, Anglo Mysore, Rohilla wars, etc.
10. Also charges of corruption existed against him
11. He went back to England and impeachment proceedings were initiated against him

Impeachment

1. In cases of impeachment, House of Commons (lower) acts as prosecution and pleader while
House of Lords (upper) acts as impartial judge
2. Edmund Burke represented the HOC against Hastings

Mithi Mukherjee’s approach is unique - doesnt focus only on the facts of the trial but also the
ideologies and arguments of the parties

Imperial sovereignty vs colonial sovereignty - two theories

1. Ideologies behind the reason of colonisation

2. They are done in national interest so they wage wars and cause destruction - colonial
sovereignty
3. They are supranational; colonised is an extension of the coloniser and the people of the
colonised are given an equal status to the people of the coloniser

Negri and Hardt - initial colonisation of Europeans is different from that in the globalised world

Now, supranational decentralised power

Mithi says it not then vs now but it has to do with the ideologies prevalent

Even previously there were two different ideologies as there are now
 Rishabh Jain, 22011553, BBA-LLB(A)

Common law- exclusive to the people in Britain, so if common law is applied the British will get
rights while Indians will not get anything

Natural law is neutral and gives rights to everybody

**Result**

Hastings acquitted

But significance- first time a person of colonial significance was questioned

The ideology behind colonisation was questioned

**Triadic discourse**

3 parties to a dispute

Accuser, accused and neutral third party

Neutral third party- House of Lords

**ROLE OF CORNWALLIS IN JUDICIAL REFORMS**

After Warren Hastings’ impeachment, Robert Chambers became the Chief Justice

1. William Pitt the younger, Prime Minister of England – Pitt’s India Act, 1784

**Pitt’s India Act**

For the first time British government acknowledges that Indian territories are under them

**_Provisions_**
 Rishabh Jain, 22011553, BBA-LLB(A)

1. Board of Control

· 6 commissioners- Secretary of State, Chancellor of the exchequer and four members of the
Privy Council

· Took over all civil and military affairs while the administrative and commercial functions
lay with the Board of Director

· Thus the Governor-General was under the Board of Control and the Board of Directors
both

2. Authority of the Board

· Directors of the Company reported to the Board with respect to civil and military affairs

3. Court of Proprietors

· Power to counter orders and resolutions of the Directors was deprived

· They could appoint Directors as well

· Now they were just mere shareholders of the Company

4. Court of Directors

5. Company’s central government

· Governor-General in Bengal was the central government

 Rishabh Jain, 22011553, BBA-LLB(A)

· One of the 3 Councillors was to be the Commander-in-Chief of the armed forces

· Directors required Crown’s approval before appointing the Governor-General

6. British possessions

· All Company settlements were called as British possessions

7. Government of Presidencies

· Governor + 3 Councillors

· One Councillor was to be the Commander-in-Chief of armed forces

· Subordinate to the central government of the Company

8. Corruption management

· If a Company servant is retiring he must declare all his fortunes through an oath

· Receiving presents would be considered to be extortion

· Special court to deal with corruption was established

· Natives could also file complaints before this special court

9. Dual Government
 Rishabh Jain, 22011553, BBA-LLB(A)

· Commercial functions were in the hands of the Company while political functions were in
the hands of the Board of Control
**This was the condition pre-Cornwallis; he had to report to Board of Control and Board of
Directors**
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 7 - Establishment of Legislature in India under the Crown, Charter Act of 1833 and
its Codification (Topic 6 from slide) - scroll down to buildup

**Role of Cornwallis in Judicial Reforms**

**Cornwallis**

**_Aims_**

1. Economy

· To increase the wealth of the Company and the Crown

· His measures shall be cheap

2. Modification

· Modification of the administration

3. Purification

· Curb corrutpion and remove other demerits

**_Conditions_**

1. He wanted to act independently of his Council members; he wanted the power to override the
say of the Council
2. He wanted to be the Commander-in-Chief of armed forces along with being Governor-
General

**_Important advisors_**

1. Sir William Jones

2. Sir John Shore

_William Jones_

1. Eminent oriental scholar

2. Helped Cornwallis with the enactment of his code

_John Shore_
 Rishabh Jain, 22011553, BBA-LLB(A)

1. After Cornwallis resigned, Shore took over as Governor-General

2. He was with Cornwallis throughout his tenure and influenced Cornwallis’ reforms

**Judicial Reforms**

**1786 –** Cornwallis took over

1. Judicial System of 1787

2. Scheme of Criminal Judicature of 1790
3. Cornwallis Code of 1793 - set of regulations influencing every aspect including creation of
law, judicature, etc.

**_Plan of 1787_**

Revenue-judicature separation was disliked by John Shore as,

1. It is difficult to determine whether a case is a revenue one or a civil one (subject matter of
dispute)
2. When collectors want to collect revenue and the individual goes to Court against collector,
Courts would grant an interim stay to the process of revenue collection

This was supported by the Company’s Court of Directors

Thus this Plan united revenue and judicature under one person – the Collector

To decide **revenue** cases a separate Court established – Mal Adalat

Head of the **civil** Mofussil Diwani Adalat – Collector

In **criminal** cases, a Magistrate Court would decide petty cases of imprisonment under 15
days

In more serious cases, Magistrate only decides if there is a prima facie case and if there it, he
commits the accused to the Mofussil Nizamat Adalat

Head of the Magistrate Court was also the Collector

Higher Court was in Murshidabad, far away, so supervision was difficult

**_M.P. Jain felt this was a swing in the opposite direction_**

 Rishabh Jain, 22011553, BBA-LLB(A)

- **_Too much power in the Collector; chances of misuse_**

- **_Courts were established in different places so supervision was minimal_**

**_Plan of 1790_**

Three limbed criminal system

1. Court of the District Magistrate - petty cases under 15 days; committal in the other cases
2. Court of Circuit

· Replaced Mofussil Faujdari Adalat

· Not a stationary Court, it was a moving Court; went from district to district deciding
serious offences

· Bengal, Bihar and Orissa divided into four; each division had a Court of Circuit

· The Court visited each district twice a year

· Appeals went to the Sadr Faujdari Adalat

· Governor-General and Council headed Sadr Faujdari Adalat with Qazis and Muftis to
assist

· **Demerit**

This was supposed to curb overcrowding

But the lower Court only tried petty cases

Higher cases went to Circuit Courts who met merely twice a year - slow administration of justice

**_Shortly after the 1790 Plan_**

· Witnesses and prosecutors had to visit Court multiple times which was a problem; **to
remedy this daily allowances were given to try cases**

· Small allowances to prisoners shortly after they left jail for a month; in order to help
integration into society and prevent further crimes
 Rishabh Jain, 22011553, BBA-LLB(A)

· There was a need to increase the Magistrate’s power to prevent overcrowing of cases in the
Circuit Courts; 15 days increased to 30 days

**Cornwallis Code, 1793**

Dealt with commercial, civil, criminal, revenue, etc.

This Code was a compilation of several regulations

He thought it would help remedy the chaos that was prevalent

1. Seperation of revenue from judiciary

· Collector exclusively in charge of revenue collection only

· Judicial functions distributed across Courts

· Collector is only an administrative officer without judicial functions

· Replacement of Mal Adalat by Mofussil Diwani Adalat; it got judicial powers while
revenue powers lay with the Collector (earlier Mal had separate power to try revenue cases, now
they do not)

· **Revenue hierarchy –** Mofus

2. Circuit Court become the Provincial Court of Appeal

· It got civil as well as criminal jurisdiction

· First appeal from Mofussil to this Court

· Second appeal to the Sadr Diwani Adalat

3. Additional civil courts

· Munsif’s Courts - lowest Court; petty cases upto Rs. 50

· Registrar Courts - suits upto Rs. 200

 Rishabh Jain, 22011553, BBA-LLB(A)

4. Family Law cases - S.12

· Personal laws of Hindus and Muslims to prevail

· Native law officers would deal with these cases; appointed by the Governor-Generail-in-
Council

5. Executive machinery

· Right from Governor-General to every servant; the executive would be liable to the Courts
for any acts even in their official capacities

6. Accessibility to Courts

· Abolishment of court fees

· Only summons cost and pleader’s fees were charged

· No other fees were charged from the litigants

7. Criminal jurisdiction – Regulation 9

· Abolishment of Magistrate Court as it was headed by the Collector

· The Magisterial powers of the Collector were given to the Mofussil Diwani Adalat

· Appeals from Diwani Adalat to Provincial Court of Appeal; it also had original jurisdiction
over serious cases committed to it

· Sadr Faujdari Adalat was the supreme authority; judged by the Governor-General

8. Legal profession

· The party or his agent himself appears in the Court to fight the cases

· Therefore Cornwallis felt the need of a professional legal system to assist litigants as well
as judges
 Rishabh Jain, 22011553, BBA-LLB(A)

· Enlisted qualifications and competencies for judges along side giving them code of conduct

· Each lawyer required a certificate to perform his functions

· Lawyers prohibited from charging exorbitant fees

9. Uniform pattern of regulation

· Cornwallis gave a structure

· Made yearly documentation of regulations compulsory for easy reference

· These regulations had to follow a particular structure - with a heading, preamble, sections,
subsections, clauses and subclauses

10. Permanent settlement of land revenue

· Zamindars were landowners

· They had to pay 9/10th of the fees and retained 1/10th

**_This scheme was largely progressive_**

Interesting aspects

1. Institution of lawyers was created

· Legal profession was recognised

· Qualification, code of conduct, etc. was clearly stated

2. Uniform pattern of regulations

· Gave a structure to formation of laws

 Rishabh Jain, 22011553, BBA-LLB(A)

**Estimation of the Scheme**

1. Helpful; parallels to Hastings’ plan

2. He built upon the foundations laid down by Hastings
3. His reforms achieved the three fold aim of economy, modification and purification
next governor-general of Bengal: Cornwallis

Permanent Settlement act

Company's govt before Cornwallis

- Pitt's India Act, 1784
- Board of control: 4 members of the privy council (unfinished), took over all civil and
military affairs within territory of India. secretary of state will be the chairman
- Authority of the board: civil, revenue and military affairs
- Court of proprietors sacked of its power: all people who had shares within the EIC, they
had powers from appointment of directors to influencing governor-general's decisions. this was
sacked and the power was given to the court of directors. court of directors had power to appoint
and remove servants of the company, (unfinished)
- Power and privileges of the Board of Directors
- Company's central government: governor-general of bengal
- British Possessions:
- Government of presidencies:
- Measure for checking corruption: tries to curb corruption through naming taking bribery
as extortion. any person has to mention under oath (unfinished). special court established to deal
with corruption
- Dual government:

1790
- Criminal
3 limbs
Lowest: Court of District Magistrate (deals with petty cases and reserves serious offences
for court of circuit)
then Court of Circuit (goes from one district to another deciding serious offences, done
twice a year)
Highest: Sadar Fauzdari Adalat (appeals were heard here) (governor general and council
looked over this court)
Territory was divided into 4

demerits:
 Rishabh Jain, 22011553, BBA-LLB(A)

- circuit court only goes twice a year so the individual would be in prison for majority of the year
leading to an overcrowding of prisons
- reforms to overcome this: daily allowance to prosecution and witnesses to proceed with
the trial
- property of accused as attachment as removed
- allowance of 5 rupees per day for a month to people who have just been freed so they
do not resort into going back to crimes (only for individuals who have been imprisoned for over
6 months)

1793
- Cornwallis code
- disciplining administration
- compiled several regulations
- all functions (revenue and other) were combined into one person called the
collector, cornwallis realized this wont work so he separated the revenue from the judiciary
- circuit court renamed to provincial court of appeal (any case less than 1000
rupees would mean that their decision is final )
- indians could only act as judges in munsifs court which was the lowest court of
civil cases (DEMERIT)
- personal laws of hindus and muslims and native law officers will oversee these,
NLOs will be appointed by governor and council (regulation 12)
- how the executive was liable to the court's jurisdiction even when they are
performing in their official roles as cornwallis believed in accountability and rule of law
- opened the court to litigants and wanted increased accessibility so removed court
fees (excluding summon fees)
- created an institution of lawyers
- uniform pattern of regulations by providing a structure as to how regulations are
to be formed- yearly documentation of cases and they should follow a structure and preamble (to
know intentions of the legislature)
- regulation 7 prescribed a code of conduct
- permanent settlement: zamindars were made the owners of lands and particular
fixed revenue to be collected by zamindars, 9/10ths to the EIC while rest is retained by them

most reforms of hastings and cornwallis were parallel and cornwallis actually built on what
hastings laid out

seven other governor-generals after cornwallis but all made minor changes, none were like
hastings and cornwallis

1. John Shore (1793)

 Rishabh Jain, 22011553, BBA-LLB(A)

- was a supporter for the 1793 system despite it having demerits

- one of the biggest defects was that it caused major backlog of cases
- 1794: appeal provisions, more powers to collectors, munsifs did not require
countersigns of the mofussil diwani adalats, they could take cases as they wanted. collector was
allowed to look into the report, which were only advisory and not a judicial function and only
assisted the diwani adalats
- demerit: since appeals could go directly to the provincial court of appeals
without going through the mofussil diwani adalats, it led to an increased burden on the former.
- 1795:
- nearly 30,000 cases pending before diwani adalat(only 26 of them) but could
only dispose 10 per day. backlog led to problem with zamindars- zamindars were not able to
collect revenue as the diwani adalat had so many pending cases, and since the zamindars had
gotten into and agreement with the government to pay back the govt some amount of revenue,
they were not able to due to them not getting revenues in the first place. imposition of court fee
to reduce the amount of cases. he did not want to expand the number of courts as it would be
expensive. this court fees were charged even for pending court cases through a deadline if they
did not pay then the case would be dismissed. fees was also charged for summoning etc.
- Procedural reforms: sadar diwani adalat had supervisory function over the lower
courts, the lower courts had to file periodic reports with respect to their cases. these reforms were
only on a trial and error basis.
- changed the demerit of 1794 and said that whatever the mofussil diwani adalat
says is final and could go no further. unless of course, the case was filed in the provincial court
of appeal's original jurisdiction (200 rs and more)
- 1797:
- increased the court fees even further as the number of litigations did not reduce
earlier. criticized because it isnt accessible to many genuine claims and people who may not have
the funds.
- reduced the number of judges in the SC to 3: to cut costs
- separate code was established
- restricted the appeals to the sadar diwani adalats even further than what he did in
1795 to again reduce the number of cases pending: did not want to burden the governor-general
and council with so many appeals. increased the limit from 1000 to 5000 rs. for a case to go from
the provincial case of appeals to the sadar diwani adalat.
2. Lord Wellesley (1798)
- restriction on appeal: munsifs (50)-> ameens (100)-> registrar (500) -> mofussil diwani
adalats (above 500-original )-> provincial court of appeals (1000-5000 will be its final judgment,
over 5000 means sadar diwani) -> sadar diwani adalats (over 5000). whatever the mofussil
diwani adalat is final for cases below 500.
- separation of judicial function from executive: removed the governor-general as judge
from sadar diwani and nizamat adalat and appointed another person, who will be appointed by
Frthe governor-general and council
 Rishabh Jain, 22011553, BBA-LLB(A)

- however, since the member (chief justice) was from the council, there is
again an intersection between judiciary and executive.
- appointment of sadar ameens: they were courts for native indians which tried cases
upto100 rs. second attempt to get indians into the judiciary after munsifs (50 rs) nominated by
the diwani adalats and approved for appointment by the sadar diwani adalats.
- Adalat system extended: new territories were annexed and extended to those territories
3. Lord Cornwallis (again) (1805)
- rectified the separation of power flaw in Wellesley's reforms (his only reform)
4. Lord Minto (1807)
- Number of judges increased: to attend to more cases -> 3 to 4 judges
- Judicial function mixed with executive: (due to the last reason?)
- Magistrate's power increased: magistrate's were only allowed a preliminary enquiry, but
they are now allowed to impose punishments and fines.
- Jurisdiction of courts: provincial court of appeal are now given original jurisdiction
(upto 5000)
- Governor-General to appoint Chief Judge: cornwallis' reform removed, to improve the
friction between governor-general and council and judiciary. reason given: more economical.
5. Lord Hastings
- Charter Act, 1813: crown has sovereignty over the territory and EIC can hold
possession for 20 years. can retain its monopoly with respect to tea trade, trade with china etc.
- Reforms in Civil Courts: increase in power of indian judges- more economical.
Munsifs could deal with cases upto rs.64 now and sadar ameens- 150 rs. appeals from the munsif
and the ameens in certain cases went to the registrar.
- Reforms in Criminal Courts:
6. Lord Amherst
- Status of Sadar Ameens raised:
- Powers of magistrates and court of circuit expanded:
- Judicial Powers to Collectors: all the judicial power of collectors were previously
removed in shores reforms, but now they got the power to deal with rental disputes
7. Lord Bentinck (1828)
- Practice of sati was declared an offence: said it was tantamount to homicide
- Select committee: looked into EIC affairs, gave 3 reccs
- status of indian judges should be increased- reducing backlog + economical
- regulations need to be simplified and codified- judges can pass it more
effectively and efficiently
- establishment of sadar nizamat adalat and sadar diwani adalat at allahbad:
- 2 courts were abolished- provincial court of appeal and circuit court was abolished
- not only number of indian judges, but power of indian judges also increased. 64->300,
150-> 1000
- CHARTER OF 1833
 Rishabh Jain, 22011553, BBA-LLB(A)

==Buildup to charter of 1833==

1600 charter- good governance for the company and advancement of trade

1726- first time crown gave power to the subordinate legislature to pass laws

1757- diwani was granted

1773- regulating act - governor became governor-general + SC. S36 and S37 of the act allowed
the governor general and council to issue rules etc provided they were reasonable and not
violative of the laws in england + registered with the SC

1781- settlement act (divide between presidency towns and the mofussil area as the SC had veto
power only with respect to the presidency towns). Privy Council had the power to hear cases for
2 years to declare them invalid.

Cornwallis code 1793 (up)

bengal Statute of 1797- gave approval to cornwallis' code

1802- his reforms were applied to bombay and madras, the other presidency towns

1807- british parliament ruled that governors of madras and bombay can pass rules to and those
rules will be applicable to their respective presidencies

charter of 1813 (up)- any person who is an inhabitant would have to strictly obey the regulations
passed

1813 onwards- interference of the british parliament when it came to the governance of the EIC
INCREASED. they had power to veto provisions etc. in order to increase efficiency of
regulation. main reason: to slowly increase their control in the affairs of the company.

Defects behind the system and reason for the 1833 charter
- faulty drafting- sir henry cunningham (lawyer, who later became attorney general of madras)
criticized the drafting and said it was tough for even lawyers to keep up etc
- lack of uniformity- inexperienced individuals who did not know law passed regulations,
different from mofussil areas and presidency towns
- parallel legislation: bombay, madras, calcutta have 3 diff-> all 3 not accountable to one another
- uncertainty: britishers dealing with situations focused on establishment of courts rather than the
law itself, native indians governed by personal laws, 3 laws for presidencies + mofussil areas
 Rishabh Jain, 22011553, BBA-LLB(A)

- other vices: Sir Charles Grant- politician who introduced 1833 charter in parliament-> nature of
the law and regulation itself was problematic + authority also problematic + enforcement also
problematic. need for centralized legislature etc

Factors leadiing to reforms of 1833

- SC's power and jurisdiction: (Musla v Musla) it was more about where you filed the case than
the facts of the case itself. there were cases where the SC extended its jurisdiction to the mofussil
areas. therefore, it was essential for the 1833 charter to fix this. SC used the doctrine of jusitce,
equity and good conscience and started to use their own wisdom to deal with the case
(PROBLEMATIC). 3 SCs + Sadar Diwani Adalats , all using this doctrine over the law /
precedence itself meaning that there is no consistency in verdicts. which judgment to apply as
precedent then???
- Economic conditions- centralized system, not just for legislation but also for administration.
amount of expenses applied to legislations were reduced. shift from a conservative party to a
liberal ruling party-> ideologies such as free trade and market etc -> wanted to make india a free
market, monopoly of the company reduced in 1830 to tea and china, now it will be even lower.
- Public opinion: proper legislature needs to be set up
- Favor to christianity- apart from free trade etc, many individuals wanted to educate indians
about christianity
- Travails through which it passed- Jeremy Bentham was the first person who coined the word
codification itself -> knowing with certainty what laws are applicable to you. wrote an essay and
said that codification will help india as well. he died in 1832 but his concept did not die as he had
many supporters.

Macaulay- drafted IPC, was the first law member of the first law commission

==Charter of 1833==
- Provisions
- Monopoly of trade
- monopoly of trade is completely removed as they are run by liberals and want
free trade. (before this was only tea and china)
- EIC can have the possession for 20 years in the name of her majesty. EIC was
only the trustee.
- Control of company:
- EIC had two functions prior to this: commercial(court of directors)and political
(board of control). Commercial was entirely removed. very surprising because, the very reason to
establish the EIC was trading and now is only a political organization which will control India.
- Governor of bengal is renamed as the governor-general of India and will have
control over other presidencies- bombay and madras. the three members after pitts india act were
 Rishabh Jain, 22011553, BBA-LLB(A)

retained + a law member was introduced(imp)- who gave expertise only while making laws and
also had a right to vote(this is a legislative function.) the law member will not have any role in
administrative or executive functions
- qualifications of law member: independent member who is not a servant
of the EIC. no express provision which said that this member was a lawyer
- Bentick actually wanted a member from the SC as a law member, BUT
his suggestion was not accepted.
- First law member- Macaulay (he was a barrister, he did not have much
litigation experience. he was also a part of the board of control for quite some time). he was also
one of the few members who argued for the codification of this charter
- Central Legislature:
- since there was uncertainty in the system, whatever the governor-general of
India makes will be called as "acts"(as opposed to regulations previously) and these would be
binding in the other presidencies too.
- All India Legislature: could amend, repeal any law which is already prevalent in
India. + whatever act they are making now, will be binding on all persons- british, natives and
foreigners AND all courts.
- however, they could not amend the charter of 1833 itself along with the
mutiny act. + they cannot transgress into the parliament of england itself + constitution of
england cannot be amended either.
- principles of regulation: any act before being passed must be deliberated upon
by the council.
- Law Commission:
- Section 53 of the charter of 1833
- main goal: they wanted all the people within the territory of india to be governed
by the same law to bring in uniformity and a proper system
- Empowered the governor-general in council to appoint a law commission and
the law commission will work under them.
- this law commission will submit reports after going through the codified law
- 5 members -> deliberating on the issue which is referred to by the governor-
general
- these reports will be used to pass laws
- functions
- law commission will enact laws that will be applicable to all persons in
british india. they will have due consideration to the rights, feelings, usages and customs to all
people in the territory. they will consider all of this
- they will also help in the consolidation of law and giving a systematic
code for each branch of law
- enquire into the jurisdiction and powers of various courts and police
enactments
- provision
 Rishabh Jain, 22011553, BBA-LLB(A)

- maximum members: 5- 1 chairman + 4 other members (membership of

these members has to be approved by the court of directors)
- they could even ask for the expert opinion from SC judges + public
opinion (even now we get public consultation from the law commission.)
- reports are public documents which are placed before the parliament in
england and are open to scrutiny.
- Few other provisions (not relevant to us)
- the act tried to remove discrimination when it came to civil services. they
attempted to introduced an all india exam where indians could also be part of civil services.
Liberals abolished slavery in England at this time, so they wanted to improve the situation of
slavery in India
- provisions to estbalish christian missionaries within India

LAW COMMISSIONS AFTER THE 1833 CHARTER

- First Law Commission (MOST IMP):
- established in 1834
- Macaulay as its head
- additional member: CH Cameron - a barrister and Benthamite. after Macaulay left (in
1838), Cameron became the law member.
- each of the other three members looked over the three presidency towns
- Significant achievements:
- Drafted Penal Code (mainly Macaulay)- he gave this code in 1837 itself. it dealt
with certain aspects which exclusively suited the conditions of India- such as "Taghi"- means
robber. BUT, people felt that the Penal Code was too rigorous a system to be introduced right
away and needed revision. Lord Oakland recommended that he reformed the other aspects of
criminal and civil law.
- Lex Loci Report: Lex Loci means law of the land. Hindus and Muslims were
governed by their respective laws. What about others? like parsis, armenians etc. Court of
Directors forwarded a letter to the law commission regarding this and they came up with a report
in 1840: for non-hindus and non-muslims, english law should be applied
- reason they gave: sicne english law was anyway prevailing AND apart
from english law, personal laws such as hindus and muslims had religious aspects to it, even
before the english came, there was no lex-loci. they occupied a territory which had no lex loci
and applied english law
- Criticism: it was only the 1726 charter which introduced the english
laws.
- in the mofussil areas there were a lot of Indian judges, who could not use
english laws.
 Rishabh Jain, 22011553, BBA-LLB(A)

- essentially it created a lot of confusion and Lord Oakland halted the

enforcement of this report. this lex loci report was a huge criticism of the law commission. (was
considered a failure due to this)
- Suggested various reforms in CPC. also drafted law of limitations, which was
eventually passed in 1859. they also helped in drafting of the Indian Stamp Act
- Eamos succeeded Macaulay, then he also left in 1843 and by this time the first law
commission also ended
- Cameron succeeded Eamos.
- Evaluating this law commission: after macaulay itself, the activities of the law
commission started becoming slower + many suggestions they gave were failures. BUT, a lot of
people also say that IPC is one of the most significant contributions of this law commission.
- reasons for failure: repetitive and frequent changing of governor-general AND chairman
of the law commission. lex loci report was considered too impractical
- Second Law Commission:
- one unique feature: established in England for a period of 3 years
- during this period, they gave 4 reports most of which were respect to judiciaries,
the parliament wanted them to enquire into the recommendations of the first law commission
- Third Law Commission:
- set up in 1861- "golden age for codification"
- chairman- Lord Romilly
- 7 reports given- all of them on important laws right now (eg: contracts bill, evidence bill
etc etc)
- executive council was working on the other side- Sir HS Maine was the law member:
amended reports of the law commission- members of law commission did not feel this was fair
and many even resigned
- Fourth Law Commission: Focused on easement, negotiable instruments, transfer of property
legislations, etc.

A372 of constitution- all laws passed before independence will be retained unless they violate
the constitution. most of the laws enacted by the first four commissions are still prevalent.

==Concept of Codification==
what is it? uniform and written laws. consolidation (owed to bentham) of the different laws.
"it is the comprehensive and systematic statement in written form of the existing laws"
once codified, it supersedes all the existing laws- muslim hindu laws etc
codification should follow four principles
- complete digest of the law- everything within the code is the law, what is not in the code is not
the law. is "comprehensive"
 Rishabh Jain, 22011553, BBA-LLB(A)

- should enable lawyers and other people to consult this code whenever required and this should
be subject to debate by legal professionals etc
- should be easy to read for even a layman

Advantages:
- less uncertainty
- easier to interpret
- more clarity
- cheapening litigation - no need for experts to tell what law applies or not
- identification is key to future reforms

Potential disadvantages:
- loopholes of the law will be apparent once codified, meaning people can abuse it- HOWEVER,
it gives clarity and can be addressed through reforms

techniques of drafting:
cornwallis code gives an idea of how drafting works
- purpose
- definition clause for uncertain terms
- systematic - clauses, chapters etc

Modern trends:
certain laws still remain uncodified such as Torts
- efforts to codify law - through judgments and setting up of parliamentary committees

Week 8 - High Courts and Establishment (Topic 7 from slide)

ESTABLISHMENT OF HIGH COURTS IN INDIA

Dual Judicature (from 1834-1861)

(was actually prevalent even before 1833)
Crown's courts : Supreme Court (1774) - Original Jurisdiction
- english laws with exceptions to hindus and muslims
- judges were barristers
- procedure of english courts was applied
Company's courts: Sadar Diwani and Nizamat adalat (hastings established) - Appellate
Jurisdiction
- before 1834: regulations of the government
- after 1834: "acts"- uniform
 Rishabh Jain, 22011553, BBA-LLB(A)

- judges were civil servants

- no defined procedure was followed

3 presidency towns- 3 Supreme Courts

Defects:
- no demarcation as to which cases will belong to which courts- uncertainty and confusion
- ==Morton v. Mehdi Ali Khan==: Morton lives in Calcutta, Khan owed some money
to Morton, but Khan lives in Awadh. Case was filed before the supreme court. Since the
defendant was not a member of presidency town, no action could be filed and should go to the
mofussil courts. However, SC came up with "doctrine of constructive inhabitance" - the
defendant was doing businesses in the presidency towns, therefore inhabitance should not be
taken so rigidly.
- ==Musleah v. Mueslah==: Jewish person had properties in the mofussil areas- he later
died. his successor got a case before the SC saying that the English law should apply for the
succession of the property and SC applied English law to divide the property among successors.
Since the property was in the mofussil areas should it go to them? SC took up its power and used
Englih Law. decided that it does not matter where the property is or who filed the case, WHERE
the case was filed matters eventually.
- ==Umesh Choudhary v. Prem Choudhary==: though a property which is there in the
mofussil area, partition deed decreed by SC. Since the inhabitance of the people are from the
presidency areas, they can file in SC. these 3 cases show that even though these cases must have
been taken up by the mofussil courts, they were not.
- ==Mutty loll Seal v. Joygopaul==: the case was filed in both SC and Mofussil areas
and pending in both courts. SC said that if a decision has been arrived at by the mofussil court,
then it can be held final BUT since cases were pending in both the courts, SC has certain other
powers and still proceeded with the case. meaning, both courts would give a judgment, leading to
confusion
- ==Mootteelal Upadhyaya v. Jaggarnath==: people realized SC's abuse of power- vice
president of the bengal council to the court of directors. SC said that the govt was not
cooperating with its decisions .

Charter of 1833 called for unification and thereby codified the law BEFORE amalgamation of
the two highest courts was done.

Govt of India Act, 1858-

transfer of power to the crown (main provision), secretary of state was established, abolished
rural govts in Pitts India act.
why is this an effort to unify the courts? if the company is not there, the company's courts being
there does not make sense.
 Rishabh Jain, 22011553, BBA-LLB(A)

INDIAN HIGH COURTS ACT 1861- next class

Presentation Notes:
**Indian High Courts Act, 1861**

- Establishment of high courts in Bombay, madras and Calcutta

- Why was it made? Due to the prevalence of dual judicature (as ma’am said in the build up
to the charter of 1833 they were all using the doctrine of justice, equity and good conscience,
meaning there was no precedent and this created confusion and uncertainty in presidency areas
and mofussil areas)

- Establishment of high courts was a unification of SCs and company courts

- The act had 19 sections

- High courts were established in place of 3 SCs and Sadar Diwani and Nizamat Adalats.

- **It became easy for the legislators to enact uniform procedural laws to regulate civil and
criminal courts**

- The records and documents of the high court were abolished and became the documents of
the respective High Court.

- Three existing bodies of petitioners in the supreme court and sadar diwani adalats:
Advocates, Attorneys and Vakils.

- Limit on the number of advocates enrolled into the high court (whatever they deem fit)

- If reasonable cause were to be found then they would suspend them from practicing

- Admission of vakeels ended the monopoly barristers (English lawyers) had enjoyed in SCs.

- Gave more opportunities to Indian lawyers and privileges were in a way equal to the british
lawyers

- How was this achieved? Earlier it was said that the high court bench would be exclusively
British, but this faced immense opposition.
 Rishabh Jain, 22011553, BBA-LLB(A)

- Original: advocates (only upon instruction from attorneys). Appellate: vakils. BECAUSE
of the notion that original jurisdiction, high court was the true successor of the SC, but on the
appellate side, it inherited its powers from the sadar diwani Adalat.

- 1863- Madras: no distinction between Vakils and barristers as they removed the above
distinction. This was challenged by the attorneys “in the matter of the petition of attorneys”.
Bombay also much later removed distinction and Calcutta removed it in 1932

- **Constitution of High Courts:**

o 1 CJ + as many as 15 puisne judges (depending on her majesty)

o Judges could be

§ Barristers with minimum 5 years

§ Members of covenanted civil service of minimum 10 years

§ People who are at the minimum sadar ameen judges or principal sadar ameen of at least 5
years

§ Pleaders to either sadar courts or high courts for at least 10 years

o Minimum 1/3rd judges including CJ, should be barristers

o Minimum 1/3rd judges should be members of covenanted civil service

- **Jurisdiction of High Courts:**

o All civil, criminal, admiralty, vice admiralty, testamentary, intestate and matrimonial
jurisdiction

o Had both original and appellate

o Her majesty could grant letters – these letters could grant powers such as going beyond the
limits of the respective presidency towns

o High courts would have superintendence to all other courts its appellate jurisdiction.

o It could also transfer any suit from one court to another and issue rules of practice and
proceedings of the other courts
 Rishabh Jain, 22011553, BBA-LLB(A)

o Her majesty could establish more high court of judicatures anywhere whitihin her dominions
of India, by issuing one of her letters

o Her majesty could also determine territorial limits of HC and time to time transfer the
jurisdiction of one HC to another (this can be done through an Order in Council)

- Charters

o Possible criticism: while the entire aim of the act was unification, different charters don’t help
that cause

ESTABLISHMENT OF HIGH COURTS IN INDIA

Dual Judicature (from 1834-1861)

(was actually prevalent even before 1833)
Crown's courts : Supreme Court (1774) - Original Jurisdiction
- english laws with exceptions to hindus and muslims
- judges were barristers
- procedure of english courts was applied
Company's courts: Sadar Diwani and Nizamat adalat (hastings established) - Appellate
Jurisdiction
- before 1834: regulations of the government
- after 1834: "acts"- uniform
- judges were civil servants
- no defined procedure was followed

3 presidency towns- 3 Supreme Courts

Defects:
- no demarcation as to which cases will belong to which courts- uncertainty and confusion

Charter of 1833 called for unification and thereby codified the law BEFORE amalgamation of
the two highest courts was done. this was done via the all india legislature

Govt of India Act, 1858-

transfer of power to the crown (main provision), secretary of state was established, abolished
rural govts in Pitts India act.
why is this an effort to unify the courts? if the company is not there, the company's courts being
there does not make sense.
 Rishabh Jain, 22011553, BBA-LLB(A)

*indian high courts act 1861*

- 6th august (19 sections)
- enable the crown to establish hcs in the three presidencies
- the hc act didnt do it but rather gave the authority to crown to do so
- crown would do it through - letters patent
- jurisdiction, powers, functions mentioned. - under seal of her majesty (queen
victoria)
- everything below sadar adalat would remain. it is sadar adalat + sc that forms new jurisidction
of hc.

jurisdiction of HC
- CJ and 15 other judges
- who can be a judge
- a barrister with no less than 5 years of experience
- barristers = practiced in england
- any member of civil service for no less than 10 yrs
- any person in judicial office (sardar amees or other lower courts) - in judicial capacity,
but no less than sadar amees for min. 5 yrs
- any pleader/vaqueel who had practiced in sadar adalats/hcs for 10 yrs
- [practicing in england gave you an advantage.] an indian lawyer needed up to 10 years
- who appoints judges - crown
- work in her pleasure
- she can remove them at will
- judiciary is subordinate to executive. [the executive that controls india is in england]
- all kinds of jurisdiction in presidency towns
- took appeals from lower courts
- acts passed by parliament + all india legislature by gov gen - laws concerning

calcutta, bombay, madras, allahabad - hcs. [case juris.]

- original civil, criminal
- special/extraordinary civil and criminal juris - superintendence over lower courts
- if a case comes before sadar amees, it can recall the matter and hear it in the hc instead
- appellate juris - civil and criminal
original side- similar to supreme court
appeals - similar to the sadar diwani and nizamat adalat.

within 3 years a charter could be reviewed after the charter of 1861

- in 1865 review
 Rishabh Jain, 22011553, BBA-LLB(A)

laws that apply in HCs.

- laws for original and appellate were diff.
- original = english law (civil)
- appellate = personal law of that individual (civil)
- same law that the subordinate court applied for that case
- criminal = 1816 all india legislature passed the IPC so that would apply .

CALCUTTA HC - for bengal, bihar and orissa

BOMBAY HC
MADRAS HC

North western provinces did not have high court, therefore another was established in 1866 in
Agra but was Allahbad HC

ALLAHABAD HC (did not have original civil jurisdiction and admiralty and vice admiralty
jurisdiction)
there was a high court in allahabad
and a chief court in oudh
two amalgamated in 1948

advantages of unification
- no of courts decreased
- dual control ended
- hc supervised lower courts
- quality of work of lower courts improved - knew what the system was certainly
- judge efficiency improved
- procedure simplified
- appellate procedure uniform - hc governed it all
- acceleration with codification process
- no clash btw two systems

survivals of the demerits of the past

- original and appellate civil had diff laws applied (SC vs Sadar Diwani and Nizamat Adalats)
- knew that this change would come over time
- as the laws got codified one law began to prevail over territory of india so this disparity
got remedied law by law
- this was overcome in 1860 for Criminal Law cases as the IPC was enforced

*indian high court act of 1865*

- governor-general in council got power in this act to alter the territorial juris of each hc
whenever necessary
 Rishabh Jain, 22011553, BBA-LLB(A)

- that would have to be approved by the crown

*indian high courts act 1911*

- the max no of judges increased
- before 15, now 20 (including chief justice, so technically 19)
- power to establish HCs liberalised
- before crown could not estbl another hc in the same territorial limits of an existing hc
- now that restriction gone - can make additional hcs in the same territorial limits
- now powers and functions would need to be further demarcated however
- gov gen given special powers to appoint additional judges for 2 yr period - (any number of
additional judges) (usually the crown appoints the judges)
- if a judge retires, or cannot function, or excessive workload
- salaries to temporary judges to be paid out of revenue of india

*government of india act 1915*

purpose: consolidate all the acts with respect to government of india into 1 act
- july 29 1915
- high courts will not have juris over revenue matters (IMP)
- sc initially had this and it was taken away after some imp cases in the settlement act
1781.
- reason for removal from HCs had no particular reason.
- gov gen and council and other executives would be immune here from the juris of hc - similar
to settlement act
- even CJ and other judges would be immune in their public capacity.
- removed the power of HC to deal with revenue cases even in its original jurisdiction (possible
reason: even with SCs there was conflict between revenue matters)

PATNA HC
- established for orissa and bihar collectively as Calcutta only for Calcutta
- once Orissa HC came, this HC only governed Bihar

LAHORE HC

government of india act 1935

- no restriction on no of judges - determined by requirements of the court
- the privy council will decide how many judges should be there
- appointment of judges - still appointed by her majesty, gov gen can appoint temporary still
remains
 Rishabh Jain, 22011553, BBA-LLB(A)

- this did not give them any security of tenure, in england there was some sort of
protection for their judges, SO this provision was removed. they can serve till age of 60 until
they do something wrong.
- 5 year provision for Barristers vs 10 for Indians was removed, NOW BOTH HAVE 10
YEARS
- 1/3rd for Barristers + 1/3rd for Civil Servants in 1861 caused administrative
inconvenience, so they removed the quota system, so any person who is fit to become a judge
can become a judge
- appt of chief justice - initially after 1861 act, only barristers and pleaders could become CJs,
but this was removed and now everyone(highest position) can become CJ
- removal of judges process - until good behavior
- jurisdiction - refer above
- salaries - fixed by Privy Council, during the tenure this cannot be changed at the disadvantage
of the judge to give Security for these judges.
- administrative control over high court - debate as to who should have it - provincial govt or
central govt(governor general and council)? it was decided that provincial govt would have
control (today its called state govt)
- appeals - appeals from the HC will go to the Privy Council in England so there is no highest
court of appeal in India

READ CHAPTER 5 OF THE CONSTITUTION OF INDIA

art 214-231 skim through for next class.

Presentation Notes:
**Indian High Courts Act, 1861**

- Establishment of high courts in Bombay, madras and Calcutta

- Why was it made? Due to the prevalence of dual judicature (as ma’am said in the build up
to the charter of 1833 they were all using the doctrine of justice, equity and good conscience,
meaning there was no precedent and this created confusion and uncertainty in presidency areas
and mofussil areas)

- Establishment of high courts was a unification of SCs and company courts

- The act had 19 sections

- High courts were established in place of 3 SCs and Sadar Diwani and Nizamat Adalats.

- **It became easy for the legislators to enact uniform procedural laws to regulate civil and
criminal courts**
 Rishabh Jain, 22011553, BBA-LLB(A)

- The records and documents of the high court were abolished and became the documents of
the respective High Court.

- Three existing bodies of petitioners in the supreme court and sadar diwani adalats:
Advocates, Attorneys and Vakils.

- Limit on the number of advocates enrolled into the high court (whatever they deem fit)

- If reasonable cause were to be found then they would suspend them from practicing

- Admission of vakeels ended the monopoly barristers (English lawyers) had enjoyed in SCs.

- Gave more opportunities to Indian lawyers and privileges were in a way equal to the british
lawyers

- How was this achieved? Earlier it was said that the high court bench would be exclusively
British, but this faced immense opposition.

- Original: advocates (only upon instruction from attorneys). Appellate: vakils. BECAUSE
of the notion that original jurisdiction, high court was the true successor of the SC, but on the
appellate side, it inherited its powers from the sadar diwani Adalat.

- 1963- Madras: no distinction between Vakils and barristers as they removed the above
distinction. This was challenged by the attorneys “in the matter of the petition of attorneys”.
Bombay also much later removed distinction and Calcutta removed it in 1932

- **Constitution of High Courts:**

o 1 CJ + as many as 15 puisne judges (depending on her majesty)

o Judges could be

§ Barristers with minimum 5 years

§ Members of covenanted civil service of minimum 10 years

§ People who are at the minimum sadar ameen judges or principal sadar ameen of at least 5
years

§ Pleaders to either sadar courts or high courts for at least 10 years

 Rishabh Jain, 22011553, BBA-LLB(A)

o Minimum 1/3rd judges including CJ, should be barristers

o Minimum 1/3rd judges should be members of covenanted civil service

- **Jurisdiction of High Courts:**

o All civil, criminal, admiralty, vice admiralty, testamentary, intestate and matrimonial
jurisdiction

o Had both original and appellate

o Her majesty could grant letters – these letters could grant powers such as going beyond the
limits of the respective presidency towns

o High courts would have superintendence to all other courts its appellate jurisdiction.

o It could also transfer any suit from one court to another and issue rules of practice and
proceedings of the other courts

o Her majesty could establish more high court of judicatures anywhere whitihin her dominions
of India, by issuing one of her letters

o Her majesty could also determine territorial limits of HC and time to time transfer the
jurisdiction of one HC to another (this can be done through an Order in Council)

- Charters

o Possible criticism: while the entire aim of the act was unification, different charters don’t help
that cause
Rishabh Jain, 22011553, BBA-LLB(A)
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 9 - Privy council and the Federal Court of India (Topic 8 of slide)

Privy Council

Three divisions:
Henry II reign - judicial work of Curia increased
Evolved into separate judicial bodies,
**Court of the King’s Bench
Court of Common Pleas
Also Court of Exchequer** established separate from Exchequer on the fiscal side - thus 3
Courts
In due course the smaller council of the King became the Privy Council
16th century - during Tudors - Council had exclusive power to adjudicate upon appeals from
colonies
1667 - Committee for the Business Trade - committee of the Privy Council - Privy Council
delegated the authority to hear appeals from colonies to this Committee
However this Committee had persons not learned in law

Judicial Committee:
- hearing appeals from British Colonies
- disposing other matters referred by his majesty

Composition
- Modified in acts of 1844, 1908, 1929 etc
- Lord Chancellor
- Lord president (former and current)
- Judicial Councilors who have held judicial offces (like judges of HC)
- judges or former judges of the suprior courts of the dominions and colonies as they crown may
appoint
- Quorum - 3 members normally, 5 in imp cases

Procedure
judicial committee as an advisory body - submission of reports to his majesty
there would not be a dissenting opinion given, so they will have to give unanimous opinions

Jurisdiction
appeals from colonies come to the privy council
it is considered that the king is the fountain of justice, so it is the duty of the king to administer
justice in the colonies as well

Peculiar Nature
 Rishabh Jain, 22011553, BBA-LLB(A)

- report was in the form of an advice

- only one opinion (no dissent)
- not bound by precedents (uncertainty and did not adjust to the indian personal laws)

Three rules guiding appeals to the Privy Council

- his majesty's prerogative extends to criminal as well as to civil cases
- interference in criminal cases would not be done unless forms of legal process are disregarded
or thete is violation of the principles of natural justice OR
- unless there is a miscarriage of justice or violation of some legal principle or procedure

Appeals from India to Privy Council

1726 charter - bridged the gap between Indian and English law
Mayors court to governor-general appeal AND second appeal to privy council
1753 charter

1818 - any case could be appealed and the pecuniary restriction was removed

Case of Andrew Hunter - Hunter filed case against Raja, as his grandmother owed Hunter
money, issue was whether Raja was liable for a debt or not. this case was eventually dismissed
but it took eight years for the case to be dismissed AS they had to go all the way to england

Reorganisation of the Privy Council - Two individuals from India were to attend the sitting of
Councils - no right to vote - provided expertise with respect to personal laws

Appeals from HCs to Privy Council - Privy Council had the right to grant special leave, CPC and
CrPC came into force. S109-112 of CPC dealt with HC to Privy Council cases, included a
condition that the case should have an important question of law for the Privy Council to hear.
Rare cases where the Privy Council would take up a criminal matter

Appraisal of the system of Appeals to the Privy Council

- PC helped in the intro of common law in India and ensured uniformity in interpretation of laws
and following principles
- India and PC had an association of 200 years, from even when lay people were giving
judgments
- though appeals were rare, PC mainated a standard of judgments was maintained in commercial
and civil cases
- PC still has some kind of bearing on cases (although no obligation)
- Unless SC has expressly overruled cases of PC, they have binding value over HC

Disadvantages of PC:
- distance - to appeal etc, more expenditure, hiring barristers
 Rishabh Jain, 22011553, BBA-LLB(A)

- though ex SC judges were assisting, hindu and muslim law interpretation was a problem
- increasing public opinion that why should we have a court in england to deal with appeals
"judicial slavery"

FEDERAL COURT (deals with only constitutional matters)

- 1921- Hari Singh Gour realised the necessity of establishing an All India court of appeal
instead of PC. however, this was rejected
- 1928- Nehru Commission report: federal constitution for India. Suggested SC as apex of
judiciary
- 1931-1932: BR Puri introduced resolution for the establishment of the SC in India. PASSED IN
legislative assembly
- 1933- white paper issued by british govt. this said that federal court + SC. joint committee said
only federal court
- 1935- FC established under S200 of GOI Act 1935.
- 1937- Inauguration of FC
- 1947 - independence
- 1950- A125 - establishment of SC

Original Jurisdiction - with regards to two units or disputes between center and unit(state)
Appellate Jurisdiction - with regards to constitutional matters, interpretation of such matters
Advisory Jurisdiction - GG of India could refer any matter to FC

1 CJ + 6 Puisne Judges APPOINTED BY KING. 65 year age limit. judge can be removed for
misbehavior upon recommendation of PC

Qualification of judges
- min 5 years in HC
- barrister or advocate with 10 years experience
- pleader in HC for 10 years

1937- 7k per month for CJ and 5k per month for other judges .

there was a provision in the 1935 act which allowed to increase FC's jurisdiction
Federal Court Act- 1948
- enlargement of jurisdiction

Abolition of PC Jurisdiction Act, 1949

- not fully abolished, final court of appeal beyond FC was PC
- FC bridged gap between lower courts and PC

1950 constitution
 Rishabh Jain, 22011553, BBA-LLB(A)

- All powers of FC with SC

**THE PRIVY COUNCIL APPEAL AND BRITISH IMPERIAL POLICY**

**Origin**

1. Norman conquest (1066) shaped English law and constitution of courts in England
2. Introduced a powerful central government in England - executive, legislative, judiciary
3. Rule through curia regis - Supreme Feudal Council - advised the government

**Three Divisions**

1. Henry II reign - judicial work of Curia increased

2. Evolved into separate judicial bodies,

· **Court of the King’s Bench**

· **Court of Common Pleas**

3. Also **Court of Exchequer** established separate from Exchequer on the fiscal side -
thus 3 Courts

4. In due course the smaller council of the King became the Privy Council

5. 16th century - during Tudors - Council had exclusive power to adjudicate upon
appeals from colonies

6. 1667 - Committee for the Business Trade - committee of the Privy Council - Privy
Council delegated the authority to hear appeals from colonies to this Committee

7. However this Committee had persons not learned in law

**Reorganisation**

1. This defect led to Judicial Committee Act of 1833

2. Established the JCPC - committee of legal experts

· It heard appeals from colonies

· Disposed other matters referred to it by the Crown

 Rishabh Jain, 22011553, BBA-LLB(A)

3. Last court of appeal under the throne

**Composition**

1. Lord Chancellor
2. Existing and former Lord President of Council
3. Privy Councillors who have held judicial office
4. Lords of Appeals in ordinary
5. Such judges or former judges of superior courts of Dominions and colonies
6. **Qorum -** generally **3** and **5** in important cases

**Procedure**

1. JCPC is not a court of law - advisory board - reported their opinion to the King and King
bases judgement on this report
2. Every colony appeal is called as ‘The King’s Most Excellent Majesty in Council’ - thus
appeal is made to King and he refers it to JCPC for their opinion
3. Advice ends with “we humbly advise”
4. Only one judgement and no dissent was allowed to be published - to prevent embarrassment
in front of King
5. Duty of Privy Councillor - non disclosure of personal advice - only the one single advice is
given - judgement speaks in one voice even if its not unanimous
6. Upon tender of advice, a draft Order in Council is prepared

**Jurisdiction**

1. **_Supreme judges of last resort in each of the Empire’s foreign settlements_**

2. Rationale - King is the fountain of justice and it is inherent right to do justice

**Peculiarities**

1. Council report is **advisory**

2. No dissent; only **one opinion**
3. **Not bound by precedents**

**Three rules guiding appeals**

1. Civil and criminal both could be appealed

2. **Criminal cases** would not be heard unless legal process or natural justice is violated
 Rishabh Jain, 22011553, BBA-LLB(A)

3. Unless there is miscarriage of justice or violation of legal principle it would not interfere in
**civil cases**

**Appeals from India**

1. Charter of 1726 and 1753

· Allowed appeals from Mayor’s Court to go to Governor-in-Council and then Privy Council
in 1726

· Retained in 1753

2. Regulating Act and subsequent Charters

· Appeals from SC went to Privy Council above 1,000 pagodas and within 6 months of
judgement

· Recorder’s Court in Madras and Bombay also sent appeals to Privy

· 1800 and 1801 - Recorders replaced by SC and it had appeal to Privy

· In case of Company Courts only cases above 5000 pounds went to the Privy Council

· **Defect -** due to this very few cases went to Privy

· This pecuniary restriction removed in **1818;** any case could be appealed

**Defects -** time consuming and costly

1. Case of Andrew Hunter

· Hunter filed case vs Raja to ask money as he owed money to Hunter granny

· Appeal from Mofussil to Sadr to Privy

· Shows how **time consuming** it is

**Reorganisation of Privy Council in 1833**

 Rishabh Jain, 22011553, BBA-LLB(A)

· Two individuals from India were to attend the sitting of Councils - no right to vote -
provided expertise with respect to personal laws

· Certain cases were unique for these experts so they couldn’t judge effectively like revenue

· Inclusion of legal experts and maintaining the composition of the Council

3. Appeals from High Courts to Privy Council

- Two conditions

· HC certifies that the case is fit to appeal - has an important question of law

· Privy Council must grant special leave to hear the case

- CPC and CrPC came into force

- CPC Section 109-112 dealt with these conditions - only rarest criminal cases were taken up by
the Privy Council

**Appraisal of the system of appeals to the Privy Council**

1. Had a lot of powers; dealt with appeals from over 1/5th of the world
2. Helped in the introduction of common law in colonies
3. Ensured uniformity in interpretation of laws; different nations would interpret laws differently
but since this was a singular system of appeals it led to uniformity
4. They maintained a high standard of justice; key in introducing principles in the colonies

**India and Privy Council**

1. Association of over 200 years; even when lay people gave judgements
2. Execution of common, civil, criminal law in India owe their origins to Privy Council
3. Council had high threshold to take up cases (stated above) - rare appeals - yet it was essential
in giving standards of justice in commercial and civil cases
4. Dealt with over 2,500 judgements from India
5. Still has an impact on Indian judiciary as High Courts consider Privy as superior due to,

· Article 225 - High Courts jurisdiction same as before

· Article 372 (1) - pre Constitution laws are valid unless they are contrary to principles

**Disadvantages of Council and India**

 Rishabh Jain, 22011553, BBA-LLB(A)

1. Distance, time and money

2. Requirement for English lawyers
3. People were ignorant about the process of appeals
4. While ex-SC judges helped the Council, there were difficulties in interpretation of personal
law
5. Why to have a foreign Court rule over us - intertwining of nationalism with judiciary -
judicial slavery

**Introduction**

1. Late 16th century - Privy Council went from an obscure mediaeval institution into a court
whose jurisdiction extended to all the continents of the globe and one quarter of the world’s
population.
2. **Lord Brougham -** made it clear that it required restructuring
3. **1833 -** Judicial Committee of the Privy Council
4. **Objectives of the Privy Council**

· Role of Council in maintaining imperial unity

· Perceived need for an independent and external adjudicatory to act as an arbiter of the
divisions of power within federal systems in the British Empire

· Retaining Parliament’s powers to oversee key economic policies of the Dominions

· Council’s involvement in the development of human rights in Dominions

5. These objectives are examined through themes of legal instrumentalism,

modernisation and national identity.

· Legal instrumentalism - a legal institution that began life in medieval England and later
served as a vital source of unity; instrument of economic oversight

· Modernisation - human rights and safeguarding rights; instrument of economic oversight

· National identity - assertion of national identity led to the Council’s demise

**6.** **Critique of the Council**

 Rishabh Jain, 22011553, BBA-LLB(A)

· Upheld British governmental policy objectives

· Not independent of the government

**The Privy Council Appeal as a Pillar of Imperial Unity**

1. _Golden link_ or _sheet-anchor_ of the British Empire.

2. Uniform interpretation of,

· Statutes drafted in self-governing dominions of the Empire

· Unwritten common law between the common law parts of the Empire

**3.** **Criticism**

· Taking laws from one part and applying in another part of the Empire was illogical as
circumstances were different; **ex:** application of Indian Islamic Law in East Africa

· Better to allow dominions to adapt laws as per their specific needs

· Uniformity can be achieved by means of consultation rather than imposition by a judicial

body

· It maintained the superiority of imperial legislations and invalidated local laws; **ex:
_Nadan v. The King_ (1962 Canadian case)** - declared the Canadian Criminal Code void as
imperial statute was superior; struck down Irish laws which violated imperial legislations

4. **Imperial legislation**

· Body of statute law that was passed by the parliament at Westminster for the colonies and
Dominions of the British Empire; **enjoyed superior status to local laws**

· This superiority was maintained by the Colonial Laws Validity Act 1865

· Judicial review has its roots in the function of the JCPC striking down local laws
 Rishabh Jain, 22011553, BBA-LLB(A)

5. Diversity

· JCPC as a pillar of unity was depicted by diversity of litigants with different races and
religions coming to Court; however the same diversity was not seen with judges

· JCPC was always dominated by UK judges

· **Syed Ameer Ali -** first native Indian judge of the JCPC in 1909

· **1930 - Dinshah Mulla** appointed as judge - Ali and him were praised for their
indigenous perspective to jurisprudence - was a Parsi but was supposed to apply Hindu / Muslim
personal law

· Less **Africans** sat as judges except white South Africans

6. Lack of dissent

· **Rule -** only a single unified judgement could be delivered, while any dissenting
judgments could not be made public

· Contributed to their role as an upholder of imperial unity

· **Opinion -** important to know counter argument; narrow vision of law; dissent enables
enhance one’s understandings; transparency

**_Conclusion_**

1. Role of the Council as an instrument of Imperial unity declined - **1931 Statute of

Westminster -** abolished the superiority of Imperial statutes
2. In some areas like **maritime laws** uniformity was deemed essential - the Statute only
intended to reverse the policy of using JCPC to enforce uniformity
3. Some Dominions did not accept the statute thus Council okayed **a balancing act**
enforcing uniformity in some cases while tolerating diversity in some
4. Rule of **no dissent** was abolished in 1966
5. **Association of national identity** with judicial sovereignty declined the JCPC’s
jurisdiction - the sentiment of it not being “our” court, **ex: Kenya**
 Rishabh Jain, 22011553, BBA-LLB(A)

**Overseer of Systems of Federal and Devolved Government**

1. Privy Council was perceived as an upholder of Imperial unity as well as **local unity, ex:**
appeal was an important source of unity between the colonies that would later form the United
States of America
2. Accounts on British India too credit it as an important source of internal unity; acted as a link
between the different courts
3. **Key roles**

· Interpreting the **division of powers** between the provincial and Dominion governments
and legislatures in Canada after 1867 and the state and federal governments and legislatures in
Australia - **Council favoured the provinces in Canada and the state in Australia -** led to
tensions and call for abolishment of Privy Council appeal

· Arbiter of the limits of autonomy under the bills of 1886 and 1893 and the acts of 1914 and
1920 designed to give Ireland a **devolved** parliament within the United Kingdom

· In the 1990s the Privy Council was empowered to hear appeals relating to the **devolution
of powers** to legislative assemblies in Scotland, Wales and Northern Ireland before this power
of jurisdiction was eventually transferred to the new Supreme Court of the United Kingdom in
2009.

· Settling boundary disputes between parts of the Empire, **ex:** boundary dispute between
Victoria and NSW, determination of boundary between Newfoundland and Canada -
**condemnation by those unhappy with the verdicts**

· Creation of the boundary commission which divided Irish Free State and Northern Ireland -
still controversial

· It was supposed to define the limits of autonomy to be given these states but never came to
fulfil its obligation

**_Conclusion_**

1. Those in favour of the dominion governments in Canada and Australia argued against the
Council as it hampered the emergence of these governments
2. But the Council was considered important in preventing the separation of Quebec

**Oversight of Economic Policy**

 Rishabh Jain, 22011553, BBA-LLB(A)

1. Council promoted British Imperial policy even in the economic sphere

2. Key areas like **Merchant Shipping Act and Copyright Act** were exclusively within
Imperial competence - **Council was the final arbiter**
3. The court acted as a safeguard of British investors in Dominion securities or Dominion
business undertakings by shielding them from reckless or irresponsible actions by local
governments, **ex: move to abolish appeal in Australia was resisted due to the UK people with
an interest in Australian securities and undertakings**
4. **Analogous example - Colonial Stock Act -** Dominions could list their stocks in the
trustee securities list only after agreeing that the British government had a veto power over
Dominion legislations wrt the security
5. **Critics**

· These policies suggested that the United Kingdom could not trust the legislatures and
courts of the self governing Dominions to act responsibly

· Council advocated itself as a protector of sectional interests - contradictory - example of

abolishment of Australian appeal

· Irish case **_Lynham v. Butler_** - Council perceived as a protector of Irish landlord

interests

**_Conclusion_**

1. Created an image of the JCPC as the representative of the large vested and monied interests of
British capitalists
2. It acted in the interest of great fleet owning nations in shipping cases against nations who
were relatively weaker

**Privy Council and Human Rights**

1. Progressive agenda of the Privy Council

· **_Attorney General for British Columbia v. Attorney General for Canada -_** Council
invalided discriminatory legislations against Japanese migrants

· Kenyan cases **_R v. Kuruma -_** principle of excluding prejudicial evidence in criminal
trials

· Canadian case - **_Edwards v. Attorney General of Canada (Persons Case) -_**

established the ‘living tree doctrine’ that interpretation of the constitution should be according to
present circumstances
 Rishabh Jain, 22011553, BBA-LLB(A)

2. Perceived role as a **protector of minority communities and vulnerable majorities**

· Minorities like French-speakers in Canada, English-speakers in SA, Protestants in Ireland,

etc.

· Played the role of a ‘neutral arbiter’

· However this created hostile reactions from the dominant communities, **ex: Irish Free
State protested against the protection of Protestant minority**

· Subsequently the Irish Free State abolished the appeal to the Council

· Council protected the black majority in South Rhodesia against the **dominant** white
minority and subsequently Rhodesia abolished the appeal

**_Conclusion_**

1. This role gained prominence after WWII; promoted as a model of an international human
rights court
2. However, **criticism is that the Council’s decisions are out of touch with local values part of
national identity**
3. **Ex: Singaporean case _Jeyaretnam v. Law Society of Singapore -_** Council condemned
the abuse of process by indigenous courts; appeal abolished subsequently
4. **Ex: Jamaican case _Pratt & Morgan v. Attorney General of Jamaica -_** opposition of
Council to capital punishment is inconsistent with Carribean values
5. More outrage against the Council as it is a **court sitting in another jurisdiction staffed with
foreign judges**
6. The beginning of a phased introduction of sharia law in the small East Asian county of Brunei
in 2014 is likely to create new challenges for the Judicial Committee of the Privy Council as its
final court of appeal. The jurisdiction of the Privy Council in relation to Brunei is limited to civil
cases. Nevertheless, the potential for decisions based on human rights principles that are
vulnerable to accusations of being out of touch with local values and conditions remains acute. In
this context, the continuation of the Privy Council appeal in relation to Brunei may soon come
under strain.

**But the Council has adapted to all threats;** seamless transition from pillar of Imperial
political and economic unity to a neutral arbiter and champion of human right values
Rishabh Jain, 22011553, BBA-LLB(A)
 Rishabh Jain, 22011553, BBA-LLB(A)

Week 10 - History and evolution of the Legal Profession in the pre-independent and post-
independent India (Topic 9 from slide)

potential questions:
- position of Indians
- fees, religion
- discipline
- legal practitioners act

HISTORY OF LEGAL PROFESSION

"A well organised system of justice administration postulates a properly equipped and efficient
bar"- Law Commission 1958

Lawyer
- point out when the court deviates from the matter/law
- arguments on both sides
- very important limb in administration of justice

Evolution:
- struggle for recognition (as Indian lawyers were not recognised time and again)

uniformity in presidency courts - 1726 charter and mayors court. BUT there were no specific
provisions to lawyers. it was presumed that mayors court themselves would formulate rules
allowing lawyers to come and plead before it.
Madras mayors could was said to have a detailed set of rules
solution to all - 1753 charter. said that governor-general is superior . but even here, there were no
provisions for lawyers. SINCE it was so disorganized, people practicing law had no training or
knowledge, people chose it as their last resort.

1774
Establishment of SC was the **first step** in organising legal profession
- SC was given powers to identify, admit and enroll advocates and attorneys who could plead
before the court as they "seem fit" the the court.
- Purpose: to appear and act and plead on behalf of the suitors . pleading: going and arguing
before the court. eg: barrister(more of a specialist). acting: assisting the client, filing applications
etc . eg: solicitor . (THERE was no division between pleading and acting when these regulations
were made. they wanted to mirror evtg from Britain)
- SC is given the power to remove attorneys and advocates on reasonable cause
- no other person, other than those advocates or attorneys who have been admitted and enrolled,
will be allowed to appear and plead or act in the court.
- Advocate - english or irish barristers . APPEAR AND PLEAD
 Rishabh Jain, 22011553, BBA-LLB(A)

- Attorney- british attorney or solicitor . APPEAR AND ACT

- NO INDIANS HERE
- ==Aswini Kumar Ghosh vs Arbind Bose==: laid out the distinction between
advocates and attorneys functions

**Company Adalats**
1793 - Regulation VII. CALCUTTA. cornwallis code 1793.
why it came? pleading in cases had to become a distinct profession . it was said that only
those with good knowledge of muslim and hindu law (for mofussil areas) and with good
character could practice. only muslims and hindus could become pleaders (religious check). most
of them were chosen from 2 colleges- Mohamudeen college (estb by Hastings) and Hindu
College.
restrictions- to ensure safety and welfare of litigants. lawyer acts as trustee to clients
role- arguments for/against. + highlighting when the court deviates from the law and
commits an error (remembering they are an officer of the court).
PREAMBLE STATED ALL OF THIS. with proper sections, sub sections etc.
sadar diwani adalat: given the power similar SC to enroll pleaders
another provision: scale for professional fees - based on a % of value of property etc. so a
person cannot charge more than the fees given on the scale. any lawyer who does not follow this
limit is eligible to be dismissed.
concept of vaqalat - when a client is appointing a legal practitioner where he signs a
vaqalat nama - authorising the practitioner to act on behalf the client and the latter is bound by
the practitioners actions.
if enrolled in one court, then cannot appear or plead in another court. and must go the
court enrolled in on a regular basis. (if not possible, then inform the registrar)
disciplinary actions by sadar diwani adalat. one major reason for dismissal-charging high
fees.
these restrictions makes the legal profession subordinate to the courts and one very object
of the act is to tell the court if it deviates, so if this is to be fulfilled then some autonomy should
be given to the practitioners.
1802 - Madras Regulation X and Bombay Regulation XIV
provisions of Regulation VII applied here
1814- Regulation XXVI
changes compared to VII
powers of sadar diwani adalat are given to the provincial council (acted as bridge
between district and sadar diwani adalats)
can pass disciplinary proceedings against an advocate
hindu muslim religious eligiblity remained
fees - more strict. they cannot even charge lower fees, let alone higher
suspension can be done by the lower courts as well, with dismissal by the higher courts
 Rishabh Jain, 22011553, BBA-LLB(A)

they became even more subordinate to the courts due to this increased regulation. lawyers
were helpless and judges always had powers over them
1816- Madras Regulation XIV
provisions of Regulation XXVI applied here
1827- Bombay Regulation I
provisions of Regulation XXVI applied here
1831- Regulation V
situation got better
no restriction with respect to religion
fees - removed. a person was free to contract any fees with the client
1846 - Legal Practitioners act
incorporated changes from Regulation V to other presidencies
first all india act w respect to legal profession
1. open to everyone with all nationalities - sufficient knowledge and good character
2. every barrister will be eligible to plead before sadar diwani and nizamat adalats
- but indians practicing in company's courts could not practice in SC
- barristers were not well versed with indian law
3. pleaders and advocates will be free to contract any client with respect to fees
4. Compulsory attendance was removed

non licensed people practising:

mukhtars (who practiced criminal law in lowest courts of the company).
revenue agents in revenue courts
THEREFORE, 1865 Pleaders, Mukhtars and Revenue Agents Act was passed and their
work was recognised and tag of legal practitioners was given to them

Indian High Courts Act, 1861

- Three categories: advocates, attorneys and vakils
- high courts could admit and enroll. they could also remove.
- qualifications for admission
- commission suggested that the vakils must be differentiated from barristers, but there
was opposition and vakils were finally included.
- Original and Appellate jurisdiction - Original: advocates (only upon instruction from
attorneys). Appellate: vakils. BECAUSE of the notion that original jurisdiction, high court was
the true successor of the SC, but on the appellate side, it inherited its powers from the sadar
diwani Adalat.
- Division between attorneys and advocates remained (pleading and acting) - Original
- all 3 of them could plead in Appellate jurisdiction
- 1866- Madras: no distinction between Vakils and barristers as they removed the above
distinction. This was challenged by the attorneys “in the matter of the petition of attorneys”.
Bombay also much later removed distinction and Calcutta removed it in 1932
 Rishabh Jain, 22011553, BBA-LLB(A)

- challenged by barristers
- ==petition by attorneys== - 1876: allowing vakeels is removing their
cases AND they were experts and more qualified compared to them. MADRAS HC
DISMISSED THE PETITION - ruling that its not ultra vires to the charter (this is because it is a
delegated legislation so it cannot execute decisions which are not given to it)
- ==Namberumal Chetty v Narasimhachari==: 1916. HC dismissed
petition, BUT also said that vakeels too needed some qualifications and maybe their
qualifications can be increased rather than removing them.
- criticism: if barristers were fine with pleaders as judges, then why
were they not fine with them as lawyers.
- Bombay- non barristers had to qualify an exam in order to participate in the original
side of the HC
- Calcutta- remained till 1932.

Legal Practitioners Act 1879

- passed to consolidate all lawyers there in mofussil areas
- pleaders, mukhtars and revenue agents act was repealed
- district diwani adalats - conditions - division between indian lawyers - HC: vakils, subordinate
court: pleaders. 6 CATEGORIES OF LAWYERS- attorneys, advocates, mukhtars, pleaders,
revenue agents, vakils
- all of these 6 were brought under the HC.
- rules for qualification were made. they( advocates and attorneys and vakils) could practice in:
- HC they are enrolled in
- all subordinate courts to that HC
- all courts there in British India except other HCs
- for mukhtars and pleaders
- chartered HC could make rules, but non-chartered cannot and they must seek
permission from the provincial govt.
- these rules: who can become pleaders and mukhtars
- who can become pleader?
- any non law graduate who clears the pleaders exam
- OR a law graduate who does not possess additional qualifications which HC has
set
- certain number of years as pleader = eligible for vakil in HC
- who is a law graduate? LLB from indian university
- who can become mukhtars?
- HC had power
- Mukhtarship exam
- they could not become vakils later
- for revenue agent
- chief controlling revenue authority decides
 Rishabh Jain, 22011553, BBA-LLB(A)

Legal Practitioners Act 1884

- all non chartered HCs could make rules provided they get sanctions from provincial govt
- women?
- calcutta HC said no first.
- patna hc: case- ==hazara==: female who refused to be admitted, PATNA HC said that
words of the statute meant that women cannot practice

Legal Practitioners (women) Act, 1923

- women cannot be denied enrollment only due to gender

INDIAN BAR COMMITTEE 1923

- divide between vakil and barrister still remained. upsetted indian practitioners. HCs had
enormous powers against a lawyer. lawyers wanted autonomy and homogenous group of people .
Munshi Eshwar Sharan - bar council to regulate enrollment AND wanted to remove divide
between diff types of lawyers. also removing dual agency - acting and pleading. these were put
forth besides the legislative assembly
- indian bar committee set up under Sir Edward Chamier - number of indians were only 3
- a committee looking into the rights of indian lawyers has only 3
- recommendations of the committee:
- having one kind of lawyers is a good step BUT are in favor of dual
agency(specialisation, division of work etc)
- unification of vakils and advocates is essential
- single grade of practitioners with respect to HCs
- even if there is a division between original and appellate, it should be based on
qualification not nationality
- formation of Bar Council - rather than having all india bar, state bar councils.
- coz each province is unique and has diff regulations
- people would have to travel to the one bar council
- arguments for all india bar
- national sentiments
- having one strong body
- final decision: separate bar councils

Indian Bar Councils Act 1926

- making of SBCs (state bar councils) - five areas: calcutta, bombay, madras, allahbad, patna, for
others - wait for the notification given by governor general and council
- what is it? power to make laws
- 15 members
- advocate general etc
- powers however, were low
 Rishabh Jain, 22011553, BBA-LLB(A)

- disciplinary action and enrollment was done by HCs

- upon formulation of disciplinary action, it will consult the SBCs who will give a report,
and then the HC can still reject it
- pleaders, mukhtars and revenue agents remained outside the purview of the act

All Indian Bar Committee 1951

- to overcome the 1926 act
- after independence, more demand for power
- committee under chairmanship for Justice SR Das of SC
- recommendations
- register of all existing advocates
- all india bar can be done + SBCs as well
- dual agency - not against it
- powers of Bar Councils - more powers with respect to regulating legal qualification
- disciplinary proceedings - more power to bar councils

Law Commission Report 1858

- reiterated most findings of the 1951 committee

Indian Advocates Act 1961

- upon the recommendations of the previous 2 acts
- after graduation -> apply to SCBs -> whose enrollment committee will review application etc -
> send to all india bar
- legal education committee - regulate and give qualifications on who can become lawyers
- disciplinary committee - misconduct etc, they will have a proper criminal proceedings
- all these functions are done by enrollment fees. 25% of the fees should be sent to the all india
bar by the SBCs
- single class of practitioners - advocates
- any person enrolled in any state bar can practice in SC
- how are senior advocates chosen - quorum of judges chose .
- when u become a senior- you cannot file a vaqalat
- the senior is engaged only for arguments and advise by other lawyers
- counsel engages with clients, files vaqalats etc
- SCs- advocate on record
- exam for it and q paper is set by judges etc
- once cleared
- other restrictions: office should be within vicinity
- cases in SC are filed under advocate on record's sign
- NEW ERA
Rishabh Jain, 22011553, BBA-LLB(A)
 Rishabh Jain, 22011553, BBA-LLB(A)

Important textbook stuff + readings + questions

Topic 1 - Introduction and Legal History

1. Textbook - Kulshreshta