CHAPTER- II

EARLY ADMINISTRATION OF JUSTICE IN BOMBAY, MADRAS AND

CALCUTTA

Arrival of Europeans in India

At the end of the 15th century, several European nations came to India as trading
merchants. The landmark event was in 1498, when Vasco da Gama discovered the sea
route to India and landed at Calicut on the Malabar Coast.
In the second half of the 16th century, the Protestant nations of Western Europe
developed a keen interest in the Indian trade. The Dutch were the first to take the lead, and
soon afterward, the English merchants followed them.
By the 17th century, the attitude of these foreign traders remained purely
commercial, which suited the political and economic conditions prevailing in India at that
time.

Weakening of Mughal Power:

During the 18th century, the Mughal Empire weakened considerably. Powerful
nobles and local chiefs began to carve out independent kingdoms for themselves. Taking
advantage of this political fragmentation, the English and French East India Companies,
with their growing military strength, started to intervene in the wars among these local
powers.
Ultimately, the English East India Company emerged victorious, steadily
expanding its area of influence, and finally laying the foundations of the British Empire in
India.

The English East India Company: Development of Authority under Charter:

The English first came to India in 1601 as a body of trading merchants. On 31st
December 1600, Queen Elizabeth I granted a Charter to the Company.
 This Charter gave the London East India Company the exclusive right “to trade
into and from the East Indies, in the countries and parts of Asia and Africa” for a
period of 15 years.
 Through this Charter, the Company became a juristic person with exclusive
privileges of trade in the East Indies.
 Later, the same Charter also conferred legislative powers upon the Company. It could
frame bye-laws and regulations for the good governance of the Company and its
servants.
 The Charter further authorized the Company to impose fines and punishments in
accordance with the laws, statutes, and customs of England.
Thus, what began as a trading corporation gradually acquired quasi-governmental
authority, setting the stage for its later role as a political power in India.

Development of the English East India Company under Charters (1600–1698):

a) Charter of 1600
 Granted by Queen Elizabeth I (31st December 1600).
  The Company was established as a body of merchants with exclusive rights to trade
in Asia and Africa for 15 years.
 Provisions concerned only trade privileges.
 The Company became a juristic person.

b) Charter of 1609
 Granted by James I (31st May 1609).
 Confirmed all earlier privileges and extended them in perpetuity, subject to possible
withdrawal after 3 years’ notice.
 Essentially a renewal of the 1600 Charter.

c) Charter of 1635
 Granted by Charles I.
 Allowed Sir William Courten to form a rival trading body, known as Courten’s
Association.
 This broke the monopoly of the old Company and created rivalry.

d) Charter of 1657
 Granted by Oliver Cromwell.
 Amalgamated all joint stocks into one united stock.
 Ended rivalry between Courten’s Association and the Old Company by merging them.

e) Charter of 1661
 Granted by Charles II (3rd April 1661).
 Turning point in Company’s history → from a trading concern to a territorial
power.
 Extended privileges and recognized Company’s new structure.
 Period of unprecedented prosperity began.

f) Legislative Power of the Company

 Charter of 1600 gave the Company limited power to legislate for its servants.
o Subject to two conditions:
1. Laws should not contravene English law (statutory or customary).
2. Laws should be reasonable.
 Charter of 1661 made English law applicable in India for the first time.
 Gradually, Company powers developed into local governance.

g) Charter of 1668
 Bombay transferred to Company by Charles II (received as dowry from Portugal).
 Company to pay annual rent of £10.
 Empowered the Company to:
o Make laws, orders, and ordinances for good government of Bombay.
o Establish courts of judicature similar to those in England.
h) Charter of 1683
 Granted by Charles II.
 Authorized the Company to:
o Raise military forces.
o Establish Admiralty Courts wherever necessary.

i) Charter of 1686–87
 Granted by James II.
 Expanded earlier privileges.
 Authorized the Company to:
o Appoint admirals and sea-officers in its ships.
o Establish a municipality and a Mayor’s Court at Madras (1687).

j) New Company of 1693 – General Society

 Established by the Whigs to break the Old Company’s monopoly.
 Received statutory recognition in 1698 as the “General Society”.
 Rivalry and conflicts followed between the Old and New Companies.
 Later united by Godolphin into “The United Company of Merchants Trading to
the East Indies”.

k) Charter of 1698
 Granted by William III (13th April 1698).
 Reorganized the Company’s administration:
o Created a Court of Directors.
o Final control of Company affairs vested in the Court of Proprietors.
 This constitution of the Company continued until the Regulating Act of 1773.
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ADMINISTRATION OF JUSTICE IN MADRAS

(1639-1726)

In 1639, Francis Day of the East India Company acquired a piece of land from a
local Hindu Raja. On this land, the Company constructed a fortified factory, which
became the nucleus of the English settlement.
 The area around the factory, inhabited mainly by the English and Europeans, came
to be known as White Town.
 The adjoining village of Madraspatnam, inhabited mostly by Indians, came to be
called Black Town.
 Together, White Town and Black Town formed the settlement of Madras.
The administration of justice in Madras developed gradually and can be studied in three
distinct stages:
1. The First Phase (1639–1665), marked by the early judicial role of the Agent and
Council.
 2. The Second Phase (1665–1683), beginning with the trial of Mrs. Dawes and leading
to the reorganization of courts.
3. The Third Phase (1683–1726), characterized by the establishment of the Admiralty
Court, the Corporation and Mayor’s Court, and further consolidation of British
judicial authority.

FIRST STAGE – 1639-1665

Before 1665, Madras was not a Presidency town but a settlement subordinate to Surat.
The administrative head of the settlement was called the ‘Agent’, who governed with the
assistance of a Council.
In cases of serious crime, the Agent and his Council referred matters to the
Company’s authorities in England for advice. However, this arrangement had serious defects.
The judicial powers of the Agent and Council were vague and indefinite, leading to much
delay. Moreover, since they were merchants by profession and had no formal knowledge of
law, their decisions lacked legal foundation. There was also no separation between the
executive and the judiciary, as the same individuals performed both administrative and
judicial functions.
At Surat, the President of the factory and his Council constituted a court to decide
disputes among Englishmen in accordance with their own laws and customs. They had
jurisdiction over both civil and criminal cases. Capital offences were tried by a jury, but
again, the President and his Council—being merchants without even basic knowledge of
English law—decided cases largely on the basis of their wisdom and common sense.
The judicial system also suffered from corruption. Native judges were notoriously
corrupt, and bribery was rampant.
Surat continued to be the chief trading centre until 1687. Thereafter, it gradually lost
its importance, as in 1687 the headquarters of the President and Council were transferred
from Surat to Bombay.

Black Town
In Black Town, the old indigenous judicial system was allowed to continue. At its
head stood the village officer, known as the Adigar (or Adhikari), who was responsible for
maintaining law and order.
The Adigar administered justice to the natives in the Choultry Court, which
functioned according to long-established customs and traditions. This court primarily dealt
with petty cases.
Under the Charter of 1600, the Company itself had no power to award death
sentences. The Agent in Council could impose such a punishment only with the sanction of
the local sovereign authority. Appeals from the decisions of the Choultry Court were taken
up before the Agent in Council.
At one stage, an Indian native named Kannappa was appointed as Adigar. However,
he misused his powers, which led to his dismissal. Thereafter, the Company decided to
replace native officers and appointed its own English servants to preside over the Choultry
Court.
CHARTER OF 1661 –
In 1661, the British Crown granted a charter to the East India Company which
conferred wide judicial powers upon it.
According to this Charter:
 The Governor and Council of Englishmen residing in the Company’s settlements
were empowered to hear and decide all types of civil and criminal cases, including
capital offences.
 They could also award any kind of punishment, even the death penalty.
 The cases of Indians living within the Company’s settlements were to be decided
according to English law, rather than their customary practices.
 These judicial powers could only be exercised by the Governor. The chief factory
and its Council were also authorized to send offenders for punishment either to
another settlement where a Governor and Council existed or directly to England.

SECOND STAGE – (1665 – 1683) –

Trial of Mrs. Ascentra Dawes (1665) and Reorganization of Judicial
Administration:
In 1665, a significant case tested the limits of the Company’s judicial powers. Mrs.
Ascentra Dawes was charged with the murder of her slave girl. The Agent and Council at
Madras, uncertain of their authority in such a grave matter, referred the case to the
Company’s authorities in England for guidance.
To deal with the trial, the status of the Agent and Council at Madras was raised,
allowing them to conduct the proceedings with the assistance of a jury. After the trial, the
jury returned an unexpected verdict of “Not Guilty”, and Mrs. Dawes was consequently
acquitted.
This case highlighted the defects and uncertainties of the existing judicial system.
As a result, in 1678, the entire judicial administration was reorganized. Both White Town
and Black Town saw improvements in their systems of justice, providing a more structured
and defined framework for judicial proceedings.

WHITE TOWN –
Court of Governor and Council as High Court of Judicature:
With the reorganization of 1678, the Court of the Governor and Council was
declared to be the High Court of Judicature at Madras.
 This Court was empowered to hear all cases relating to the inhabitants of both White
Town and Black Town, with the assistance of a jury.
 It also acted as an appellate court, hearing appeals from the Choultry Court.
 The Court decided cases strictly according to English law, thereby extending English
legal principles to the settlement.
 To ensure regularity, the Court was required to meet twice a week.
This marked a significant step towards a more formal and centralized judicial system
in Madras.

BLACK TOWN –
 Reorganization of the Choultry Court:
Along with the establishment of the High Court of Judicature in 1678, the Choultry
Court was also reorganized.
 The number of judges was increased from two to three, and all of them were
Englishmen.
 At least two judges were required to sit in the court on two days each week to
conduct proceedings.
 The Choultry Court was given jurisdiction over petty criminal cases.
 It was also empowered to decide petty civil cases up to the value of 50 pagodas (a
local coin).
 Cases of a higher value could also be heard by the Choultry Court, but only with the
consent of the parties involved.
Thus, the reorganization brought greater regularity, structure, and authority to the
Choultry Court, making it an important part of the judicial system in Black Town.

THIRD STAGE (1683 – 1726) –

Admiralty Court (1683 onwards):
On August 9, 1683, King Charles II granted a Charter to the East India Company
authorizing it to establish Admiralty Courts. These courts were to consist of:
 One person learned in Civil Law, and
 Two merchants,
With jurisdiction over mercantile, maritime cases, trespasses, injuries, and other
related wrongs.
A second Charter issued on April 12, 1686 reaffirmed these provisions.
The Chief Judge of the Admiralty Court was called the Judge Advocate. This
court had jurisdiction to hear and decide all mercantile and maritime cases.
 In 1687, the Company sent Sir John Biggs, a professional lawyer trained in Civil
Law, to act as the Judge Advocate. He administered justice not only in maritime
cases but also in civil and criminal matters.
 After Sir Biggs’s death in 1689, the Governor once again assumed judicial
functions.
 In 1692, the Company appointed John Dolben as Judge Advocate, but he was
dismissed in 1694 on charges of taking bribes.
 In 1696, the Company directed that members of the Council should serve in
succession as Judge Advocate. Following this, William Fraser, a merchant, was
appointed Judge Advocate. However, he resigned, and since no one else was willing
to take the office, the Company ultimately appointed the Court Registrar as Judge
Advocate.
Thus, the Admiralty Court, though established with the intention of creating a
professional judicial institution, suffered from instability and corruption, as appointments
were irregular and often lacked properly trained officials.

MADRAS MAYORS COURT (1688) –

Establishment of Madras Corporation and Mayor’s Court (1687)
 In 1686, the Government of Madras imposed a house tax on the residents of the city
to raise funds for the repair of the city walls. However, the local people resisted payment,
and the Company faced great difficulties in collecting the tax.
To overcome this problem, the Company decided to establish a municipal body that
would include both Englishmen and local Indians. The idea was that such a representative
institution would not only make tax collection easier but also involve the local population in
the city’s administration.
Accordingly, on September 29, 1687, the Madras Corporation came into existence.
It was the first municipal corporation in India.
 The Corporation consisted of a Mayor, 12 Aldermen (members of the municipal
legislative body), and 60 to 120 Burgesses (prominent citizens or representatives).
 It was decided that every year, a new Mayor would be elected from among the
Aldermen by the Aldermen and Burgesses.
 The retiring Mayor could also be re-elected.
 As part of this Corporation, a Mayor’s Court was established, which dealt with civil
cases and functioned as a judicial body within the municipal framework.
Thus, the formation of the Madras Corporation and Mayor’s Court marked a
major step in combining local governance with judicial administration, making it a
landmark in the history of urban administration in India.

Charter of 1683 and the Admiralty Court:

In 1683, King Charles II issued a Charter empowering the East India Company to
establish Courts of Admiralty in India.
The Admiralty Court was vested with wide jurisdiction. It was authorized to:
 Try traders who committed crimes on the high seas.
 Hear and determine all cases relating to maritime and mercantile transactions.
 Deal with matters of forfeiture of ships, piracy, trespass, injuries, and other
wrongs connected with maritime trade.
In administering justice, the Admiralty Court was directed to be guided by:
 The laws and customs of merchants, and
 The principles of equity and good conscience.
This Charter thus marked a significant step in regulating maritime trade and ensuring
proper judicial machinery for dealing with disputes and offences arising out of commerce
and navigation.

THE CHOULTRY COURT –

The old Choultry Court was recognized and allowed to continue by the Governor
after the reorganization of 1678.
 The number of judges was increased to three, and at least two judges were required
to preside over the trial of cases.
 The court met two days a week.
 It was empowered to try civil cases up to 50 pagodas (a gold coin, one pagoda being
equivalent to about three rupees) and petty criminal cases.
 Appeals from the Choultry Court could be taken to the High Court of Judicature.
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ADMINISTRATION OF JUSTICE IN BOMBAY

(1668-1726)
PERIOD 1668 – 1726
Transfer of Bombay and the Charter of 1668:
 The Portuguese acquired Bombay in 1534 from Sultan Bahadur Shah of Gujarat,
and it remained under their control for more than a century.
 In 1661, Bombay came to the English Crown as part of the dowry when Charles II
married Catherine of Braganza, the Portuguese princess.
 However, Charles II found Bombay to be a backward and economically
unprofitable territory, difficult to manage directly from England.
 Therefore, in 1668, he transferred Bombay to the East India Company for a
nominal annual rent of £10.

Provisions of the Charter of 1668:

 The Company was authorized to legislate for the good governance of Bombay.
 It was also empowered to exercise judicial authority on the island.
 The system of courts and procedure was to be similar to those in England,
marking a significant step towards the introduction of English legal practices in India.

Charter of 1668:
 The Charter of 1668 conferred full powers, privileges, and jurisdictions on the
East India Company.
 The Company was authorized to:
o Make laws, ordinances, and constitutions for the good governance of
Bombay.
o Impose punishments including fine, imprisonment, and even death penalty.
o Exercise powers of legislation and administration of justice.
This marked the beginning of the Company’s transformation from a trading body to
an administrative authority in India.

Judicial Reforms of 1670 (by Gerald Aungier):

1. Codification of Old Laws
 Gerald Aungier reorganized the old judicial set-up of Bombay (earlier initiated by
Oxenden).
 The laws were classified into six sections:
1. Freedom of Worship & Religion – granted to all inhabitants.
2. Impartial Administration of Justice – confirmation of existing rights and
recognition of fair trial.
3. Criminal Jurisdiction – establishment of a Court of Judicature for criminal
cases; Governor & Council empowered to appoint a judge.
 4. Registration of Property Transactions – sales of land and houses to be
properly recorded.
5. Miscellaneous Provisions – penalties prescribed for different crimes.
6. Military Discipline – punishment for disorder and revolt; death penalty for
sedition, insurrection, or rebellion.

2. Reorganization of Judicial Machinery:

 Aungier introduced reforms to gradually improve the system (instead of abruptly
replacing Portuguese law).
 In 1670, Bombay was divided into two divisions:
1. Bombay, Mazagaon, Girgaon (BMG)
2. Mahim, Parel, Sion, Worli (MPSW)
 A Court of Judicature was established in each division (Bombay and Mahim).
o Each court had five judges.
o The Customs Officer (Englishman) of each division presided over the court.
3. Defects Noticed & Further Reform (1672):
 Within two years, Aungier realized that the system of 1670 was defective.
 Dissatisfied with the functioning of the courts, he sought expert advice.
 In 1672, with the help of George Wilcox, Aungier prepared a new plan of judicial
administration for Bombay.

Judicial Development in Bombay (1672–1718):

1. New Judicial Plan of 1672
 Proclamation (1st August 1672): English law formally introduced into Bombay.
 Judicial Machinery Reorganized:
o A central Court of Judicature was established.
o Empowered to decide civil, criminal, and testamentary cases.
 Governor Gerald Aungier’s Inaugural Address:
o Declared that all inhabitants, irrespective of caste or creed, had equal
rights to justice.
o Emphasized independence, impartiality, and equality.
o For this, he is remembered as the “True Founder of Bombay”.
 Judges & Jury:
o George Wilcox appointed as Judge, assisted by other justices.
o Court sat once a week to try civil cases with the help of a jury.

2. Admiralty Court & Conflict with Council (1684–1690)

 Background:
o Judicial development disrupted by Keigwin’s Rebellion (1683–84).
o After suppression, attempts were made to establish a regular judicial system.
 Charter of 1683 (Charles II):
o Authorized Company to establish Admiralty Courts at places of its choice.
o Jurisdiction: maritime cases (trespass, piracy, injuries, wrongs on high seas),
and disputes in Bombay & nearby territories.
 o Court to be presided by a Judge learned in Civil Law, assisted by two
Company nominees.
o Cases to be decided by equity, good conscience, and laws/customs of
merchants.
 Admiralty Court Established (1684):
o First Admiralty Court in Bombay created.
o However, frequent conflicts arose between the Court and the Governor’s
Council over authority and jurisdiction.

3. Decline of Judicial Administration (1690–1718)

(a) Siddi Yakub’s Invasion (1690)
 Siddi Yakub, Admiral of the Mughal Emperor, attacked Bombay in 1690.
 This invasion caused a collapse of judicial institutions in Bombay.
(b) Absence of Regular Courts (1690–1702)
 For 12 years (1690–1702), no separate courts existed.
 Judicial functions reverted to the Governor and Council.
 Whenever the Company Directors in London were requested to send qualified
lawyers, they replied that honest and competent lawyers were difficult to find.
(c) Dark Period in Bombay’s Legal History (1690–1718)
 For nearly three decades (1690–1718), judicial administration was weak and
irregular.
 Courts either did not function or were controlled directly by the Governor and his
Council.

Revival (renewal) of judicial machinery: Period 1718-1728

 A new phase in Bombay’s judicial history began with the revival and inauguration
of the Court of Judicature on 25th March 1718 by Governor Charles Boone.
 Establishment:
o Constituted by the Governor and Council.
o Later approved by the Company authorities in London.
 Difference from Aungier’s 1672 Court:
o The 1718 Court was constituted according to the laws of the Company,
rather than being established solely by the Governor and Council.
 Composition and Powers:
o Consisted of ten judges.
o Empowered with wide jurisdiction over civil, criminal, and other legal
matters.
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 ADMINISTRATION OF JUSTICE IN CALCUTTA (1619-1726)

Grant of Zamindari Rights to the Company

 The English East India Company’s settlement at Calcutta was different from
Madras and Bombay in its origin and administration.
 24th August 1690: The Company constructed Fort William on the banks of the
Hooghly River to secure its trading interests and protect its factory.
 1698: Prince Azim-ush-Shan, Subedar of Bengal and grandson of Emperor
Aurangzeb, granted the Company zamindari rights over three villages: Calcutta,
Sutanati, and Govindpur.
 Significance of the Grant:
o The Company acquired powers similar to those of native zamindars.
o This included administrative and judicial authority over the villages,
effectively giving the Company the ability to collect revenue and administer
justice under the Mughal system.
 This event marked a historic beginning of British territorial authority in Bengal.
Criminal Justice in Calcutta under the English Company
 To handle criminal cases, the Company adopted the existing Mughal
administrative pattern.
 A Faujdari Court was established, presided over by the English Collector.
 Jurisdiction:
o Covered the three villages: Calcutta, Sutanati, and Govindpur.
o Dealt primarily with criminal cases of the native inhabitants.
 Powers of the Collector:
o Authorized to decide cases summarily.
 Common punishments:
o Whipping
o Fines
o Imprisonment
o Banishment (exile)
o Road work or forced labor

Civil Justice in Calcutta under the English Company:

 To handle civil disputes, the Collector presided over a Civil Court, also known as
the Court of Cutchery.
 Procedure:
o Most civil cases were referred to arbitrators by the Collector.
o The Collector decided cases summarily, guided by:
1. Prevailing customs and usages of the local population.
 2. In the absence of local customs, decisions were based on natural
justice and equity.
 Appeals:
o Allowed only in rare and important cases.
o Heard by the Governor and Council.
Importance of the Collector in Calcutta:
 In the judicial system of Calcutta, the Collector became a very important official.
 Powers and Responsibilities:
o Dealt with civil, criminal, and revenue matters.
o Authorized to decide petty civil and criminal cases involving Europeans
and natives.
o The Governor and Council handled serious criminal cases and important
civil disputes.
 Concentration of Power:
o All judicial and executive powers were vested in the Collector and the
Governor and Council.
o This overlap of authority created conflicts and confusion.
o Critics noted that such concentration of power in one person was “too great
a trust for a single individual.”

Effective Introduction of English Laws in India:

 The Charters of 1668 and 1726 allowed the East India Company to introduce
English laws in India for the first time.
 These laws were applied alongside the personal laws of Hindus and Muslims.
 Subsequent charters further accelerated the process of implementing English legal
principles in the Company’s territories.

Case Study: Mayor of the City of Lyons v. East India Company:

 Background:
o Martin, a native of France, left behind landed properties in Calcutta and
Oudh.
o Question arose whether English law prohibiting aliens from holding land in
England applied in India.
 Judgments:
1. Calcutta Supreme Court:
 Applied English law and declared the property escheated to the
Crown.
2. Privy Council (on appeal):
 Overruled the Supreme Court.
 Held that the English rule regarding incapacity of aliens to hold
land did not apply in a presidency town like Calcutta, which was in
a different country under a different government.
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