CIA – 3

Indian Legal and Constitutional History

The Role of Privy Council in Balancing Idealism and Pragmatism in the Indian Judicial
System

Submitted To:
Mrs. Chaitra R
 TABLE OF CONTENTS

I. Introduction ...................................................................................................................... 3

II. The Creation and Operation of Privy Council .............................................................. 4

III. Exporting and Implementing Western Concept of Law into India ............................. 6

IV. Interpretation of Hindu Law ........................................................................................... 7

V. British legal domination through Privy Council ......................................................... 10

VI. Privy Council: A success or Failure? ............................................................................ 11

Bibliography .......................................................................................................................... 13

TABLE OF CASES............................................................................................................... 14
 I. Introduction
The highest appellate authority for delivery of justice is the King of England, ever since the
Norman Conquest of 1066. This arises from the theocratic principle in England where the
King is acting through the power of God, and thus arose the principle of ‘rex non potest
peccare’, or ‘the king can do no worng’. Thus, the King is a fountain of Justice. However, the
right to be the ultimate authority of Justice was taken away in through the Star Chamber Act
of 1640, where the King-in-Parliament became the ultimate authority over the lower courts
within England1. The jurisdiction and significance of Privy Council grew along with the
Crown’s territorial possessions in the 17th century, where overseas Subjects were under the
crown and not under the British Parliament. Though the Parliament and Cabinet superseded
the Privy Council, or the Judicial Committee of the Privy Council as it later came to be called
in 1833, in the colonial territories, was the highest judicial power and it established a
complex system of law over the period of two centuries. The Privy Council’s major departure
from the other courts of England was that it dealt with various systems of law, over wide
jurisdiction of civil, criminal and admiralty and delivered justice for over 150 countries.

The power to appear before the JCPC was granted through the grace of the King, implying
that the King-in-Council had the right to grant or refuse leave to appeal. However, as the
Empire was established in India, a system of lower courts and administrative units were
established, the highest court of which, upon its discretion forwarded appeals to the JCPC
under certain circumstances. There are two types of appeals – “appeals as of right”, which
fulfilled certain conditions, and “appeals of special leave” which were undertaken despite not
fulfilling certain conditions but due to the royal prerogative to be the final resort in the
delivery of justice.

The JCPC, today is an important adjudicator in matters of constitutional law and separation
of powers, due to its rich experience in dealing with colonies of the Empire and
Commonwealth dependencies, and varied legal systems. For India, it is a rich source in the
interpretation and ascertainment of law, and it holds persuasive value in all courts of India.
However, questions arise when analysing the effect it has had on the legal systems it applied

1
MAHABIR PRASHAD JAIN, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY 335 (7 ed. 2016).
and whether it culled the development of ancient and medieval Indian jurisprudence, instead
of enriching it.

II. The Creation and Operation of Privy Council

In 1726, King George I issued a Charter to the East India Company, establishing Mayor’s
Courts in the three Corporations of the Presidency Towns in India. The Governor-General-in-
Council was the final and appellate authority for matters under 1000 pagodas, over which
appeals could go to the King-in-Council. Thus, the right to appeal before the King was
granted to Indians.

After the Regulating Act of 1773, where the British Parliament took a dominating partnership
role in the Company’s activities in India, wide powers were given to the Supreme court,
replacing the Mayor’s Court at Calcutta to dispense Justice. Appeals from the Supreme Court
at Calcutta went directly to the King-in-Council, bypassing the Governor-General-in-Council.
The Supreme Court was also allowed to decide the circumstances under which it shall
forward appeals to the King2. The Supreme Court had full authority to decide whether to
allow appeals in criminal cases to the King-in-Council, however, civil cases could appeal if
the subject matter of dispute lay above a thousand pagodas3. This clearly shows the
commercial interest of British parliament’s administration in India, over and above criminal
matters, which best be left to the lower courts to decide and dispose of, without consideration
to any gross violations of evidence collection or delivery of pure justice.

The Privy Council’s major focus also lay on testamentary and intestate jurisdiction due to the
massive wealth left behind by English servants of the Company, whose heirs were in
London4. Commercial matters in relation to insurance, debt, promissory notes were the next
major subject matter of the Privy Council.

The Settlement Act of 1781 severely impeded the working of the Supreme Court. The
monetary limit of appeal cases from Sadar Adalats in Bengal was now raised to 50,000
rupees. However, the ignorance of English legal procedure on the part of the parties and their
counsels played a more damaging role in making sure that many appeals to the Privy Council
were dismissed. The disorganized fashion in which the Privy Council was running itself was
also noted in Lord Brougham’s speech in the House of Commons in 1828, where he

2
Section 18 of the Regulating Act, 1773.
3
Clause 32 of Charter of 1726.
4
Jain, Supra note 1, at 336.
delineated the ills and shortcomings plaguing the Privy Council perpetuated by inexperienced
laymen giving binding and final decisions in important questions of law.

This led to reform in 1833 where the Privy Council became organized into a Judicial
Committee in an open court, where the procedure was vastly standardized and regulated
through the Judicial Committee Act of 1833. Some unique features of the newly reorganized
JCPC included – a court not bound by its previous decisions, a paradigm shift from all
common law courts in the world; absence of dissenting opinions among its member-judges
until 1966; and the constitutional anomaly that in practice it was a real court, however in
constitution it is a committee under the executive council of the King5.

The major issue with appeals from India until 1833 was the absence of proceedings on the
part of the appellants and respondents. Through the Judicial Committee Act of 1833, all
appeals to the Privy Council were disposed of by 18456.

After the Indian High Courts Act of 1861, and Civil procedure code of 1861, the system of
appeals to the Privy Council were elaborated and implemented. The Privy Council preferred
civil matters with an important question of law which had to be considered. Towards criminal
matters, it held a strict non-interference attitude until 1862, where a marginal attitude change
was taken to sparingly include a few criminal matters7.

The Privy Council has left behind detailed sea of information with regard to question in
constitutional and commercial law – through 2500 judgements from all over 150 colonies.
Through the respect which Indians had developed for the Privy Council’s decisions, the
common law doctrines and principles were strongly rooted into the Commonwealth nations.
Though criminal jurisprudence is overshadowed by other types of cases, the decisions of the
Privy council helped set up judicial systems in its colonies through respect for fair procedure
and high standards of justice8. The Privy Council served as a channel through which English
legal system was implanted into Indian psyche and the same legal ideas were important in the
formation of Indian legal system.

The Privy Council set the basis for the interpretation of personal laws. Though much can be
said about wrongful interpretation, one must consider the tyranny of distance and faulty

5
Id. at 338.
6
Id. at 349.
7
Id. at 352.
8
Id. at 356.
translation which faced the judges of the Privy Council when they decided upon matters of
personal law9. It is also opined by veteran statesman KM Munshi that the Privy Council acted
as a unifying force and the sole reason why law is uniformly interpreted in all of India is due
to the Privy Council. The Privy Council, though abolished in India in 1949, still holds great
respect in the minds of jurists due to its impartiality.

III. Exporting and Implementing Western Concept of Law into India

In ancient and medieval India, two entities were the major sources of law: the King and the
religious scriptures. India’s complex and greatly decentralized justice system was based on
one major concept reiterated in every facet of justice in ancient India: Dharma. Dharma is a
multifaceted term applied in every situation where a question of law arose – it represents the
battle and victory of good over evil within every individual being10.

Dharma, in essence, does not separate legality, morality and spirituality11. It is akin to Lex
Divina of Thomas Aquinas. “Questions of law” were majorly “questions of morality”, Hindu
jurisprudence directly applied a moral test upon the case in question. In any case of petty
offences, methods of repentance or ‘pashchaattaap’ are clearly prescribed in the shastras,
such as penance, prayer, fasting, and certain rituals. It connected legal aspect of a wrongful
act or omission with the spiritual aspect and effect it has on the psyche of the person who
committed the act. The remedies are prescribed for a person to apply it by himself, for
himself, upon his own volition, to trigger a person’s conscience mechanism. Societal pressure
to perform an act of repentance to absolve oneself of any known or unknown sins was also
high. Thus, many petty cases did not even need to reach any expert in the Vedas, Shastras
Mimansa or Manusmriti. They were easily solved within the walls of one’s home or temple.

In severe criminal cases, the representatives of the local ruler often dealt cruel punishments in
to impose a deterrent effect on the general public. In cases of marriage, inheritance,
succession, adoption and commercial cases, the laws prescribed in the Vedas and Shastras are
directly applied. In matters of statesmanship, diplomacy and political relations, the treatise of
Arthashaastra provide rich insight into the manner of conduct in politics in the era. Though it
was not strictly imposed upon anyone as the ultimate authority to decide political matters, its

9
Id. at 356-57.
10
Bhagawad Gita, Chapter 4, verses 7-8.
11
J P Suda, Dharma : Its Nature And Role In Ancient India, INDIAN POLITICAL SCIENCE ASSOCIATION,
http://www.jstor.org/stable/41854399 (last visited Sep 8, 2017).
principles (such as Mandala of enemies and enemies’ enemies) were practised and are still
practised today.

The advent of British legal ideas into India through the Charter of 1661, started in a slow
manner, almost inconspicuous in nature, until the Indians saw themselves, completely
surrounded and controlled by it during the 1800s. It started with s case of murder in 1641
which was tried according to English law upon the order of the Hindu Rajah12. The complete
assimilation of British legal ideas into India is testified by the fact that India remains a
common law country even after Independence.

The Charter of 1686 brought the system of Civil Law into India. It was mainly based on
Roman Law of Mercantilism13. Common Law was formally implemented through the
Judicial Charter of 1726. A variety of different courts were set up through trial-and-error
method by the British until the Indian High Courts Act of 1861.

Historian MP Jain praises the Privy Council of having unified the country’s judicial systems
from 1726 through 1861, at the time when there was little to no coordination between
different Supreme Courts, Sadar Adalats and High Courts. It provided a common system of
principles which had to be followed in every court in India. Statesman KM Munshi waxes
eloquent that the Privy Council established rule of law, and thus, democracy in India.

Through the commercial interest of the British in India, commercial and civil jurisprudence
expanded its acceptance and implementation through the successive acts like – Code of Civil
Procedure, 1861, Indian Contracts act 1872, Negotiable instruments Act, 1881, etc. The
increased the respect for the judgements of the Privy Council.

IV. Interpretation of Hindu Law

The major gift, or as some call it, burden14, of the Privy Council to Indian Law, is its massive
impartial interpretation of Personal Law.

The primary mistake which the British made while interpreting Hindu Law, is the assumption
that Hindu Law is uniform, and that Hindu Law only has religious sources in Vedas and
Mimansas. In 1775, Warren Hastings collected a group of 11 Brahmins to create a digest of
Hindu Law. This digest had a massive influence on the perception of Hindu Law15. It had a
heavy Anglo-Brahminical Bias, and a clear absence of Southern schools of Hindu Legal
thought, relying more of the Bengali and Banaras school of thought. The British were

12
Jain, Supra note 1, at 16.
predisposed to see Hindu Law through a Biblical sense, where canon law ruled all matters
relating to family law. They started searching for concrete sources of Hindu Law, without
taking into account the staggering diversity of Hinduism. Over time, European scholars’ work
on Hindu Law was taken to be authoritative(eg: Colebrook) and studied by Shastric Pandits
in India. Hindu Spirituality is highly metaphorical and indirect but Anglo-Hindu Law
rigidized the fluid system with a stubborn adherence to shastras, and shastras only.

In the case of Abraham v. Abraham (1863)13, where a Protestant woman of Anglo-Portuguese

descent, Charlotte Fox and her son are engaged in a property dispute with the brother of her
deceased husband Matthew, a Catholic convert from a caste of ‘untouchables’. The major
contention is whether the property should go to Charlotte Fox, according to Christian Law or
to the brother, according to Hindu Customary Law. her argument that they lived as pure
Englishmen, or Anglo-Indians throughout their married life, wherein Anglo-Indians refuse to
associate themselves with any aspect of Indian Culture. Charlotte was also armed with
numerous rich and influential Anglo-Indians who would corroborate her story. The brother’s
argument was that in their society, despite conversion, they held on to Hindu customs in
relation to all matters in the family, and thus by virtue of being blood brothers, he deserved
the property. He had produced many witnesses as well to explain his position. However, they
consisted of so-called “untouchable” people who had mass-converted to Christianity for
purely monetary benefits, and a clear assertion of racial superiority and bias is seen when the
nine-year battle ended with the victory of Charlotte Fox. In two years, the Indian Succession
Act of 1865, and Indian Christian Marriage Act of 1872 were passed. These two acts de-
recognize local Christian practices of India in favour of more rigid Protestantism-based Law
to establish a linear intestate pattern of succession14. If this was the treatment of local
Christian Personal Law by the British, one can only imagine the extent of non-adherence, or
rigidity applied when dealing with Hindu Law matters – two concepts alien to the true
concept of Change and non-permanence in Hindu spirituality.

In the case of Michael Pillai v. Barthe (1916)15, local Catholic Christians protested against the
move of the bishop to re-erect walls within the church to enforce caste separation among the
Christians. The main contention was between high caste Vellalas and Nadars. The Privy
Council upheld the caste distinctions which were prevalent centuries before the British entry

13
Abraham v. Abraham (1863) 9 MIA 195.
14
Madhu Kishwar, Codified Hindu Law: Myth and Reality, 29 ECONOMIC AND POLITICAL WEEKLY, 1994.
15
Kattalai Michael Pillai and Ors. v. Right Reverend J.M. Barthe (1916) 30 MLJ 423.
and allowed for the erection of the wall. The argument of indigenous Catholic was based on
orders of the Holy See, who advocated non-interference with local customs and usages as
long as they do not prove to be contrary to the religion, and the argument of customary right,
that the Vellalas have a right to impose caste distinctions and that they have a right to be not
polluted by lower castes. One also starts to sense a twisted interpretation of Customary Law
to favour the divide and rule policy followed in India.

Historian Menski on Hindu Law states that colonial Hindu Law was a “hybrid monstrosity”
which severely disregarded basic principles of Hindu Law.

Colebrook’s translations of Hindu Mitakshara Law and Dayabhaga were considered to be the
authoritative law-books in the Privy Council. However, in two cases, in two separate
instances – in Apaji Narhar v. Ramchandra (1892)16 and Balwant Singh v. Rani Kishori
(1898)17 it was established that Colebrook’s translations had gross mistakes in interpretation
and understanding of grammar18.

In the case of Kenchava v. Girimallappa (1924)19, the principle was laid down that where
Hindu Law is silent about, the principles of Natural Justice is to be followed, however, it does
not imply that a person is declared non-existent for matters of division of property just
because he has murdered the person from whom he was to inherit property, and that the
murderor’s son can inherit the property. However, after this above judgement, where an
uncomfortable question of law was answered partly by the Privy Council, in the Hindu
Succession Act of 1956, the Statute came clean stating that no murderer can inherit his
victim’s estate, and that the murderer shall be assumed to be dead before the intestate.

In the case of Rungama v. Atchama (1846)20 the Privy Council openly talks about its lack of
knowledge about the beginning, evolution and modern developments in Hindu Law and are
thus severely handicapped when dealing with issues in Hindu Law. The case of Balusu v.
Balasu (1899)21 further discusses the disadvantages faced when the judges are dealing with a
system of law and a language that they are totally alien to.

16
Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni (1892) ILR 16.
17
Rao Balwant Singh v. Rani Kishori (1898) LR 25 IA 54
18
Ludo Rocher, Can a Murderer Inherit His Victim's Estate? British Responses to Troublesome Questions in
Hindu Law, 107 JOURNAL OF THE AMERICAN ORIENTAL SOCIETY (1987),
http://www.jstor.org/stable/pdf/602947.pdf (last visited Sep 7, 2017).
19
Kenchava v. Girimallappa Channappa AIR 1924 PC 209.
20
Rungama v. Atchama (1846) 4 MIA 97.
21
Sri Balusu Gurlingaswami v. Sri Balusu Ramalakshmamma (1899) LR 26 IA 113
 V. British legal domination through Privy Council
While historians like KM Munshi and MP Jain may have waxed eloquent about the unifying
power of the Privy Council, historians like Warner Menski22 and Nicholas Dirks23 have
heavily criticized the unrelenting quest for uniformity of the British when it came to personal
law.

Cases like Michael Pillai v. Barthe show the court’s inclination to put customary law and
caste birthright against pollution by contact with lower castes, local customs like these to
receive precedence over explicit religious dictates. However, after Abraham v. Abraham, it
shows the British’s clear intent to give Protestant Law importance over Catholic practices and
over local practices carried on from centuries, in order to establish the British type of society
and British type of Christianity in India, and trying to ignore the ancient presence of
indigenous (Indian Congregations) or nation-based (French, Armenian, Syrian) who refused
to follow the dictate of the hierarchical church and instead followed the naturalized Hindu
customs.

This quest for domination through uniformity was not exclusive to Indian Christians alone.
The Khojas, Mappilas, Sunni Bohras and Cutchi Memons who practised local customs
instead of direct application of Shari’a Law, were also forced to come under a monolithic
structure presumably guaranteed by the Shariat24. Here, they were presumed by the Privy
Council to follow Hindu customs of inheritance. When female litigants fought over property
with their male counterparts, they were at a disadvantage because – neither can they use the
provisions of Islamic Law to obtain some portion of the property, nor can they claim to be
under Hindu Law to receive maintenance25. They are presumed to follow non-Islamic
customs, but different from Hindu customs too – and the procedure and facts of the customs
are unknown to the judges as well. The male litigants, would argue about the precedence of
customary law over any other law, however, they were disadvantaged by the Shariat Act of
1937.

22
WERNER MENSKI, HINDU LAW BEYOND TRADITION AND MODERNITY (2012).
23
NICHOLAS B. DIRKS, IN NEAR RUINS: CULTURAL THEORY AT THE END OF THE CENTURY (1998).
24
Chandra Mallampalli, Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating
Hinduness, 28 AMERICAN SOCIETY FOR LEGAL HISTORY (2010), http://www.jstor.org/stable/25800904 (last
visited Sep 7, 2017).
25
Id.
Hindu Law was dominated over in a multifaceted manner. It started with the assumption of
an absolute philosophy in Hinduism – which is untrue, Hinduism is pluralistic in nature. The
patronization of Sanskrit Colleges in Banaras and Calcutta led to the exposure of the Bengali
and Banarasi school of Hindu Legal thought to the British, while completely being in the dark
about, or pretending to be in the dark about other co-existent schools of thought, like the
Udupi’s dualistic school of thought or the Tamil school of thought. This led to a skewed view
of Hinduism, leading them to prepare a Hindu Code without regard for local customary
practices Marukayattam marriages, Dwayaya-mushayan adoption and Krittrima adoption
which were suddenly deemed invalid26.

Thus, customary practices were systematically invalidated in order to bring in a new set of
rules based on English Theological assumptions on religion through which they could divide,
fragment and control the Indian society in a better manner.

VI. Privy Council: A success or Failure?

The Privy Council, initially set up to deliver justice and implement personal law has
performed commendable work in the aspect of commercial law. In the aspect of personal law,
it is clear that the Privy Council tried its best, but upon the arrival of overly contradicting
opinions, often from the same religious text, and from a culture and language they barely
understand, they decided to standardize and bring uniformity to customary law, which has to
be intrinsic to the particular community in a particular area27.

The Privy Council stood as a mark of impartiality in most of its judgements, and any
partiality could either be attributed to lack of knowledge or racial bias in local Christian
personal law.

The establishment of Privy Council gifted India a rich basis of precedents upon which the
Indian Courts could function until Independent India develops enough precedents for itself.
The Privy Council brought widespread respect and acceptance among the Indian masses
despite all its pitfalls. It restored faith in the judiciary, essential to the establishment of rule of
law, an important foundation for democratic institutions.

The grave error in the interpretation of Hindu Law however, has persisted in its effects such
that over the 1940s and 1950s, a series of reforms were passed in the Parliament of

26
Madhu Kishwar, Codified Hindu Law: Myth and Reality, 29 ECONOMIC AND POLITICAL WEEKLY, 1994.
27
Jain, Supra note 1, at 356-57.
Independent India, which were based on certain archaic decisions of the Privy council which
very much departed from the original principles of Hindu Law28.

The Privy Council’s judgements’ still hold persuasive value in Indian High courts, despite not
being bound to follow any precedents itself. The Privy Council is also a unique constitutional
anomaly, the only one of its kind – which combined thee executive and the judiciary in a
tightly woven manner to deliver justice in unexplored fields of law – especially civil law
system and personal law. Many unanswered questions of law were answered and confusion
was removed. These judgements were the basis for many colonial acts, which Independent
India follows even today.

28
Kishwar, Supra note 26.
Bibliography
 MAHABIR PRASHAD JAIN, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY
(7 ed. 2016).
 Bhagawad Gita, Chapter 4, verses 7-8.
 J P Suda, Dharma : Its Nature And Role In Ancient India, INDIAN POLITICAL SCIENCE
ASSOCIATION, http://www.jstor.org/stable/41854399 (last visited Sep 8, 2017).
 Madhu Kishwar, Codified Hindu Law: Myth and Reality, 29 ECONOMIC AND
POLITICAL WEEKLY, 1994.
 Ludo Rocher, Can a Murderer Inherit His Victim's Estate? British Responses to
Troublesome Questions in Hindu Law, 107 JOURNAL OF THE AMERICAN ORIENTAL
SOCIETY (1987), http://www.jstor.org/stable/pdf/602947.pdf (last visited Sep 7, 2017).
 WERNER MENSKI, HINDU LAW BEYOND TRADITION AND MODERNITY (2012).
 NICHOLAS B. DIRKS, IN NEAR RUINS: CULTURAL THEORY AT THE END OF THE CENTURY
(1998).
 Chandra Mallampalli, Escaping the Grip of Personal Law in Colonial India: Proving
Custom, Negotiating Hinduness, 28 AMERICAN SOCIETY FOR LEGAL HISTORY (2010),
http://www.jstor.org/stable/25800904 (last visited Sep 7, 2017).
TABLE OF CASES
 Abraham v. Abraham (1863) 9 MIA 195.
 Kattalai Michael Pillai and Ors. v. Right Reverend J.M. Barthe (1916) 30 MLJ 423.
 Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni (1892) ILR 16.
 Rao Balwant Singh v. Rani Kishori (1898) LR 25 IA 54
 Kenchava v. Girimallappa Channappa AIR 1924 PC 209.
 Rungama v. Atchama (1846) 4 MIA 97.
 Sri Balusu Gurlingaswami v. Sri Balusu Ramalakshmamma (1899) LR 26 IA 113